'There may not ever be an ideal time to do this': Iowa courts to restart trials Monday
District Judge Michael Huppert's courtroom at the Polk County Courthouse will have a different look and feel when trials resume this month.
To limit the potential spread of the coronavirus and to ensure social distancing, officials used yellow and black crime tape to block off seats in the gallery of the courtroom. Off-limits chairs in the jury box were marked with red Xs.
When visitors enter the courthouse, face coverings will be required. Everyone will have their temperature taken as they enter, and visitors will be asked a series of questions to screen for COVID-19, the respiratory disease caused by the coronavirus.
Huppert will wear a transparent face shield while on the bench. Jurors and witnesses will also wear face shields while speaking so people can pick up on their verbal and non-verbal cues, he said.
Huppert knows some people may be nervous about restarting trials, but he said the courts are trying to reopen as safely as possible.
“There may not ever be an ideal time to do this,” Huppert said. “But work was put into it to allow these trials to start taking place because the people most affected by criminal trials have a right to that trial.”
Two pilot trials in Scott and Muscatine counties are already in the books. Other criminal trials will restart Monday, Sept. 14, a date the Iowa Supreme Court targeted in May.
Private defense lawyer Alfredo Parrish is among those who think it may still be too early for trials to resume.
“I think the Supreme Court was going by the data and hoping a vaccine would be available,” said Parrish, who favors waiting another 30 to 45 days to restart trials.
In late August, Iowa had the highest weekly per capita rate of new COVID-19 cases in the nation, according to data from the U.S. Centers for Disease Control and Prevention. On Tuesday, the New York Times listed Iowa among states where new cases are higher and staying high. Iowa averaged more than 15 new daily cases per 100,000 people over the preceding week.
The state Supreme Court postponed most criminal and civil trials in March when the first cases of COVID-19 were confirmed. That has left many defendants sitting in jail longer than they normally would have, Huppert said. Others have been released as they await trial in an effort to cut down on jail populations during the pandemic.
Jailers in more than a half-dozen counties have said they think lowering inmate populations has helped slow the spread of COVID-19 in their facilities. Still, jails can be an incubator for coronavirus. A COVID-19 outbreak at the Polk County Jail peaked June 1 at 127 inmates.
Requirements for social distancing in the courtroom will allow fewer people to view trials in person. The jury box usually sits 12 jurors and one alternate. In Huppert's courtroom, the gallery normally seats 60 people. Going forward, four jurors will sit in the box; the rest will be spread out in the gallery. Judges, court reporters, attorneys, defendants and other essential personnel will also be allowed in, Huppert said.
"That's pretty consistent courtroom to courtroom, county to county," Huppert said. "Real significant reduction."
Spectators will likely be allowed to observe proceedings in other rooms using videoconferencing, Huppert said. Polk County is considering streaming court hearings live on YouTube, but officials are still working on those details, he said.
Jennifer Larson, an attorney in the Polk County Public Defender’s office, said the court faces a quandary because there is no end in sight to the pandemic.
The delay is taking a toll on some defendants' mental health because they've not received a speedy trial and cannot move on with their lives.
"My clients are getting frustrated," Larson said. "Really, they have no certainty of when they will be brought to trial. It’s just a much longer period of time than the constitution and Iowa rules allow."
Two pilot trials pave the way in Iowa
State courts across the country are taking different approaches to how or whether trials are being conducted.
State courts in Tennessee resumed trials in May without spectators. New York, Pennsylvania and Louisiana are among the states trying to resume business, but facing legal challenges from concerned groups, according to Bloomberg.
In late July, the Iowa Supreme Court laid out the requirements for courts to resume in-person trials. Each district court has some leeway to implement policies differently based on layouts of courtrooms, needs and resources, but most are being reconfigured to follow distancing recommendations.
Additional monitors are being added in some courtrooms to present evidence, instead of having it passed around from person to person, and some courts are considering fewer scheduled breaks to speed things up.
On Aug. 17, the first two in-person jury trials since March started in Scott and Muscatine counties. Jury selection was held at the RiverCenter convention center in downtown Davenport and at Muscatine Central Middle School auditorium, respectively.
Face coverings were required at all times in both cases. The Supreme Court required courts to give anyone speaking a transparent face shield, which enabled a full view of a person’s mouth.
Both cases moved to traditional courtrooms after jury selection.
