Will people actually show up for jury duty? Should the defendant wear a mask? How will the public watch? Will witnesses who come from out of state need to quarantine for 14 days?

Maine will soon convene its first jury trials since March, and the courts are trying to answer questions that have little to no precedent in law or history. The cases that will be heard this month in Bangor and Augusta will test the capabilities of the state’s legal system during the pandemic.

“Every trial has a few curves thrown at you that you didn’t think about,” Superior Court Justice Robert Mullen said. “You rule as they come up, and there’s just going to be a lot more curves while we go through this process with the pandemic.”

But the constitutional rights of defendants could be at odds with public health recommendations for reducing the spread of the coronavirus, and the courts will be required to uphold both.

“You can’t just say, ‘I’m going to protect the public and forget about the rights of the accused,’” defense attorney Tim Zerillo said.

Only one third of the federal district courts have said jury trials can resume; Maine is not among them. But the National Council for State Courts reported that most states, including the rest of New England, have already resumed or plan to do so in the coming weeks.

Paula Hannaford-Agor, the director of the council’s Center for Jury Studies, said she is not aware of any recent outbreaks of COVID-19 linked to the return of jury trials in other states. But the pandemic has still disrupted trials in other ways.

In March, a court in Georgia notified more than 100 people from a jury pool when one tested positive; a judge there later died from the virus. In Ohio, a defendant collapsed during his trial in May, later testing negative. This month, a judge in Oklahoma declared a mistrial because he started experiencing symptoms of the coronavirus.

“We have to do jury trials,” Hannaford-Agor said. “We also have to do them very, very carefully. It is life or death, not only for the jurors themselves, but also for everyone they interact with.”

NATIONWIDE CHALLENGE

Across the country, few criminal cases go to jury trials. An estimated 97 percent of state and federal cases end with plea agreements. The Maine Judicial Branch could not provide any data about the number of trials in state courts. The federal courts in Maine held 45 criminal trials in 2019, but just three took place in front of a jury. During that same period, the government filed nearly 300 new criminal cases.

Still, the right to a jury trial is fundamental to the justice system. Both law and tradition call for those trials to happen in person, so when the coronavirus descended earlier this year, nearly every state put them on hold for months. Maine courts canceled all but the most emergency events, like hearings about bail or child protective cases. Now, as criminal cases pile up and defendants wait in jail, states are trying to figure out how to bring juries back to courthouses.

A few courts went virtual. Texas held the country’s first criminal jury trial on Zoom last month. New Jersey is planning to do jury selection over video and trials in person. More courts are back in person with new precautions. Oregon was one of the first to resume jury trials in May. Utah has allowed only a handful of counties to resume jury trials, but others are still on hold. Neighboring New Hampshire chose a rural county for its first trial in August and is planning four trials in October.

Maine decided to start by convening juries in person in two counties later this month.

In Penobscot County, the court will hold a trial for a man who was charged with murder in 2017. He has been in jail ever since his arrest, and the Attorney General’s Office said his prosecution has been pending the longest out of its caseload. That trial could take up to three weeks.

In Kennebec County, the court picked juries Friday for two trials. District Attorney Maeghan Maloney said both defendants are charged with operating under the influence, a Class D crime. Those trials are scheduled for two days each in coming weeks. Neither is in custody. Maloney said the court gave priority to defendants who are in jail, but none chose to have a jury trial this month.

Court officials have described these cases as pilots, meant to iron out the wrinkles that will surely arise. Judges, clerks, attorneys and advocates will be watching closely to see what happens during the trials – and after.

“What happens or doesn’t happen will affect what happens or doesn’t happen across the state,” Mullen said.

THE JURY EFFECT

In the past, jury selection could brings hundreds of people to a courthouse. That, of course, is not an option right now. Instead, the courts sent questionnaires by mail and asked potential jurors to come to the courthouse in waves.

Peter Schleck, the manager of operations for the Penobscot County Courts, said the clerk’s office would normally summon 300 jurors for a murder trial. For this case, he summoned 500. Superior Court Justice Harold Stewart, the trial judge, said 375 people actually returned their questionnaires, and roughly 130 people advanced to the next round of selection. The pool will keep shrinking until the court picks 12 jurors and four alternates.

Those questionnaires included routine items about each person’s ability to be impartial, but they also asked about hardships caused by the pandemic. People can already be released from jury duty for multiple reasons, but the court is excusing those who have concerns related to COVID-19 – for example, people who have medical conditions that put them at higher risk.

“If you want to go for dinner at an indoor restaurant or take your motorcycle to Sturgis or get your hair cut, that’s your personal choice,” Hannaford-Agor said. “But jury service is compulsory. … (The courts) are especially concerned about protecting public health and safety, advertising and doing a lot of public education about the steps that they’re putting in place so people feel comfortable reporting for jury service.”

Experts and attorneys have warned that the risks of COVID-19 could skew juries. People who are older or who have compromised immune systems might be less likely than usual to serve. People of color have also been disproportionately impacted by the virus and could therefore be reluctant to participate.

“You are not going to get a fair cross section of your community in that jury pool,” Zerillo, the defense attorney, said. “Because there will be a vulnerable subset of people that are going to be left out. As a result, you’re not picking from a jury of your peers.”

