SALT LAKE CITY — As legal cases continue to pile up while the pandemic tightens its grip on Utah, the state's busiest judicial district is working on a plan to begin holding a limited number of jury trials.
Judges, attorneys and state health officials are still hashing out details of the initiative set to start Nov. 30, according to some helping to craft the pilot program.
Nothing is set in stone, but the plan may include interviewing and selecting jurors via videoconference, then using rapid COVID-19 testing to determine whether they will hear testimony as they sit several feet apart.
Courts in most parts of the state have postponed jury trials indefinitely since the start of the pandemic, seeking to limit traffic to courtrooms that could put defendants, employees and jurors at risk of infection.
More than 120,000 Utahns have tested positive for the coronavirus to date as infection rates continue to surge statewide. Of the total confirmed to have the virus, more than 40% live in Salt Lake County, according to figures from the Utah Department of Health.
But after roughly eight months of trial delays in Salt Lake City, plus growing concerns about an unwieldy backlog, the 3rd District Court is hoping to use rapid tests to its advantage.
Attorneys participating in the discussions emphasize they are in the early phases. And more questions are bubbling up than being answered, ranging from the reliability of the quick-turnaround results to how best to ensure that a defendant doesn't give up any rights.
"It's the continuation of a dialogue I think the court is trying to do in a very thoughtful way," said Salt Lake County District Attorney Sim Gill. "We want to get it right. We understand the urgency, so how do you balance the anxiety, the safety and the logistics?"
Third District Presiding Judge Mark Kouris and Judge Todd Shaughnessy weren't ready to speak publicly about the program they're overseeing and declined interviews through a state courts spokesman. But for several days, judges in the district have been placing certain defendants who are in jail ahead of trial on a shortlist.
For example, 3rd District Judge Vernice Trease told an attorney for a man facing domestic violence charges on Tuesday that she had identified him as a candidate.
But instead of opting for the experimental trial, he pleaded no contest Tuesday to two misdemeanor charges as part of a plea bargain.
We want to get it right. We understand the urgency, so how do you balance the anxiety, the safety and the logistics?
–Salt Lake County District Attorney Sim Gill
The pilot program envisions trials would be held in the biggest courtrooms available. Some jurors would sit in the typical jury box, with others seated nearby, set apart from the defendant, judge, attorneys and any witnesses.
Depending on the severity of the charge, the size of the jury could range from four to eight, plus an alternate. The alternate is an extra juror who can fill in if a member of the panel is disqualified or can no longer participate.
The anticipated start date falls on the Monday after Thanksgiving, noted Richard Mauro, executive director of the Salt Lake Legal Defender Association.
Public health directives conflict with tradition, so it's unknown how many Utahns will follow guidelines to limit the holiday gatherings. Confirmed cases of coronavirus ticked up in Utah following the Memorial Day and Fourth of July holidays.
"What happens if a bunch of people come in and test positive on the day of trial, or a client tests positive, or a court clerk, or a judge?" Mauro asked. "Those contingencies are things we all need to think about."
Many prospective jurors may oppose coming into the courthouse, including older people, those at a higher risk of contracting the virus, or people who live with a medically vulnerable person, Mauro noted.
"Certainly there's a fear that if you're looking at folks who are potentially higher risk, and those may include communities of color that have been disproportionately impacted by COVID-19, do we then run into some problems with fair and representative cross sections of communities that we're bringing in for jury service?" he said.
"The flip side of this is there are a bunch of people that are waiting in jail for their trials, and it's very much unclear whether they're going to be able to actually get a trial," Mauro said.
Utah is one of eight states that have placed restrictions on jury trials until further notice, in addition to Washington, D.C. Others are allowing the decisions to be made on local levels, including many that allowed statewide limits to expire, according to the National Center for State Courts. Just five states, including neighboring Nevada, did not issue a statewide order.
The Utah Supreme Court is giving individual courthouses the green light to hold trials only if the infection rate has decreased or holds steady at a level that does not threaten to overwhelm hospitals. One such trial was held in Duchesne County, where a jury in October found Kristy Lee Whitchurch guilty of murder.