For two days this week, a dozen North Texas jurors listened to oral arguments, heard witness testimony and reviewed physical evidence.
They were the first official federal jury in Texas empaneled since courts were shut down in March due to COVID-19. The panel deliberated for two-and-a-half hours and then found the criminal defendant – whose lawyers adamantly objected to the trial taking place – not guilty.
As U.S. District Chief Judge Barbara Lynn thanked jurors for their service, the jury foreman raised his hand.
“I’ve been asked by the other jurors to thank you, judge,” the juror said. “We felt very comfortable and safe.”
Federal court officials in Texas and across the U.S. monitored U.S. v. Timothy Tanner, an otherwise un-newsworthy case in which the defendant is charged with being a felon in possession of a firearm.
This is only the third federal jury in the entire U.S. during the past three months and judges are searching for innovative ways to restart jury trials while keeping the jurors, lawyers, witnesses, court personnel and the public safe from contracting the coronavirus.
“We needed to see if it could be done and how it could be done,” Judge Lynn told The Texas Lawbook in an exclusive interview. “We needed people to know that we are serious about health and safety.”
“I used three courtrooms – one courtroom for the trial, one as the jury’s deliberation room and one for the public [to watch the trial on a video screen],” she said. “We couldn’t possibly do multiple jury trials like this if we have to use three courtrooms for each trial.”
Judge Lynn said the Tanner case was scheduled to go to trial when the courts shutdown. She said the fact that it was a single defendant and single charge case meant it would be less complicated.
The trial took place over the objection of Tanner and his lawyers, who argued that having an in-person jury trial presented a “grave and imminent threat to public health.” Federal public defender Michael Kawi, who represented Tanner, asked the U.S. Court of Appeals for the Fifth Circuit last week to stop the proceedings for public health reasons. The appeals court rejected the mandamus petition.
The only other federal jury trials conducted in the U.S. since the end of March were late last month by a federal judge in Raleigh, North Carolina, and those trials were short, according to the U.S. Administrative Office of the U.S. Courts.
Chief Judge Rodney Gilstrap of the Eastern District of Texas was scheduled to start a patent trial this week with a jury, but the dispute settled last week. Federal Judge Amos Mazzant III of the Eastern District also has a trial scheduled for this month. In the Northern District of Texas, three other federal judges have jury trials set to start later this month.
Judges in the Texas state courts told The Texas Lawbook that they doubt there will be any jury trials until mid-to-late August at the soonest.
“Courts that want to start back with jury trials need to give it a lot of thought, due diligence and planning,” Paula Hannaford-Agor, who is director of the Center for Jury Studies and the National Center for State Courts. “Courts realize that they have to be very careful and take every precaution. The negative PR and public blowback if a juror contracts COVID-19 during the trial will be tremendous.”
But Hannaford-Agor said Judge Lynn clearly gave the Tanner case a considerable amount of planning and took the necessary steps to make the in-person trial as safe and risk-free as possible for the jurors.
Judge Lynn said that 17 federal court personnel, including chief clerk Karen Mitchell and chief deputy of operations Leigh Lyon, spent endless hours thinking of every scenario and making preparations.
“The clerk’s office and the courthouse staff get all the credit,” Judge Lynn said. “They worked hard and did an amazing job.”
Questionnaires were sent to about 100 potential jurors asking them the usual inquiries about whether they knew anyone involved in the case. But Judge Lynn also asked several COVID-19-related questions, including whether the prospective juror worked in the healthcare industry, whether they had traveled during the past month and whether they had any medical conditions that put them at a higher risk of contracting the coronavirus.
“I offered to do jury selection remotely,” she said. “I was willing to try it but I know there would be challenges. We would need to make sure that everyone had internet access and a device or that we would need to get an iPad and a hotspot to those who don’t have them.”
“But I wanted all the lawyers to agree to do it or it would be too risky,” Judge Lynn said.
The defense attorney objected and the discussion of remote voir dire went no further.
About 40 prequalified potential jurors reported Monday to the federal courthouse in downtown Dallas, where the judge and lawyers questioned 14 of them at a time in the first-floor jury assembly room. Late Monday, a panel of 12 jurors and two alternates were selected.
For the trial, jurors sat in the gallery, where they were separated over five rows by more than six feet from each other and separated from the lawyers, defendant and witnesses by Plexiglas windows. Ten of the jurors chose to wear plastic face shields, while two wore regular face masks. All wore gloves.
Witnesses were seated in the jury box, which also had a Plexiglas shield between them and others. The witnesses wore face masks when they entered the courtroom but took them off when they started testifying. A paper covering was placed over the witness’ microphone, which was cleaned after each person’s testimony.
“The goal was to maximize the view of the jurors and to protect them from the spray of the people talking,” Judge Lynn said.
The jurors deliberated in a third federal courtroom on the same floor, which allowed them to maintain social distancing. The trial exhibits were on a thumb drive for jurors to review in the jury room.
The trial proceeded like most trials do with one exception: the defense attorney objected to a statement of a witness and asked the judge for a mistrial. Because of the social distancing, Judge Lynn had the lawyer email to her the objection. He did and she denied it.