Scott County jurors remained in the courtroom during breaks and deliberations. Chairs in the Muscatine County courtroom were rearranged into a large circle for jury deliberations, according to Muscatine County Judge Thomas Reidel.
“The jurors had an incredibly positive attitude throughout the process,” Reidel said.
The Supreme Court allowed district courts to defer jury service for a year for people who were uncomfortable about being in large groups for extended periods of time.
Two potential Muscatine County jurors expressed concerns about the size of the group and the precautions in place, Reidel said. Their jury service was deferred until spring 2021.
Parrish and Larson worry it will be hard to find fair jury pools for trials involving people of color.
Black and Hispanic Americans are more than 2.5 times more likely to get COVID-19 and more than 4.5 times more likely to be hospitalized than white Americans, according to the CDC.
The greatest risk for severe illness from COVID-19 is for people 85 years and older, according to the CDC. In general, people ages 60 or older are at higher risk than people age 50, the CDC said.
“You’re not going to get older people. You’re not going to get African Americans, because they’re scared,” Parrish said. “So you’re going to get younger and white juries.”
Even before the emergence of COVID-19, it could be hard to find juries that adequately reflected communities, according to Larson, who served on a Polk County task force that addressed ways to reopen the courts. That task force made recommendations to a state task force, whose recommendations in turn made up the backbone of the Supreme Court’s order.
Different counties, different safety measures
In Muscatine County, each person who leaves the jail and has contact with other people must quarantine for seven days upon return. That includes inmates going to court, said Sheriff C.J. Ryan.Three inmates tested positive at the jail since March, but in each case the infection was detected during the quarantine period.
Ryan considered the cases close calls in a jail where some sections have 32 people in a dorm unit.
"They call it a pandemic for a reason," Ryan said. "We try to exercise caution."
Huppert, the Polk County judge, did not think defendants would be quarantined at Polk County Jail after going to court. Once trials start, people involved will not be tested regularly, he said.
“I am not aware of any facility in Iowa that is going to be doing testing as a matter of course,” Huppert said. “That would be up to individuals as they saw fit.”
If a person tests positive during a trial, that person will be excused. A juror could be excused and replaced with an alternate juror, or the case could be declared a mistrial, Huppert said.
“It’s a more extreme version of what you encounter in any trial where you have a juror who falls ill and can no longer participate,” he said.
Other measures are being taken to keep people safe at the Polk County Courthouse. Elevators are taped off and have a capacity of two people. As in Scott County, jurors will stay in the courtroom for lunch breaks, Huppert said.
This summer, when Huppert sentenced a person in his courtroom, the judge had a webcam in his laptop facing him and another camera on the back showing the rest of the courtroom. Most pretrial hearings will still be conducted remotely, Huppert said.
Polk County already had a high-profile example of what trials will look like in the pandemic. On Friday, attorneys for Des Moines Public Schools argued for a temporary injunction to allow the district to legally start the year fully online, and attorneys for the state argued against it.
DMPS Attorney Miriam Van Heukelem wore a mask. State Attorney Jeffrey Thompson, Judge Jeffrey Farrell and witnesses wore face shields. The hearing was streamed on GoToMeeting. A camera on Farrell's computer showed his face and a barely visible view of the courtroom.
Viewers complained about poor audio. One witness testified by videoconference, but at first, his camera would not turn on.
"We're still learning this technology in the courtroom," Farrell joked.
Larson, the public defender, will start a trial Monday. Larson is 48 and does not have any underlying health conditions. She's gotten used to wearing masks and keeping her distance and has "an average amount of anxiety or concern" about COVID-19.
"It is going to feel strange to be back in the courtroom," Larson said.
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What about federal courts?
The U.S. District Court for the Northern District of Iowa resumed jury trials June 1, said Clerk Robert Phelps. One federal trial already happened in Sioux City, and jurors seemed receptive to social-distancing measures and a mask requirement, Phelps said.
The U.S. District Court for the Southern District of Iowa, which has courts in Des Moines, Council Bluffs and Davenport, let a prohibition on trials in Council Bluffs and Davenport expire at the end of August.
Trials at the federal courthouse in Des Moines will be prohibited until at least Oct. 12. U.S. District Judge John Jarvey noted in a ruling Thursday that, at the time, Iowa had "the highest ratio of positive COVID-19 tests to total tests taken of any state in the nation."