Goal is to balance the right to a speedy trial and safety of those in the courtroom
With the help of experts, the Cheshire County Superior Court in Keene is gearing up for the Granite State’s first-ever pilot jury trial since Governor Sununu’s stay-at-home orders went into effect over four months ago. The trial is scheduled for Aug. 24.
With close to 400 trials canceled since mid-March, according to Chief Justice of the Superior Court Tina Nadeau, targeting the oldest cases and those with incarcerated defendants will be a priority moving forward.
The case being tried in August, which Nadeau expects to be completed in one or two days, is part of the court’s pilot jury program, which has been in the planning stages since March.
At the start of the pandemic, according to Nadeau, the court was concerned with striking a balance between maintaining the right to a speedy jury trial and the safety of those entering the courtrooms.
“One idea was to have a virtual jury trial,” Nadeau said, adding that constitutional concerns and the potential for technical glitches became apparent very quickly. “Some of the concerns about this were ‘how does a virtual trial affect the right to cross-examine, and can the jury accurately examine the behavior of the witness while appearing virtually.’” Nadeau said the upcoming trial “isn’t going to be perfect, but it is going to be constitutional. There may be challenges, and there should be, because lawyers do their jobs well and we will litigate any issues and decide whether there’s a better way to do things.”
Health experts
The pilot trial will happen in two phases, she said. Phase one will include jury selection on Aug. 19 and phase two will be the trial itself.
According to Nadeau, the court has been consulting with two experts in order to ensure the health and safety of all of those involved in the pilot jury trial.
Lawyers will be required to maintain 10 feet of distance from jurors.
Witnesses will sit in a chair in the well of the courthouse in front of and to the right of the bench, and when attorneys present an exhibit, they will be required to wash their hands before and after touching the exhibits.
One issue of concern that was brought to the attention of the pilot jury planning team was adequate air filtration for the courtroom. Another issue is air filtration. The recommended minimum efficiency reporting value, or MERV, rating is 13. The Cheshire County courthouse is currently rated at 8.
“We don’t have to revamp the whole system but we’re making some tweaks,” Nadeau said. “We know, as we roll this out to other counties, that not every courthouse has the same ventilation system. Even if it’s not optimal, as long as people are wearing masks and following all of the other protocols, it’s still adequate. I feel very confident that we’re going to be able to keep everyone healthy and safe.”
Jurors will be screened with verbal questions regarding their recent health history, but their temperatures will not be taken, she said.
“Taking temperatures isn’t effective,” Nadeau said, adding that after consulting with Bromage and Ballard, there was concern about the risk of spreading the virus through thermometers.
One of the questions that Nadeau said has kept her up at night is what would happen should a juror test positive for Covid-19.
“Generally, we have learned that you don’t have to shut down the whole trial. We may have to. We’ll have to poll other jurors to make sure they’re comfortable enough going forward. What I’ve learned from our experts, though, is it doesn’t mean the trial will automatically shut down,” Nadeau said.
Further precautions to maintain health and safety include limiting the number of people allowed to leave the courtroom during breaks. This will be limited to the judge and the lawyers, according to Nadeau.
“The jury will remain socially distant in the courtroom, and if a juror needs to use a bathroom we’ve received advice on how to do this safely,” she said, explaining that bathrooms will be limited to one person at a time and that hand sanitizer will be provided in the bathrooms.
Nadeau said the plan is to identify cases in Hillsborough North, Strafford and Belknap counties for pilot jury trials in September and October.
“The great idea about a pilot is that we can run a jury trial safely and then figure out whether we need to make adjustments in different counties. And we’re focusing on what the science tells us. We’re looking at this every single day.”
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