Concerns about infections post-pandemic could impact future jury trials, experts say

Each time criminal defense attorney Marc Agnifilo delivers a closing argument in front of a jury box where panelists sit shoulder to shoulder, he’ll say something to remind them that his client’s right to be judged by peers comes from “the epicenter of our Constitution.”

Then after the 12 jurors also hear from the prosecution, they deliberate on the defendant’s fate in closed quarters — rooms that can be cramped spaces.

“We have been having trials the same way for 230 years. A trial is one of the only things that hasn’t become ‘virtual,’ ” said Agnifilo, who represented now-late Town of Oyster Bay Supervisor John Venditto in his federal corruption acquittal.

“Being all together in a public place with the press and the community is what makes it a trial,” the Manhattan-based lawyer added.

But the new age of social distancing during the coronavirus pandemic has forced many courts, including state courts in New York, to transition at least temporarily to virtual operations to carry out priority matters.

Legal experts say the mechanics of future jury trials in New York and across the country could be different when court operations fully resume and concerns about infections linger.

Experts agree that among post-pandemic challenges awaiting participants in the court system will be the difficulties of convincing potential jurors to take part in trials and protecting the health of the panelists and others who will share the same spaces.

Adapting to the new reality “may mean differences in our procedures” or even instituting more of a delay in jury proceedings after most court operations resume, Agnifilo said.

Nassau Administrative Judge Norman St. George, in a virtual Town Hall meeting the county’s Bar Association hosted for members Wednesday, said he didn’t know when trials — all postponed in New York state courts — would restart.

But the county’s top judge said he personally didn’t “see anything happening before the fall.”

St. George also said state court officials are “starting to discuss how the physical courts will be able to recommence with social distancing” and “if we are going to be able to conduct jury trials with social distancing.”

After the pandemic, some of the trouble filling jury panels will be related to financial hardship, said Jo-Ellan Dimitrius, a jury consultant who worked for the defense in O.J. Simpson’s criminal acquittal and for the government during its successful prosecution of Enron’s chief executives.

“Their first concern is going to be ‘Is my employer going to pay for my jury duty when … I just came out of either being furloughed or being unemployed for a period of two to three months?’ ” Dimitrius said of millions of potential jurors who have faced lost wages or layoffs during the pandemic.

The jury consultant also said judges will have to make it clear to potential jurors that courtrooms have been sanitized.

Besides that, court officials will have to consider other changes focused on safety and hygiene — such as putting would-be panelists in every other seat instead of right next to each other, the Nevada-based consultant said.

But Dimitrius added that the concept of an “online jury” or a jury serving remotely wouldn’t work because those panelists’ service could be corrupted too easily by outside influences.

Mineola defense attorney Nancy Bartling said she believes that relocating jurors from courtrooms to bigger courthouse spaces to watch trials remotely in real time also wouldn’t work because defendants could argue the jury physically did not see the evidence.

Bartling, who practices law in state and federal courts and handles cases that include allegations of fentanyl trafficking and corruption, said she could foresee judges asking potential jurors to sign health affidavits guaranteeing they’re COVID-19-free.

She also speculated about the addition of glass partitions between juror seats — shields like some groceries stores recently put up at checkout lines to separate customers and employees.

“Practically speaking, you can’t have these people on top of each other … Will they only allow jury trials in rooms that the jurors can be spread … six feet apart?” Bartling said. “That is going to completely stall the entire system.”

Judges, the attorney said, also will have to deal with new claims about why potential panelists feel they can’t serve as jurors.

“It’s not about whether or not they can get to pick up their kids after school or they’re going to lose time at their job. You’re dealing with their health,” Bartling said.

A recent survey by Los Angeles-based jury consultancy firm DecisionQuest asked questions about coronavirus of about 900 participants identified as potential jurors living in six major metropolitan areas that included New York City, said Bob Bettler, a psychologist who leads the company’s Atlanta office.

The survey found a large majority of participants had high levels of concern about becoming infected, with 51% saying they were “very concerned” and 33% “somewhat concerned.”

The pattern was essentially the same across locations, genders, education levels, family incomes and ethnic groups, according to survey, which also found older participants were slightly more concerned about contracting coronavirus than younger ones.

Bettler said the quality of potential jurors could be a huge issue post-pandemic, with senior citizens in general becoming “almost barred” because of health concerns.

The psychologist said he could picture potential jurors undergoing temperature screenings or even coronavirus tests.

Coronavirus testing for potential jurors will be a must, according to Pace Law School Professor Bennett Gershman.

“If you didn’t do that, how could you be sure that the jury that they’re selecting might not pose a serious danger in terms of health to everybody else in the courtroom?” he added.

The pandemic, the professor said, will impact every facet of the court system, including when it comes to trying to select a fair cross-section of the community for a jury and making sure panelists can focus “without worrying about who’s sitting next to them in the jury box.”