Residents of Escambia and Santa Rosa counties have once again started to receive letters in the mail summoning them for jury duty as trials are starting to be scheduled again in the First Judicial Circuit of Florida after they were halted due to COVID-19.
While that has brought relief to both defense attorneys and prosecutors, the circuit’s state attorney and public defender do not agree about which cases should go to trial first, and they don’t see eye-to-eye on the issue of masks in the courtroom.
“We are now eligible to try jury trials in all four counties,” State Attorney Bill Eddins told the News Journal. “However, there remains aspects of the trials that are different, and as you can expect, the defense bar and the defense lawyers and my office will litigate many new issues that did not exist before the age of COVID.”
Escambia County courts have been cleared to pick juries and try cases beginning Sept. 21, according to John Miller, chief judge of the First Judicial Circuit.
“Santa Rosa County was set to go on Sept. 28, but they had a spike in their COVID cases,” Miller said. “So they are now set to pick juries and try cases the week of Oct. 9.”
Jury trials in Okaloosa and Walton counties are scheduled to begin Sept. 14.
The chief justice of the Florida Supreme Court has mandated that any resident with a pre-existing condition who is summoned for juror duty is eligible to seek an exemption from that duty for purposes of health and safety, according to Miller.
The mandate also states a parent who has to stay home to care for a child amid the pandemic — for instance, a parent with a young child attending school virtually — will receive an automatic excusal, he said.
Postponing trials leads to major backlog
In the spring, the Florida Supreme Court postponed all trials in all of the state’s circuit courts, fearing courthouses could prove ripe habitats for the coronavirus to spread since it takes a lot of people — attorneys, judges, clerks, paralegals, typists, bailiffs, custodial staff, jurors and defendants — to properly orchestrate a trial.
The resulting backlog of untried cases has concerned court administrators, spawning debate in the legal community about citizens’ rights to speedy trials and leaving many defendants in limbo as they wait for court dates.
To fix the problem, Eddins said the Florida Supreme Court commissioned a “work group” to devise a set of criteria to determine when and where trials could be safely held without risking participants’ exposure to COVID-19 in courtrooms.
Only recently have conditions related to the spread of the virus in the Panhandle’s four western-most counties improved enough to meet the criteria that constitutes a safe environment for jury trials.
“Depending on the severity of COVID and the way you measure it, determines how much the court system can accomplish,” Eddins said. “And we were one of the first circuits to move into what’s called Phase II, which allows us to have jury trials.”
The criteria for any judicial circuit to enter Phase II of the state Supreme Court’s safety plan are not comprised of hard-line numbers. Instead, the criteria is based on variables determined by population size and case-specific data.
Examples include having no confirmed cases of COVID-19 in a court facility within a 14-day period without a “deep cleaning” of potentially exposed areas and having generally improving COVID-19 case numbers and related deaths in relation to a community’s population density over a 14-day period, according to the Supreme Court order.
The First Judicial Circuit initially entered Phase II around late May or early June, but the numbers then spiked and required the courts scale back its operations, according to Miller.
“Now that conditions have improved, we are still in Phase II,” he said. “But now our administrative judge in Escambia County, Judge (Jan) Shackelford, recently entered an administrative order that opens up operations somewhat more.”
Shackelford’s order states that the First Judicial Circuit returned to full Phase II operations Sept. 8, allowing for criminal jury trials.
Resuming court cases also poses challenges
But now that trials are back, new issues have arisen, such as what cases will go to trial first and who will have to — and who will be mandated not to — wear a mask in a courtroom during a trial.
Bruce Miller, the Public Defender for the First Judicial Circuit, told the News Journal that he and his office believe that trial order should be dictated by which defendants’ cases have been on hold and waiting to appear before a judge for the longest period.
“When it comes to who is going to go first and who has priority, I think we have to look at the age of the case and who is incarcerated,” he said.
Eddins disagrees and favors the idea of bringing what he described as “routine cases” to trial first, regardless of whether cases involving more severe criminal charges have endured longer stints of waiting to be tried.
He described “routine cases” as ones not involving criminal charges that carry the potential of life sentences and that could be tried within a single day of testimony in court.
“The type of cases that I am talking about are grand theft, burglary, possession of drugs, trafficking in drugs, domestic violence, driving while license is suspended, fleeing and eluding police, aggravated assault, aggravated battery,” Eddins said.
These type of cases require fewer people — smaller jury pools, fewer selected jurors, less alternate jurors — and their procedures take less time to complete than those of cases involving more severe crimes.
“Not only do you have more preemptive challenges in the life felony cases, you also have more jurors, which makes it more difficult, particularly in regard to socially distancing the jury,” Eddins said, adding that he sees “routine cases” as safer options to bring to trial for the foreseeable future.
Assistant State Attorney Greg Marcille said the State Attorney’s Office plans to exercise its “significant input” with the courts to achieve its desired trial order.
But Public Defender Miller has his own perspective.
“I understand the state has their feelings,” he said. “But it would be dangerous if the state has an elevated position at the table — had more say than the defense attorney.”
And he added, “They don’t.”
The issue of face masks, he said, is a situation of “constitutional rights banging up against policy.” As it stands, anyone who attends an upcoming trial must enter the courthouse wearing a mask.
“If you can’t see a witness’ face, it is a problem. If you can’t see a jurors’ face and how they react to questions, it’s a problem,” Miller said. “You have a constitutional right on some of these things, and it’s just not a good look for your client to be wearing a mask in court.
“You have to wonder about the accumulative effect,” he continued. “They are telling everybody, it’s not a safe place, and at some point, you have to worry about if the jury can stay focused on the reason that they are there.”
Ultimately, judges will have the discretion to dictate what happens in their courtrooms including who wears or does not wear a mask.
If Miller and Eddins agree about one thing, it’s that they both expect defense attorneys to urge and argue often on their clients’ behalf that at least some participants should be ordered to remove a mask during upcoming trials’ proceedings.
If this is to occur, the issue of masks will be decided by each judge on a case-by-case basis, Eddins said, adding, “Our office is going to vigorously support the right for anyone who wants to wear a mask to wear one.”
Colin Warren-Hicks can be reached at email@example.com or 850-435-8680.