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Can a fair trial be held over video? Coronavirus upends legal conventions

By Annie Knox, KSL | Posted - Jul. 10, 2020 at 9:10 p.m.



SALT LAKE CITY — Utah courts remain open for certain hearings, with bailiffs in masks, hand sanitizer on the bench and prison sentences now issued over a video feed.

But one key aspect of the system has come to a grinding halt. Jury trials have been postponed indefinitely to curb the spread of the coronavirus in the Beehive State.

As Utah judges consider how to safely gather a panel of jurors, the possibility of verdicts reached over videoconference isn’t off the table. Yet some prosecutors and defense attorneys agree a fair trial is one held in person.

“Count me out,” longtime prosecutor Craig Barlow remembers thinking when a judge in eastern Utah recently asked him and a defense lawyer about the prospect of virtual trials.

“This is one of those old arts that you may not be able to convert to an electronic platform,” Barlow said. “You have to be able to assess people in three dimensions.”

Utah is among 44 states to restrict jury trials amid the virus and one of just nine, plus the District of Columbia, to call them off until further notice, according to the National Center for State Courts.

Some states are moving forward with caution. In Texas in May, jurors logged in by smartphone for a one-day civil proceeding in Collins County District Court — a summary trial that tasked them with hearing a shortened version of an insurance dispute and arriving at a nonbinding verdict. In Oregon, juries wearing face masks are convening in person to weigh criminal cases.

During a trial, jurors typically observe a witness’ body language and track a defendant’s gaze from just a few paces away, gauging their credibility. Attorneys pick up on the slightest physical cues, adjusting their approach and line of questioning for those on the stand.

And a person has a constitutional right to confront an accuser. Some lawyers told KSL they question whether cross-examination via Zoom would satisfy the Sixth Amendment.

“We all said to the judge, ‘Why would you do it twice?’” recalled Barlow, the deputy Utah attorney general overseeing criminal cases. “Even if you get a conviction, there’s going to be an appeal. There’s going to be a constitutional issue going to the Supreme Court, so you might as well just wait until we’re authorized to do live juries again.”

Clemens Landau, the presiding judge at Salt Lake City Justice Court, wonders whether remote proceedings could in fact lead to a more fair outcome. The removed nature of a video trial might prevent a juror’s potential bias from creeping in and also limit courtroom distractions like people coming and going, Landau said.

“We don’t have an evidence-based metric to say, ‘this is more or less fair than the way we’ve been doing it,’” he said.

Still, some fear attention spans will shrink.

Even the most fascinating trials have tedious points, the lawyers noted, which could be harder to follow remotely. And jurors pledge not to discuss the case with anyone else, a promise that could prove hard to keep while tuning in just feet away from a spouse, roommate or partner.

The Utah Supreme Court put trials on hold in March as it began hashing out how to keep Utahns safe and still honor their rights. Courthouses in certain counties can apply for approval to reopen if infection rates decline or hold steady at low levels, but the judiciary said it doesn’t expect a statewide return to normal before next year.

While virtual trials remain a possibility, it’s unlikely any will be held unless all parties agree.

“It all hinges on whether counsel for both sides are comfortable with the concept,” said courts spokesman Geoffrey Fattah.

Bench trials, wherein a judge reaches a verdict, have continued to take place. But for those who opt for a jury of peers, the wait could be extensive. Many scientists are predicting a second wave of COVID-19, the disease caused by the coronavirus, this summer or in the fall.

The right to a speedy trial is “on pause,” said Brady Smith, a Salt Lake public defender who represents those who can’t afford a lawyer.

Smith is among the defense attorneys advocating for the release of certain clients as the coronavirus has made its way into the Utah State Prison and several jails, with a large outbreak in the Washington County’s Purgatory Correctional Facility. Smith has asked the Utah Supreme Court to reconsider a judge’s April decision against sending one defendant home with an ankle monitor.

Koak Biel, 18, has asthma, a condition that puts him at a higher risk, Smith said. Although he is charged with murder in the drive-by shooting of a Taylorsville woman, two witnesses who originally identified him as the shooter have since recanted those statements, Smith said. Before the pandemic, she noted, his trial was twice postponed.

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“I feel like the system is doing him a grave injustice by not only continuing to incarcerate him in light of the changing evidence, but in light of the deadly virus,” Smith said. “He has this long period of time where he’s just going to be sitting in jail without moving forward on this case, without knowing what’s going to happen on this case.”

At an April bail hearing, prosecutors pointed out the judge has previously found Biel is a flight risk and potential threat to the community. They said jail precautions were numerous and adequate.

Even if virtual trials become an option, Smith said she will advise her client to wait for the traditional setting.

“I think you really dehumanize a defendant if you’re talking about sitting in judgment of them over a video,” she said.

Defense attorney Ron Yengich has similar concerns. He fears jurors would fail to grasp the seriousness of their duty from the couch.

“You’ve got to be there so you can understand how important it is. It isn’t a video game and it isn’t an online discussion,” he said. Instead of visiting clients at jails, he now speaks to them by phone every three days.

“I don’t want my client subjected to the potential of dying of COVID-19 by being transported back and forth and coming into contact (in court). As an old man with at least three co-morbidities, I don’t want to subject myself to that,” said Yengich, 70. “We’re really in new territory, and I think we’ve really got to be careful.”

Typically, dozens of potential jurors are summoned to the courthouse before attorneys cull the group to eight or 12. The panels sit side by side for days on end and then hunker down in a single room to deliberate, making 6 feet of distance a difficult objective.

Salt Lake County District Attorney Sim Gill said the virus poses a host of questions, with no case studies to consult. The one sure thing is that those facing criminal charges must be keenly aware of their rights, he said.

Gill’s prosecutors have delayed filing many charges as they try to manage current cases and adjust to a new system of remote hearings, he noted. It means a current backlog of cases will likely be filed throughout summer, further stressing the courts during an already busy season when crime rates tend to climb.

“These are all open, uncharted areas,” Gill said.

Annie Knox

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