The courts tested the waters in August when they reconvened grand juries. Those groups decide whether prosecutors have probable cause to file felony criminal charges against people. Maloney, who is the head prosecutor in Kennebec and Somerset counties, said she was encouraged by the turnout for that process. When she asked that jury pool if anyone had reservations about coming to court during the pandemic, she said no one raised a hand. But she said the court’s ability to restart trials will depend on whether potential jurors show up to court.

“If we don’t have jurors who are willing and able to serve, we’re not able to proceed,” Maloney said.

THE MASK IMPACT

The trials themselves will also look different.

The state chose to hold the first trials in Bangor and Augusta because they have large and modern courtrooms, which is not the case across Maine. But even those rooms are not big enough to hold everybody who might want to watch a trial and still accommodate social distancing.

In Bangor, the jury will be spread out in the area where the public usually sits. The public will have to watch on a video feed in another room to protect the courtroom capacity. The jurors will later deliberate in another courtroom where they have more space than the usual conference room.

Everyone will also be required to wear masks, a mandate that has been subject to debate.

In the murder case, defense attorneys Stephen Smith and John Baldacci Jr. objected to the masks in a motion last month. They represent Carine Reeves, who is Black. They argued that jurors could be biased against Reeves if they see him in a mask, and cited a study from North Carolina researchers that found Black men were at greater risk of racial profiling when wearing certain types of face coverings. The defense also argued that witnesses should not wear masks because their faces would be partially hidden, which would infringe upon the defendant’s constitutional right to confront them in court.

“The defendant is concerned that precautions due to COVID-19 will inadvertently prejudice him in the eyes of the jury and create an environment historically associated with racism and negative connotations against the defendant based solely on his race,” their motion said.

Assistant Attorney General Leane Zainea objected to that motion in a hearing last week. She said the defendant would need to either have a trial under the current rules or wait until the courts lift the mask requirement.

“Although the defendant does have constitutional rights, those constitutional rights have to be balanced against the health and safety of all individuals involved this process,” she said.

Stewart issued his ruling on Thursday that no one would be exempt from the mask requirement. He pointed to the North Carolina study, which suggested that a surgical mask did not carry the same risk of racial profiling as other types of face coverings. He also said the jury selection process includes questions related to race, which are meant to identify people who harbor bias.

“In fact, in the court’s view, there is greater risk of prejudice to Reeves if he was not to wear a mask. … Some jurors could be angry that someone in their presence was unmasked, risking spread of infection, while others might resent that they are not allowed to remove their own mask,” Stewart wrote in his order.

Other defense attorneys are wary of face coverings, however.

Walt McKee, a defense attorney in central Maine, said none of his cases are on the trial list for September, but he would also object to masks in the courtroom. He suggested that social distancing and Plexiglas barriers could reduce the risk of spreading disease instead.

“Juries have to assess credibility in very limited ways,” McKee said. “The whole idea with having people there in front of a jury, saying something to a jury, is fundamental to the process. If you’re going to have everybody wearing masks, it really takes away from one of the most important pieces of the credibility determination.”

Maloney said she doesn’t object to masks, but she wants to make sure those worn in court are “neutral.” To her, that means no slogans or obvious messages that could distract or influence the jury.

“It’s not ideal,” she said. “However, the question is not whether it’s ideal. It’s whether it meets the constitutional standard. As long as people are coming in person to testify, … then it does.”

During the hearing last week, the parties in the Reeves case also haggled about logistical details, like how to display exhibits to any experts who will testify by video (the defense attorneys said they would use Zoom) and who will disinfect the witness stand after each person (most likely, the witness themselves). None of the trials this month involve witnesses from out of state, but attorneys said they would likely have to follow the same guidelines as other visitors (a 14-day quarantine or a negative COVID-19 test).

“That is partly what these first two sets of trials are designed to do, to tell us, ‘We thought about this issue, but here’s one that we didn’t think about,’” Superior Court Justice Thomas Warren said.

DEFENDANTS WAIT

Meanwhile, most of the people who are incarcerated in Maine jails are waiting for trial. At the end of August, the county jails held 1,480 people. Nearly 1,300 – 88 percent – had not yet been convicted of the charges against them.

McKee worried that the mounting backlog of criminal cases could mean people wait two or three years between arrest and resolution. That delay is especially stressful for people who are in jail, but it can also weigh on people who have been released on strict bail conditions.

“There are always defendants who will, because of the stress of just not having it done, plead guilty to get a case over with,” he said. “The longer the delay, the greater the risk that happens.”

Zerillo said the courts should be releasing more people on bail during the pandemic. He said he doesn’t have any clients who are in jail right now, and he doesn’t want to take their cases to trial until the mask mandate and other restrictions are lifted.

“None of my clients are pushing to have their trials heard until after the pandemic is over because they believe that they need to exercise their full rights to confront witnesses,” he said.

But others said the courts can’t wait any longer.

“I think it’s time we try a homicide case,” Deputy Attorney General Lisa Marchese said. “Obviously everyone has concerns, but I know all the parties involved will be very careful. I need to be cautiously optimistic that it will go well.”

McKee said he does feel like the courts are ready to try to bring juries back.

“My first court appearance, I was a little apprehensive,” he said. “As I’ve had more court appearances, I feel more comfortable. I think it is a good idea, and we’ll see after we’re done just how good an idea it is.”

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