Not Afraid of the Virus and Reporting for (Jury) Duty

• Support for law enforcement. People who are fearful tend to be wary of the police and the criminal justice system, she said, but people who aren’t afraid tend to like law and order.
• Trust in authority. People with this attitude believe that rules should be followed and civil authority figures tend to be right.
• Lack of faith in science and experts.

All these attitudes spell bad news for criminal defendants, Redbird said. “There’s no way I can think of in which the pandemic has made criminal defense lawyers’ jobs easier.”

In fact, the pandemic is likely to cause even women and people of color to side more often with the prosecution, she added, because if they do show up to court they will likely be more afraid, and people who are scared tend to be more willing to take away a defendant’s freedom to protect the community.

“People who are fearful and angry make more punitive decisions than they otherwise would,” agreed Hans.

In addition, the public believes that the risk of infection is very high among prisoners, so many jurors may assume that a criminal defendant is infected and that releasing him or her is dangerous.

“The risk-to-the-community calculation has changed,” Redbird said, because jurors will consider not only the risk of recidivism but also the risk of disease.

“People view jail as a form of quarantine,” she said.

As trials are scheduled, these trends are becoming apparent. In Ashtabula County, Ohio, near Cleveland, it’s typical for 11% of jurors to ask for a hardship exemption, but the county is seeing an additional 27% of jurors submit hardship requests specifically related to Covid-19, according to Paula Hannaford, director of the Center for Jury Studies at the National Center for State Courts.

A survey the center conducted showed that, nationally, only 41% of men under 50 could potentially qualify as having a Covid-related hardship compared to 65% of women over 50.

And communities are aware of the risks.

“We’ve had comments from jurors like, ‘Why are you still summonsing people over 65? They shouldn’t even get a summons at all,’” said Nicole Garcia, director of jury services at the Maricopa County Superior Court, which includes Phoenix.

As jury pools skew toward conservative young white men, meanwhile, litigants may start nursing constitutional challenges based on the claim that the jurors are unrepresentative of the community.

“Courts would be well-advised to prepare for legal challenges to the jury pool on the grounds that it’s a violation of Sixth Amendment rights,” Hannaford said during a webinar for court officials, adding that knows a number of criminal defense lawyers who are already preparing such attacks.

Andrew Ferguson, a professor at American University Washington College of Law, said that “lawyers need to start making a record that the jury pool is so unrepresentative that the case shouldn’t go forward.”

Hannaford is skeptical that such claims would succeed, however, because a 1979 Supreme Court case said that there would have to be “systematic exclusion” of distinct groups from a jury pool. (That case involved a Missouri law that gave women an automatic exemption from jury service.)

It’s less clear what the effect of a skewed jury pool will be in civil cases. If an individual is suing a large corporation, a more conservative jury would theoretically be good for the defense, but Redbird said the pandemic has resulted in less trust in large institutions across the board.

In a wrongful-termination case, “it could go either way,” said April Ferguson, a national trial consultant based in Tulsa, Oklahoma. “Jurors who were laid off as a result of the pandemic might think, ‘I like the plaintiff; he’s like me.’ But they also might think, ‘Hey, I got laid off too; I don’t feel so bad for you.’”

Jurors’ experiences with Covid-19 could also color their views of medical malpractice cases, the consultant said, as well as some cases involving banks and other lenders due to the controversy over Paycheck Protection Program loans.

Redbird cited increased distrust of Asian people as another measurable effect of the pandemic.

In addition to skewed juries, holding trials with masks and social distancing is also likely to affect the results, experts warned.

People rely heavily on nonverbal communication to understand others, and “a mask inhibits this,” said Redbird.

“We don’t focus as well if we can’t see someone face-to-face,” she added.

Because mask-wearing makes it harder to assess meaning and honesty, Redbird said jurors might unconsciously think that a witness is less credible.

This is especially true for anyone who might be perceived by some people as less credible for other reasons, such as belonging to an ethnic minority.

For any witness who has a separate communication challenge, such as a person with an accent or an expert trying to make complex information understandable, there are additional challenges.

“A mask makes us far less likely to understand someone,” Redbird said.

The politics of mask wearing complicate things further.

“We associate masks with criminality,” said Redbird. “If your client doesn’t wear a mask, they will be seen as dangerous, and if your client does wear a mask, they will look more guilty. This is not an argument you can win.”

Meanwhile virus-safety rules have proven divisive. “We will read people’s personality traits into the decision to wear a mask,” Redbird said.

April Ferguson, the jury consultant, pointed to the example of conservative Oklahoma, where for some “asking people to wear a mask is like asking them to put duct tape on their face.”

Some experts recommend that lawyers ask the judge to tell the jury that the court decided whether participants should wear a mask and not to infer anything from their doing so.

But Hans is less sure that this is an issue. “Juries are sophisticated enough to understand the context” of masks, she said.

Hans also downplayed the predictiveness of nonverbal cues when it comes to lawyers who worry that they will find it harder to discern jurors’ reactions to the proceedings when jurors wear masks.

Still the coronavirus creates a learning curve for attorneys.

Being masked as a lawyer “removes some of the skills that you have as to how you convey emotion or outrage or questioning,” said Andrew Ferguson. A law professor at American University, Andrew Ferguson is not related to April Ferguson, the Tulsa consultant.

Social distancing is also an issue. Some jurors are now being seated in the courtroom gallery. Many jury deliberations are being conducted in unused courtrooms because traditional deliberation rooms are too small.

Roughly 80% of Americans approve of social distancing, Redbird said, “which is an extremely high rate of agreement for anything in the U.S.” Further, people who approve of social distancing believe that people who don’t practice it are “selfish, unreasonable, mean and hypocritical,” she found.

As a result, it’s essential for lawyers and clients to practice distancing during a jury trial. But that makes it hard for a lawyer and client to communicate confidentially in the courtroom.

One solution is a two-way headset, although again lawyers will want a judge to explain the arrangement to the jury so that it doesn’t seem suspicious.

Another problem is that many lawyers, especially criminal defense lawyers, like to touch their clients at trial to demonstrate to the jury that they have confidence in them and don’t find them scary.

Doing so allows lawyers to “connect with the humanity of the client,” said Andrew Ferguson, who predicted that the “humanness of trials” will be reduced.

Many of these problems were illustrated in one of the first jury trials scheduled during the pandemic, in Ashland County near Akron, Ohio. Judge Ronald Forsthoefel insisted on proceeding with a criminal case even though defense lawyer Adam Stone had been advised by a doctor to self-quarantine after coming into contact with someone who had tested positive for the virus.

On April 27 the Ohio Supreme Court ruled that the case could proceed as long as social distancing was observed, everyone’s temperature was checked, and jurors who were worried about Covid were automatically excused.

At trial the next day the defendant, Seth Whited, got sick and was rushed to the hospital with Covid-like symptoms. He was put on a stretcher in view of some of the jurors. Most of the jurors were wearing masks, but not all were, and the court did not have enough to supply everyone with one.

Whited eventually tested negative, and Forsthoefel agreed to postpone the case until May 12. “Some people are more concerned about this and their exposure to the virus than others,” he said.

Nina Ginsberg, president of the National Association of Criminal Defense Lawyers, told Cleveland.com that potential jurors might feel pressured by a judge like Forsthoefel to say that they weren’t concerned about their health but then rush through deliberations in order to return home as quickly as possible.

On June 23, Whited’s trial was postponed for a sixth time.

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