As the state loosens COVID-19 restrictions, Massachusetts will allow courts to move forward with in-person jury trials. GBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed about what measures are in place to keep everyone in the courtroom safe, and how those measures could impact trials. The transcript below has been edited for clarity.
Joe Mathieu: I think this is great to see progress and all that, but I'm a little concerned about the great stories that will miss, you know, the "I am not a cat" lawyer and some of these other ridiculous scenarios we've seen. A surgeon Zoomed in to a court hearing earlier this week. I was looking at this video [and] it's kind of wild to watch.
Daniel Medwed: I think we'll all miss those stories, but litigants are probably going to benefit from their absense.
Mathieu: I hope that's true. So this was one of our stories yesterday, the state beginning this new phase of in-person jury trials. There are some restrictions. What are the key features we should know about?
Medwed: So the state has pledged to gradually phase in the resumption of jury trials at select locations, basically one at a time over a two-month period with an eye toward ramping things up maybe later in the spring. The key features, I think, [are] that instead of your normal 12-person jury, you're going to get a six-person jury, and that criminal cases will be prioritized during this rollout, especially cases where the defendant remains in custody, is in pretrial detention. Those are typically cases where the person was denied parole; it was a very serious case.
Mathieu: So tell me about shifting from 12 to six [jurors]. That'll really change the dynamic, obviously, in the jury box during deliberations. Are there protections to ensure litigants are not hurt by this change? Would they be heard?
Medwed: Yeah, I think the gist of your question is really spot on. I think this shift is going to alter the dynamic considerably and probably will accrue to the detriment of defendants. It's a lot easier to convince six people, if you're a prosecutor, that there's proof of guilt beyond a reasonable doubt than it is to convince 12. But the courts have really anticipated this problem and they've built in a couple safeguards. So for one thing, if you're a criminal defendant and you ordinarily would have a right to 12 jurors and now you're having six foisted upon you, you have to consent to that change. You have to get affirmative consent. Now, if you're sitting in the Nashua Street jail in lockup, maybe that's not really a choice — you want to go to trial, you want to get out. But at least, in theory, it's there. For civil cases, there's no consent requirement. You're just going to get six jurors. Second, ordinarily with small juries — a six-person jury — you only get two peremptory challenges, the right to strike jurors for no articulable reason, just because you don't want them on your jury. In this case, the Commonwealth is going to give you four. So you're going to have a few more opportunities, a little more flexibility to shape the jury as you see fit.
Mathieu: The bigger picture here, Daniel, the composition of those juries — we heard yesterday some concerns about them becoming less diverse. In fact, I guess a couple of cases had all white juries. Where do we go with that?
Medwed: Well, that's a problem always. The Constitution guarantees you a right to a fair and impartial jury that's fully representative of your community. It's a jury of your peers. That's a difficult thing to achieve during normal times, let alone during a pandemic that has disproportionately impacted communities of color in Massachusetts and elsewhere. Jury pools often skew white and to the older side of the spectrum — retirees and others who have a little more time on their hands. I think that's going to be exacerbated because people who've been vaccinated, people who are on the older end of the spectrum, might be more willing to participate in the jury process. I think it's an inevitable problem and a real issue here that could give rise to some claims on appeal.
Mathieu: Well, so with those concerns, is this a good idea to resume trials at all?
Medwed: I'm not a public health expert, as you know, so I can't really comment on the safety issue. But as a legal matter, I am increasingly concerned about these delays. You have a constitutional and legal right to a speedy trial in Massachusetts. It's a 12-month clock from arraignment to trial. The pandemic has put all of that on hold. The legal term is "toll" — the statute of limitations, the speedy trial clock. I think it's time for folks, especially in serious cases, to have a shot if we can do it safely, if we can do it gradually, and if there's informed consent. I realize those are all big "ifs."
