Earlier this month, more than 120 potential jurors showed up at the Multnomah County Courthouse in downtown Portland. Spaced six feet apart, court staff offered face masks.
They were summoned for the county’s first trial in more than a month amid the coronavirus pandemic. That resumption of trials has made Oregon stand out nationally, and raised questions from some in the legal and health communities about the public’s safety, even as parts of the state consider easing restrictions on gatherings and businesses.
Inside a courtroom, Circuit Court Judge Thomas Ryan greeted a small group of the potential jurors.
“I want to assure you — as I know you were told this morning — most of you have masks,” he said. “If your mask rips or tears, or you don’t have one and decide you want one, just let either or our court clerks know and we have masks for you.”
Rather than sitting together in a jury box, the jurors were spread out around the courtroom, occupying the space usually reserved for the public.
“I have my mask up here; I wear it sometimes,” Ryan said. “But the distances have been measured. And the distance between me and the clerks is more than six feet. And from me to the witness is more than six feet and amongst all of you is more than six feet.”
Across the state, courts have been reduced to only their essential functions, under an order by Oregon’s Supreme Court Chief Justice Martha Walters.
In March, there were 81 jury trials in Oregon, according to the Oregon Judicial Department. In April, just one in the entire state. The number of trials is once again starting to grow.
“It is very unusual,” said Paula Hannaford-Agor, the director of the Center for Jury Studies at the National Center for State Courts, a nonprofit organization that supports state court systems. “To the best of my knowledge, Oregon has been the only state that I’m aware of that has been doing trials.”
Across the country some of the orders limiting or halting court functions are set to expire, Hannaford-Agor said, while others states have closures or limited court functions that extend until June and even July. Though Multnomah County has reopened trials, neighboring Clark County, Washington, has decided to delay all trials until at least July 6.
“Jury service is the very definition of community spread,” Hannaford-Agor said. “There’s probably no better way to spread the infection than putting anywhere from 50 to 300 people in a room together sitting side-by-side for hours at a time.”
In Oregon, many trials have been rescheduled. But for some criminal defendants who are in custody that’s not possible. Oregon law has less flexibility than other states when it comes to speedy trials and no emergency provision to delay them. In custody defendants get the right to a trail within 60 days of their arrest.
State law allows judges to set over a trial date twice, something that’s happened over concerns about COVID-19. But at 180 days, the law requires either the trial to start or the defendant is released.
If a defendant has not given up their right to a speedy trial, then the trial must go forward, especially in cases where the charges are serious and judges would be unwilling to release an in-custody defendant.
“People’s rights during a pandemic continue,” said Cheryl Albrecht, chief criminal judge for Multnomah County. “So we’re able to modify our processes in order to be able to select a jury while maintaining the physical distancing requirements.”
The justice system affords criminal defendants more structural protections than any other group of people, said Justin Bernstein, a professor at UCLA Law School, where he directs a trial law program.
“It is weird to be doing an in-person anything right now,” he said.
Though, Bernstein added, it’s critical for jurors to assess the credibility of witnesses in person.
“To the extent we’re going to be doing any part of the justice system in person, it makes sense that it would be criminal jury trials,” he said.
As of now, Oregon lawmakers have said they have no plans to change the state’s speedy trial laws — meaning there will almost certainly be more trials in the weeks to come and thousands of more jurors called to courthouses to report for jury duty.
“I think it’s risky — you’re increasing the risk of transmission,” said Carlos Crespo, a professor at the OHSU PSU School of Public Health.
Crespo said the state has a responsibility to keep jurors safe and to track them if they develop COVID-19 symptoms after serving on a jury. He said that responsibility extents to court staff as well.
“We are unable to guarantee that people won’t be exposed to the virus,” he said. “The ultimate goal is to reduce or eliminate the spread of transmission of the virus. I don’t know if jury duty has had an impact on transmission.”
Carl Macpherson, executive director of Metropolitan Public Defender, a nonprofit that represents clients in the Portland area, argues trials shouldn’t be happening at all.
Not only is there the risk to jurors and court staff, he said, but the use of masks and the social distancing in the courtroom could raise questions around the fairness of those trials, such as if the jury represents the community and whether the trial is so radically different that it somehow prejudices the defendant.
“I don’t see this going away anytime soon,” Macpherson said. “I feel as though we’re going to be in this state for quite some time.”