The omicron COVID-19 wave has flooded each and every corner of our interactive society. Quite simply, wherever there are people in a setting void of freely moving fresh air, this winter’s wave of sickness is being spread.
So far, the current reality of pre-existing immunity, vaccinations and effective treatments for COVID have been enough for us all to limit omicron’s toll. It is resulting in proportionately fewer hospitalizations and deaths than previous variants. That’s encouraging. Nonetheless, it is spreading quickly, and many are testing positive.
However it fares, we need essential public services to continue to conduct their daily duties through this spike. That certainly holds true for our justice system — now more than ever amid an epic crime wave.
It was troubling to learn last week that several state judicial districts have paused jury trials at least through the end of January. The chief judge of the Denver District Court halted juror summonses until Jan. 28, due in part to staff absences related to COVID.
By the same token, it is reassuring that, so far, Colorado’s federal courts haven’t yet followed suit. They remain open for business conducting jury trials. At least, so far.
As reported by our news affiliate Colorado Politics, federal judges are mulling what to do to head off the potential for COVID-infected jurors, witnesses, attorneys or court personnel causing a mistrial. In a recent conference call with the parties in one civil case, U.S. District Court Senior Judge R. Brooke Jackson said he and other federal judges planned to meet in two weeks to assess what to do about trials.
As noted in the Colorado Politics report, Jackson’s exchange during the call with attorneys in the litigation was enlightening. They fleshed out the various practical concerns that COVID presents in the courtroom. The judge fielded questions from the lawyers about what would happen if a witness or an attorney tested positive for COVID-19 in the middle of trial.
"If it were a witness who had not yet testified but could be presented remotely, that could be done," the judge replied. "But if it's somebody in the courtroom who gets sick or tests positive, we would have to follow the CDC (Centers for Disease Control and Prevention) and our court's procedures if there is close contact — within 6 feet for at least 15 minutes — then you have to quarantine."
Jackson said if one juror tested positive, that "wouldn't be fatal. But the problem is if the juror tested positive and has been with all the other jurors, I think that could be a problem."
In pre-COVID times, a summons was a summons. But since the start of COVID, that notion has been complicated by the fact jurors are compelled to sit in close quarters for long periods — something many people may not want to do at the moment.
And yet, particularly in criminal justice, the accused have a right to a speedy trial while the public also has the right to see wrongdoers sent to prison if found guilty.
Rather than pause proceedings, could courts continue to fulfill their mission with backup plans, like expanding the number of alternate jurors in case too many test positive? Are there other steps the courts could take to keep juries on the job — and justice on track?