As the surge of COVID-19 cases fills up hospitals across Georgia, jury trials continue, with at least two exceptions, in courthouses statewide.
Some judges are requiring everyone to wear a mask. Yet others are only encouraging masking. Some judges are using large auditoriums in place of their usual courtrooms, while others continue holding court in the same place they have for years.
“It’s kind of a Wild West of practices across the state,” said Harry Heiman, professor at Georgia State University’s School of Public Health. “There’s no question in my mind we need state-level leadership that establishes a clear floor of protections. We need a policy that covers all 159 counties. At such a time when the risk goes down, allow more flexibility at the local levels to walk back the directives.”
This week, judges in two jurisdictions took it upon themselves to suspend jury trials until at least the end of this month.
On Monday, Chief Superior Court Judge Ellen McElyea in Cherokee County signed an emergency order noting that COVID-19 cases have spiked in her county and a high rate of courthouse employees had tested positive. “It is with regret, and no small amount of frustration,” she wrote, that most in-person court hearings and all jury trials, except those in progress, are suspended.
On Wednesday, Chief Superior Court Judge Howard Simms suspended jury trials in Bibb County, where new COVID-19 cases are surging, until at least September.
Simms said he was about to preside over a murder trial when a key witness came down with COVID. Then, when Simms set another case for trial, a prospective juror tested positive.
“As badly as I want to get to these cases, I don’t want to put people at risk,” Simms said. “This has been going from bad to worse. We’ll reassess where we are at the end of August and if I need to enter an emergency order, I’ll do it.”
Georgia Supreme Court Chief Justice David Nahmias said it is reasonable for courts to suspend trials under such circumstances. “Hopefully after a while they can look at their situation and restart,” he said.
It’s a balancing act, Nahmias said Wednesday. “It is a balance of trying to keep people safe and keep our court system functioning, because that is where people go to resolve their disputes in our society. We need that to be available for our citizens.”
Absent a public health emergency declared by the governor, the state’s chief justice can only declare a statewide judicial emergency for a 90-day period, he added.
“This is largely an issue that we can give guidance on, but the local jurisdictions need to base their decisions on local conditions, both local COVID conditions and local resources and facilities,” Nahmias said. He encouraged judges to consult with their local public health experts for guidance on how to protect people inside their courthouses.
Jury trials in some jurisdictions resumed in April after being suspended for almost a year. The shutdown created a mountainous backlog of cases and kept hundreds accused of crimes behind bars as they wait for their day in court. Civil disputes also remain unsettled.
“We do a disservice to victims and defendants when we don’t have trials,” said District Attorney Jonathan Adams of the Towaliga Judicial Circuit in central Georgia. “It’s not right to keep defendants in jail for a year or more without a trial. There’s a way to have trials and keep people safe. We’ve got to think creatively and outside the box.”
For example, Butts County trials are held in a Central Georgia EMC auditorium that can seat 600. But trials continue to take place inside the courtroom in Lamar County, which had one of the highest rates of new COVID-19 cases over the past two weeks.
Masks are encouraged but not required in his circuit, Adams said, noting that more people coming to court during the ongoing spike are wearing masks.
In the six weeks since July 4, the number of COVID cases has increased 15 times because the highly contagious delta variant is infecting many who are not vaccinated, said Heiman, the GSU professor, from an average of 460 cases a day over a seven-day period to an average of 6,914 cases a day.
“I understand the hesitancy to impose mandates because of the political pushbacks that accompany them,” Heiman added. “But we need to ensure that members of the jury, the judges, the lawyers and everyone at the courthouse have the highest level of safety possible. This is definitely going to get worse before things get better.”
Public health researcher Amber Schmidtke said that while it’s possible to conduct jury trials safely, “it’s a scary situation.”
“The more you can space people out, the better,” said Schmidtke, who has counseled public defenders during the pandemic. “The more you require masks, the better. I know those charged with crimes should have the right to a swift trial. This is a very hard balancing act.”
Schmidtke noted that Glynn County registered an alarming rate of 1,383 new COVID cases per 100,000 residents over the past two weeks. Using a risk assessment planning tool created by Georgia Tech, she said if there are 25 people in a Glynn County courtroom, there is a 71% risk that at least one of them is infected. If there are 50 people, the risk is 92%.
“It doesn’t mean everyone will get infected,” she said. “But with the delta variant, someone who gets sick with it can transfer it to six to seven more people. Things can escalate very, very quickly.”
The coastal Georgia county is scheduled to hold the Ahmaud Arbery murder trial on Oct. 18.
Chief Judge Brian Amero in Henry County said that once the delta variant spike hit, his court reinstated a mask mandate for all those entering a courtroom.
“We have to respond to the information as it comes to us,” Amero said. “I think the public wants us to respond.”
Credit: Alyssa Pointer/Alyssa.Pointer@ajc.com
Credit: Alyssa Pointer/Alyssa.Pointer@ajc.com
Cobb County briefly transitioned from an in-person court to a virtual format early this month after two of its Superior Court judges tested positive for COVID after attending a judicial conference in Jekyll Island.
Walton County has held eight criminal trials this year with nine more scheduled for 2021, said Melissa Malcolm, chief deputy Superior Court clerk.
The county congregates prospective jurors in two rooms — the jury assembly room and a board room — to allow for social distancing. Masks are mandatory in those rooms and in court. Once empaneled, jurors spread out across the courtroom instead of sitting in the jury box.
“We’ve made the best of it to keep juries going,” Malcolm said. “It’s been a challenge for sure.”
Chief Judge Penny Haas Freesemann of Chatham County presided over a criminal jury trial this week.
Because of all the plexiglass barriers, Freesemann likens her courtroom to a fish bowl. Chatham uses one courtroom for the trial and a second courtroom for the jury room. Everyone in court except for witnesses must wear masks, and the jury box has been modified so jurors are spread out.
“We have worked hand in hand with the health department every step of the way,” Freesemann said. “The safety of citizens coming into this courthouse is of paramount importance to the judges of this court.”
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