Alas, the trip has been a long one. It’s frustrating to feel that any destination — whether it’s the end of a long family road trip or a return to in-person court proceedings — is just around a corner that never seems to come.

Are we there yet? How much longer?

Despite valiant efforts by the legal community across the United States to conduct judicial business during the COVID-19 pandemic, some aspects of the justice system are suffering.

Few in-person jury trials were conducted in 2020, prompting a backlog that will take years to resolve. And the hope that judicial business would return to normal has been dashed by the persistence of the COVID-19 virus in local communities, prompting a fresh round of lockdown orders, illness among lawyers and court personnel, and reluctance among the public to serve as jurors for in-person proceedings.

Criminal proceedings are a particular problem. Most attorneys believe that the constitutional rights to a jury trial, to a speedy trial, and to confront witnesses in a criminal proceeding cannot be lawfully provided by remote technologies.

This state of affairs is having consequences for civil litigators, too. For civil litigants who want a jury trial, the choice is to accept remote trials or to fall in line behind the growing queue of criminal cases awaiting disposition.

Courts’ inability to set jury trial dates has an additional negative consequence for all litigants: The certainty of a trial date is a powerful impetus for parties to seriously assess their legal position and talk settlement or, in the case of a criminal matter, a bargain and guilty plea. Without a firm trial date, case matters can languish.

California: Virtual Criminal Justice Is Not Possible

For example, in San Diego County in California, the backlog of criminal trials exceeds 1,500, with 400 of these cases involving in-custody defendants. According to Presiding Judge Lorna A. Alksne, no amount of virtual justice will meaningfully chip away at this mountain. In a Dec. 30 order on prioritization of jury trials (PDF), Judge Alksne described the local situation like this:

• Remote jury trials in criminal cases require the defendant’s consent.
• “Many if not all defendants” will object to a remote jury trial.
• Remote jury trials present challenging juror selection and other juror-related issues.
• Few county courtrooms and jails are technologically equipped to handle remote jury trials.

San Diego County courts already conduct nearly 300 remote non-trial criminal hearings each day. “On most days the court’s resources in the jail facilities are stretched to capacity with respect to conducting these remote non-trial hearings that are also vital to the protection of a criminal defendant’s rights,” Judge Alksne wrote. “Accordingly, it is logistically impossible for the court to simultaneously hold all of these hearings and also conduct numerous trials remotely.”

Nor are in-person jury trials a viable solution right now. Judge Alksne observed that, due to social distancing imperatives and the need to equip courtrooms with protective measures, few jury trials can be conducted on courthouse premises. In-person jury trials are also burdened by an expected low-report rate among prospective jurors.

Jury Trials Paused Around the Country

In Harris County, Texas, The Houston Chronicle reported Feb. 10 that in-person trials fell from 1,600 in 2019 to just 52 since the onset of the COVID-19 pandemic in early 2020. The result: jail over-crowding and rising frustration within the local legal community.

The Harris County jail in Houston is reportedly near capacity, with 9,000 inmates incarcerated there. Roughly 2,600 jail inmates contracted COVID-19 in the Harris County jail in 2020, resulting in six deaths. The county sheriff and public defenders — unlikely allies — have each called on local courts to do more to expedite criminal cases.

Statewide, according to the Texas Office of Court Administration’s Jury Trials During the COVID-19 Pandemic (PDF) report, no jury trials were held in the state from March 2020 until June 2020. For comparison, 186 jury trials were held weekly in Texas in 2019.

And in Brazos County, efforts to hold jury trials were frustrated by defendants who had contracted COVID-19 and later exposed lawyers, jurors, and courtroom personnel to the disease.

The Texas Supreme Court, which has so far issued 34 emergency orders addressing COVID-19-related issues, recently postponed all jury trials until April 1.

In New York City, The New York Times reports that just nine criminal juries have been held since the COVID-19 pandemic struck, notwithstanding considerable efforts by local court officials and money spent outfitting courtrooms with protective measures. In 2019, roughly 800 criminal trials were held in the city.

At least one local judge believes the problem will not get better anytime soon. On Feb. 9, New York federal district court judge Ann Donnelly said it was “not realistic at all” to believe that singer R. Kelly’s scheduled April 9 jury trial could be conducted on that date, due to COVID-19-related challenges.

Re-Opening Plans Confront Reality

Florida courts seem determined to get their in-person jury trials up and running again soon. Trial courts in Miami-Dade County announced Feb. 10 that they will resume jury trials in March.

Jury trials in Duval County are scheduled to resume March 22, but, according to one account, local court watchers are not so sure. The county has spent $150 million installing protective measures in its courtrooms, but jurors in Florida are wary about serving on juries. Late in 2020, Clay County sent out 400 jury summonses, yielding just 14 prospective jurors.

In Illinois, court officials in Chicago-area Cook County are also dealing with a crushing backlog of criminal cases requiring jury trials. A planned February resumption of in-person jury trials recently came and went without comment, with no word when they might be set in the future.

In North Carolina, the state supreme court’s Jan. 14 emergency order (PDF) gives local court officials the authority to resume jury trials, provided they can be held in compliance with the high court’s courtroom safety requirements. However, the prospect of in-person jury trials has been met with skepticism and concern by local attorneys. COVID-19 remains a serious health threat across much of the state, and some believe that jurors who might respond to a summons will not represent a true cross-section of the local community.

Ohio is another jurisdiction that permits in-person jury trials, depending on local conditions and the ability of local courts to provide a safe environment for jurors and court personnel to operate. But a rash of COVID-19 infections dashed Hamilton County’s plans recently, causing a suspension of in-person jury trials until at least March. Hamilton County surrounds the Cincinnati metropolitan area.

Jury trials are scheduled to resume in Michigan in March after a year’s hiatus. Two weeks ago, the Michigan Supreme Court said that trial courts need not file their annual statistical report on jury trials (PDF), in view of the fact that so few had actually be held in the state.

Finally, in Virginia, jury trials are scheduled to begin again this month — provided that local officials obtain approval for their re-opening plans (PDF) from the Virginia Supreme Court. Jury trials have been suspended, for the most part, in Virginia for the past year.

We’ll Get There When We Get There

For the time being, courts have no choice but to keep traveling the road they’ve been on for the past year. This requires planning, investing, training, recalibrating in response to new events, and prioritizing efforts against a growing volume of judicial business. At some point, the COVID-19 pandemic will relent and the “new normal” will give way to what was good and necessary of the old normal. No one knows quite when that day will come. We’ll get there when we get there.