By Cara Salvatore

Law360 (June 3, 2020, 10:38 PM EDT) -- A trio of Texas judges said Wednesday they're worried about how jury trials will recover from the coronavirus pandemic, citing concerns from the effect on the overall jury pool to how face masks will impact a fundamental task of courts and trial attorneys — assessing juror and witness credibility.

During a webinar hosted by the Houston Bar Association, three Harris County judges — Kristen Hawkins of the 11th District Court, Rabeea Collier of the 113th District Court, and Robert Schaffer of the 152nd District Court — said they anticipate troubling knock-on effects as courts begin looking to resume full-blown jury trials following a lengthy pause due to the pandemic.

The judges are worried that certain segments of jurors will feel unsafe or will be unable to come to court, erasing slices of the jury pool and bringing into question whether juries will be true reflections of parties' "peers."

"We're very concerned about that," Judge Hawkins said. "This pandemic has hit different populations very differently and dramatically."

"We want to make sure that our jury panels are representative of our community, because that's how we believe that people get a jury of their peers and get a fair trial," she said.

COVID-19 appears to disproportionately harm ethnic minorities, among others, according to data from the Centers for Disease Control and Prevention. And workers stuck at home with children may not have the option of stepping away for jury duty.

"I know the governor has loosened up the restrictions on child care, day care, but those are still concerns," and those questions should be asked during voir dire, Judge Collier said.

The judges also said they foresee that now-ubiquitous face masks will hamper a key trial function: gauging the credibility of courtroom participants.

"We've been talking about face masks and face coverings, and the ability for lawyers to gauge the facial expressions of the panel," Judge Collier said. A solution could be using transparent face shields instead, so the "nonverbal communication that we so heavily rely on" can come through during trial, the judge said.

Judge Schaffer agreed, saying, "You've got to be able to see what the facial expressions are of the folks that are testifying, the folks that are being interviewed during the voir dire process."

Many courtrooms are also building plexiglass walls to section the courtroom into smaller zones of shared breathing space, the judges said.

In Judge Hawkins' building, "the court reporter is going to be behind plexiglass, the witness is going to be behind plexiglass, the clerks, the bailiffs are going to be behind plexiglass," she said.

Voir dire will also cause problems simply in terms of a huge group of people having to be in one place at one time. Courts can't accommodate the social distancing required there, and the judges spoke of the need to find new places to bring large groups for voir dire.

Judge Hawkins said her court is looking at Houston's NRG Arena as a possible site.

Among the major challenges is deciding when to start holding trials again. The judges on the county's COVID-19 task force, which is led by Judges Collier and Hawkins, surveyed 3,100 Harris County lawyers and found that 75% of them are in favor of face coverings for lawyers. Most also said they are not comfortable having trials resume until the fall.

Judge Hawkins said the wheels are expected to slowly begin turning again in July, when there are plans for a grand jury to be impaneled. A test trial or two could also take place that month, she said. Criminal trials could tentatively start again in August, but proceedings will likely not get into full swing until September at the earliest, she said — although there is talk of holding off on civil trials for a few months after that, in acknowledgment that criminal trials are a more pressing need.

In the meantime, the judges are thinking hard about the higher vocational commitments of their chosen profession, and the importance of resuming and resuming safely is weighing on them, Judge Collier said.

"There are so many people in our communities that are hurt economically, spiritually, physically," she said. "This is really an opportunity for each of us to rise to the occasion. We will do everything in our power to continue the justice system."

--Editing by Aaron Pelc.

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