SHERIDAN — Fourth Judicial District Court Judge John Fenn asked several attorneys Thursday whether the court should postpone jury trials due to the increasing number of COVID-19 cases in Sheridan County.
The conversations occurred in multiple pre-trial conferences that took place Wednesday primarily via video and telephone conferencing.
Fenn noted Sheridan County has seen a steady increase in the number of COVID-19 cases, citing a Harvard Global Health Institute website. The site places Sheridan County in a high-risk category, with 42 cases per 100,000 people based on a seven-day moving average. Those numbers put Sheridan County at a “tipping point” in terms of the virus and recommends stay-at-home orders.
The website and metrics map is a collaboration between Harvard Global Health Institute, Harvard’s Edmond J. Safra Center for Ethics, Rockefeller Foundation, CovidActNow, Covid-Local and others.
According to the local Incident Management Team, Sheridan has had 336 lab confirmed cases of COVID-19 since the beginning of the pandemic. Of those, 108 are currently active, 224 have recovered and four have died. In addition, there have been 117 probable cases, with 37 active. Two individuals are currently hospitalized in Sheridan County.
Fenn said the court system has taken multiple precautions to ensure the safety of those participating in hearings, including allowing many to take place virtually.
Jury trials, though, pose different challenges as they cannot take place remotely.
The courts have required potential jurors and selected jury members to wear masks while in the courtroom, but defense attorney Anna Malmberg told Fenn masks interfere, to some extent, with the ability to read facial expressions and therefore makes choosing appropriate jurors more difficult. The same concept, she said, applies to how she argues the case in front of jurors.
In addition, she said, jurors may be distracted by the masks throughout the trial and could have a bias against the defendant from the get go, because the defendant’s trial is what is requiring them to be out in public and wearing a mask for extended periods.
“Taking this population and compelling them to be present for a jury trial does not bode well for a fair jury trial for this defendant, or any defendant,” Malmberg said in one of the pretrial conferences.
The court, though, must weigh the health and safety of trial participants with a defendant’s rights, which also include the right to a speedy trial.
Voir dire — the process by which the defense and prosecution choose a jury — has also faced challenges during the pandemic. For example, the process must be split into two sessions to allow for social distancing. In recent jury trials, Fenn said, he has limited the voir dire time to 45 minutes per group to ensure the process moves forward.
While attorneys in the hearings Thursday said they do not typically need that long for each group, concerns may arise if they do.
While Fenn did not, in fact, suspend jury trials until it is deemed safe, he said he would consider the option and issue a decision next week on upcoming cases.
“It’s a concern of the courts,” Fenn said. “The court has a responsibility to the community to be appropriately — to be responsible and set an example.”
Fenn also recognized the courts should represent a community’s values, and with schools and other activities still taking place in person, he wasn’t sure the trials couldn’t as well.
The attorneys participating in the discussions in various pre-trial conferences Thursday did not attempt to convince Fenn one way or the other, but reflected on the challenges posed during the pandemic.