Adapting to the Present and Maybe to the Future Too
The Bencher—July/August 2020
By Chief Judge Barbara M.G. Lynn
The coronavirus outbreak forced the federal court system to adapt in ways we never expected. District courts around the country continued all jury trials for at least two and a half months, and most took further steps to drastically reduce the amount of judicial work conducted face-to-face. For criminal proceedings, most of the work prior to trial has been conducted remotely; the only exceptions have been initial appearances, detention hearings, and other pretrial matters in which remote proceedings were not feasible or in which the defendant did not consent to a remote proceeding as authorized by the CARES Act.
Many criminal defendants in the Northern District of Texas have waived their rights to live proceedings and have consented to video conferences. This measure reduced the risk of coronavirus exposure to parties, counsel and the court, but this new way of conducting proceedings is accompanied by many technical challenges. Many Northern District defendants are detained in state and local facilities with limited access to computers and stable internet, and the Dallas division often has to compete with state courts for the few resources available to conduct video proceedings. The overloaded local facilities have accommodated our court to the maximum extent possible, but even when remote proceedings are scheduled, video conferences sometimes suffer from the participants’ limited bandwidth and consequent disconnections, as well as from interface issues that prevent the microphone and camera from being used during the next session. We are all adapting, so troubleshooting is a constant, but everyone, particularly the court’s IT staff, is working earnestly to make it work as well as possible.
Hearings via video conference have helped to maintain something akin to normalcy in a situation that is certainly abnormal. I have also held several civil hearings and found that remote video technology works extremely well in these cases—almost as well as a live proceeding. I think more of these hearings will be conducted post-pandemic because they can save clients a great deal of time and money and will provide the concomitant benefit of offering new opportunities for junior advocates to argue.
I worked from home for two months, and I am now back in the office. In fact, as of this writing, I have just conducted a short criminal jury trial, reportedly the third in the nation since the middle of March. Our goal throughout was to continue to administer justice while ensuring the health and safety of trial participants. Of the 100 jurors summoned, more than 40 of those who had filled out extensive questionnaires stated their willingness to serve. Voir dire was conducted three times, so that no more than 16 members of the venire would be present at a time, and they were spread out across the central jury room. All members of the venire wore face shields provided by the court so that the lawyers and I could observe their expressions, and everyone in the room was wearing gloves and a mask or shield.
After the jury was selected, they rode the elevator two at a time to reach my courtroom on the 15th floor. The jurors sat spaced out in the gallery, where observers usually sit, and the lawyers faced toward them. Because the lawyers had their backs to me, I had a tripod camera set up in the back of the courtroom to broadcast the jurors’ view to a monitor on the bench. Lawyers communicated with the defendant and co-counsel by computer. The witnesses testified from the jury box behind moveable plexiglass screens, allowing them to remove their masks, thereby improving the jurors’ ability to assess their credibility. After each witness concluded his or her testimony, the plexiglass screens, the microphone, and the witness’s seat were thoroughly cleaned. Except for the jurors, everyone was required to wear gloves, and other than testifying witnesses, everyone wore a face covering.
Because the jury occupied almost the entire gallery, there was little space in the courtroom for spectators. We broadcast the proceedings to another courtroom so that members of the public and court personnel, including law clerks and interns, could watch the trial. Broadcasting a trial to another room presents many of the same challenges virtual proceedings do, including muffled and delayed audio, but this option ultimately proved a relatively effective way to ensure the trial was still open to the public.
I partially sequestered the jurors so they would not leave our court floor during the day. They ate lunch we provided for them and took breaks and deliberated in another large courtroom across the hall. At the trial’s conclusion, I thanked the jurors for providing their service during such an unusual and unprecedented time. I asked each of them to fill out a form summarizing their thoughts on the trial and the precautionary measures we took. The feedback was overwhelmingly positive; even those jurors who expressed concern on their initial questionnaires said they felt safe throughout the trial and were able to focus on what the lawyers were saying rather than their fears about coronavirus. This response reassured me that even during a health crisis it is possible to conduct a fair trial safely and that citizens would continue to perform their civic duty to answer the call to jury service. The trial was, however, very resource-intensive, and our approach will have to change for longer, multi-defendant, and complex cases.
The real question is when, or whether, things will return to “normal.” For the time being, though, it is better to solve problems as best we can and focus on how we can make our system work for the foreseeable future. Even though we made extensive changes to our normal procedures for this trial, there are options we have not yet attempted. For example, I offered to conduct voir dire via a web-based video platform, making arrangements for those without access to internet or video-capable devices, but counsel did not agree. In the future, remote voir dire, particularly in civil cases, might occur. Even a remote civil jury trial is a possibility. Some courts are considering it, and I certainly do not rule it out. Life may have changed permanently in many respects, and the judicial system needs to be flexible and innovative so that the “way it’s always been done” does not impede our ability to recognize and embrace creative ways of administering justice, even when natural—and unnatural—disasters get in our way.
Barbara M. G. Lynn is the chief judge of the U.S. District Court for the Northern District of Texas in Dallas, Texas. She is a member of the Honorable Barbara M.G. Lynn American Inn of Court and a member and a past president of the Patrick E. Higginbotham American Inn of Court. Lynn also serves on the American Inns of Court Board of Trustees as vice president.
Editor’s Note: Chief Judge Lynn has provided a handbook with detailed information about how the trial was conducted. It is available for download on our website.