After a pandemic pause, jury trials are back. The assurance of a “jury of peers,” however, may be missing.

Plus: A guide for what to expect from a jury summons now

After state Supreme Court Chief Justice Paul Newby let a statewide pause to most in-person court proceedings expire, some jurisdictions are pressing ahead with jury trials.

With COVID-19 still sickening thousands of North Carolinians each day, however, state courts are bracing for public health challenges while trying to resolve court backlogs.

Some North Carolinians who received a jury summons told Policy Watch that they felt conflicted: As much as they wished to fulfill their civic duty, they had to ask for deferral because of health risk concerns for them and their families.

All but one of North Carolina’s 100 counties are in the ‘red’ or ‘orange’ tier, showing ‘critical’ and ‘substantial’ community spread of the virus, according to the NCDHSS County Alert System.

Since everyone’s ability to serve varies during the pandemic, it could lead to an imbalance of race and socioeconomic status on juries. As CDC data show, Black and Latinx people are at higher risk for severe COVID-19 symptoms, hospitalizations and deaths and might, therefore, be less willing or able to serve on a jury. That raises questions about the racial makeup of juries, and if those panels truly reflect their communities.

For example, a Duke University study of 700 non-capital felony cases in Florida found that all-white juries convict Black defendants 16% more often than whites.

Durham County Chief Public Defender Dawn Baxton is concerned about defendants’ constitutional right to due process. “Because of COVID, the members of the jury that present and are impaneled to serve will not be an equitable representation of the community in which the accused lives,” Baxton said in an email.

Questions concerning jury selection biases can also potentially lead to more appeals, and in turn slow the process of resolving the cases.

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You’ve been called for jury duty. Now what?

Several trial court administrators told Policy Watch that they send jury summons at least a month in advance. Each county has its own jury trial resumption plan developed in consultation with public health experts under former state Supreme Court Chief Justice Cheri Beasley’s emergency directives.

Compared to pre-pandemic times, there are generally fewer jury trials per week. For example, Wake County is scheduling only one weekly jury trial. Courts are using other public areas in courtrooms instead of jury boxes to seat jurors.

Prospective jurors can also be excused from jury duty or request a deferral to serve at another time. Durham County, for instance, doesn’t require jurors to give a reason to request a deferral. In some counties, one can call the county clerk and ask to be deferred or excused from jury duty.

Face covering is also required for anyone in common areas of courtrooms, pursuant to Chief Justice Paul Newby’s recent order. State statutes impose a fine of up to $50 for failure to appear, but court officials have the discretion over enforcement. For more information, refer to each county’s jury resumption plan

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Jurisdictions have since modified how they summon jurors. Joshua Willey, the Senior Resident Superior Court Judge for Judicial District 4 (Duplin, Jones, Onslow and Sampson Counties) said Craven County now summons jury pools of 75 instead of 150. This allows for social distancing during jury orientation and selection, Willey said in an email. There are two ongoing criminal trials in his district.

Generally, local courts have reported a lower turnout of potential jurors summoned during the pandemic. “Out of a panel of 75 we have been seeing 20-25 jurors appear,” Willey said. “This is a slightly smaller turnout than we experienced before COVID.”

Craven County’s jury trial resumption plan states that prior to the pandemic, between 55 and 70 people typically appear for every 150 summons sent.

James Drennan is a professor at the UNC School of Government who served as the director Administrative Office of the Courts from 1993-1995. “The important function [of jury trials] pushes the system to try to do it as quickly as possible and as reasonably as possible,” he said. “But yet they’ve got to continue to be aware of and sensitive to the public health issues that are associated with any gatherings.”

Durham County Superior Court impaneled a jury of 12 and two alternates last Wednesday for an animal cruelty case starting last week. Sixty-two out of 200 summoned reported to the court, according to the clerk’s office.

“The resumption of jury trials is kind of like the first robin of spring,” said Durham County Clerk Archie Smith, describing the first jury trial in the county since the pandemic. He said restarting the trials would signal to jurors that they should be confident they can attend court proceedings safely. “It would mean that better things are coming,” Smith said.

The inability for juries to hear cases can change the dynamics of negotiation in criminal and civil cases, especially regarding plea bargains, Drennan said.

In general, the longer trials take, the more difficult it is for witnesses to show up and the more likely it is that their memory of the event might fade.

Resuming jury trials was categorized as a ‘high-risk activity’ — and a high priority for courts by the COVID-19 Task Force assembled by former state Supreme Court Chief Justice Cheri Beasley.

Because they can typically be disposed of more quickly, the Task Force recommended that civil cases, lower-level felonies, and misdemeanor appeals that are expected to take less than one week should be heard by a jury first. The senior resident judge of each judicial district makes the final decision.

Durham County District Attorney Satana Deberry said defendants have a right to trial. Her office is prioritizing cases where prosecutors have thoroughly reviewed the evidence, satisfied discovery obligations, and exhausted plea negotiations, she said.

Jury trials cannot be easily moved online because lawyers and need to ensure that jurors heard the same information, and to observe their facial expressions, Drennan said.

Baxton said that some safety measures also impair the ability for communication between defense and their counsel.

“Until the pandemic is under control, it will be very difficult for clients to receive a fair trial,” Baxton said.