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Federal trials in state delayed by pandemic

by Linda Satter | November 8, 2020 at 5:07 a.m.

Concerns about a recent surge in positive coronavirus cases in Arkansas led the chief judge for the Eastern District of Arkansas to announce Friday that all federal civil and criminal jury trials scheduled through Jan. 15 will be postponed.

But U.S.District Judge D. Price Marshall Jr.'s administrative order also states that all three of the district's courthouses -- in downtown Little Rock, Jonesboro and Helena-West Helena -- remain open for business, with "hearings of all sorts" being held by videoconference or teleconference when possible, and in person when necessary.

Marshall also said that despite the moratorium on jury trials for a little more than two months, any criminal trial may proceed at the discretion of the presiding judge or if a party, citing good cause, requests it.

The driving force behind the judge's eighth administrative order since March, when the coronavirus pandemic started being felt in Arkansas, is an increase in requests from potential jurors to be excused from jury duty for virus-related reasons.

Marshall said almost 100 people made such a request in October and November. He also noted that four jury trials have been postponed in recent weeks because a participant had either tested positive or been exposed to the virus.

In addition, he said, "We are entering flu season. The holidays are in sight, too. There will be gatherings and travel, which will create opportunities for further spread. And the trend lines for positive cases, hospitalizations, and deaths are particularly troubling, especially in central Arkansas and northeast Arkansas, where two of our three courthouses are located."

"Citizens' increasing inability and reluctance to serve on juries is understandable, but it creates the possibility that our juries will not reflect a fair cross section of the Eastern District," Marshall said. "The Court therefore concludes that the ends of justice outweigh the public's interest, and the affected defendants' interests, in speedy criminal trials."

Trials had earlier been postponed because of the pandemic but were allowed to resume in June.

In the district's busiest division, in Little Rock, U.S. District Clerk Jim McCormack said last week that safety precautions seem to have helped keep known instances of the virus low.

He said that since March 1, there have been about eight people test positive for the virus among the roughly 200 people who work in the building regularly, including court security officers, U.S. marshals, probation officers, judges and their staffs, and employees of the clerk's office. A magistrate judge tested positive several days ago and is recovering at home, while his staff -- the only people he was within 6 feet of for more than 15 minutes at a time -- then began teleworking as a precaution, McCormack said.

He said privacy regulations prohibit him from identifying anyone who has contracted the virus, but he noted that everyone except in the most recent case, for which quarantining measures are still in effect, has returned to work.

The courthouse has strict protocols in place in the event someone tests positive for the virus, McCormack said.

He said the area where the person has been, such as a courtroom, is sealed until a cleaning crew is sent in by the U.S. General Services Administration, and notices are immediately sent out to all tenants of the building. He said "extensive contract tracing" is done by whichever agency is involved, such as the marshals service if a prisoner tests positive.

"We ask everybody to retrace their steps. ... We provide GSA with a floor plan with that person's circulation through the courthouse, so they can clean every space they've been in," McCormack said.

But every day, regardless of whether a positive test has been reported, McCormack said doorknobs, elevator buttons, or "anywhere there is a public presence," is cleaned four to six times a day.

The courthouse also requires that masks be worn in public spaces, and makes the masks and hand sanitizer available to all who enter the building. Sanitizing stations are set up throughout the building, and social distancing is enhanced by the removal of benches and adjacent jury seats in courtrooms. The courtrooms are large enough that jury seats can be spaced at least 6 feet apart, and other furniture is rearranged to accommodate seating for attorneys.

"We're blessed with a lot of space," McCormack noted.

Bench conferences are now held in the interior hallway outside courtrooms rather than the usual practice of attorneys huddling together in the front of the judge's bench, whispering to keep jurors or spectators from hearing them. Spectators are sometimes ushered into simulcast rooms to enforce social distancing requirements, and for months juries have been deliberating in the building's spacious courtrooms rather than cramped jury quarters.

The building was designed years ago with separate hallways for judges and staffs that is off-limits to the public, so that also helps reduce contact among people in the building.

McCormack said the courts have conducted more than 570 video hearings in criminal cases in the past few months. Often, defendants who are in custody participate via video from jail, but sometimes a judge participates from another courtroom or even from the judge's home when a defendant appears in a courtroom.

For prisoners who go directly before a judge, only a few are allowed at one time in a courtroom, and are spaced apart from one another. Friends and family members who want to watch are moved to a different courtroom, if necessary, to observe and hear the proceedings in real time on 54-inch monitors.

Marshall's order also limits grand jury proceedings, noting that only one grand jury will meet in December and that unless something changes, there will be no grand jury meeting in January. Sometimes two grand juries meet in the same month.

The last administrative order related to the pandemic was issued Sept. 24, and noted that nine civil and criminal jury trials, as well as several non-jury trials, had been held since trials resumed mid-June.


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