The Massachusetts Trial Court has pushed back its earliest possible restart date for in-person jury trials from Friday to Nov. 9 due to coronavirus concerns.
The extension is necessary to create a safety plan, according to a Massachusetts Superior Court press release.
Jury trials were suspended in March, according to various COVID-19 orders issued by the state’s Supreme Judicial Court.
Frank Fernandez, a Boston attorney practicing criminal and personal injury law, said officials must balance safety and the need for a fair trial.
“You can’t force people to come in when their health is at risk,” Fernandez said. “So, it’s the doctors and scientists that have to tell us when they think it can be safe and how it can be done.”
Americans have the constitutional right to have an in-person trial where a prosecutor can cross-examine and the jury can judge if a witness is telling the truth. When trials are done online, juries are less able to judge witness credibility, according to Fernandez.
“You have these people that are in custody being exposed to a high risk of COVID-19,” Fernandez said, “who are awaiting a trial and not able to have one because of the pandemic and the inability to do it in a safe way.”
Retired federal judge Nancy Gertner, a senior law lecturer at Harvard University, said the months-long hiatus was and continues to be necessary because of the pandemic.
“They’re trying to move cases where people are in custody, and that’s terribly important,” Gertner said. “But, that has to give way to a public health emergency. There’s no way around it.”
Gertner said in-person jury trials are crucial because they cannot be replicated through online meetings. She said conducting trials virtually compromises the judicial process because there is no sufficient way to monitor how jurors act during a virtual trial.
“There’s something about the formality of the courtroom that communicates to a jury that this is serious,” Gertner said. “In a wired world, and an internet, social media world, frankly, there’s no way of meaningfully policing what jurors are doing when they’re just on screen, as opposed to when they’re in the courtroom physically.”
Gertner said until it’s safe, the courts should release those awaiting trial to protect them from COVID-19, because prisons emulate “complete petri dishes” for the virus.
Bail reform, she said, is also necessary to protect people in custody.
“It’s not necessarily a choice between terrible alternatives,” Gertner said. “We can actually make those choices easier.”
