In March, the Iowa Supreme Court halted all criminal jury trials to curb the spread of COVID-19 among defendants, attorneys, judges, jurors and court staff. The initial moratorium until July was extended until September.

Now, six counties around the state are serving as guinea pigs for the new restrictions and procedures to see if the court can hold trials while protecting both the health of all participants and the rights of defendants to a fair trial. Three have held their first trials piloting the Jumpstart Jury Trials Task Force’s recommendations.

“We want to make sure jurors are able to focus on what’s happening in the courtroom,” said Jerry Schnurr, Fort Dodge civil attorney and member of the task force. “We want them to feel assured so they’re focused on the evidence and not whether they’ll get sick or take something home.”

Calhoun County is the third pilot, said Steve Davis, communications director for the Iowa judicial branch, noting that initial feedback from participants indicated Tuesday’s trial went well.

-Messenger photo by Elijah Decious
New procedures in criminal jury trials are being tested in six counties across the state, including Calhoun County, as an Iowa task force evaluates the best practices to ensure everyone’s safety in the courtroom while preserving the rights of defendants to a fair trial.

The most superficial changes are obvious: masks or face shields on all participants, cleaning supplies and hand sanitizer stationed around the room, plastic barriers between seated participants and some jurors seated in the gallery to enforce social distancing. Jurors will now be shown evidence on a screen instead of being allowed to physically handle it.

But with a myriad of new restrictions outlined in a 21-page report that could completely transform the ceremonial nature of the trial held in grave respect, there’s more to it than putting up extra barriers and doing extra cleaning.

“We try to be as smooth and efficient as possible,” said Calhoun County Attorney Tina Meth Farrington. “Now we’re trying to be as smooth and efficient as possible under COVID conditions.”

Since jury selection, by nature, requires a large number of people to be in the room, many courtrooms have been found ill equipped to facilitate social distancing of six feet between potential jurors before voir dire, the process that determines who will be selected for the jury.

In Rockwell City, those who couldn’t sit on the benches of the courtroom sat in the wellness room in the courthouse’s basement, usually reserved for the treadmills and fitness equipment used by employees. Using a live streaming feed, those in the basement watched proceedings until they were called up to fill a vacancy in the jury pool.

-Messenger photo by Elijah Decious
As Calhoun County volunteered to pilot a criminal jury trial with new safeguards for COVID-19, jurors sat distanced and were required to wear masks or shields.

For the multiple murder trials on Webster County’s docket, even that solution might not allow for enough seating capacity with jury pools as large as 100 people. Pilot trials in Muscatine and Scott counties held last week began jury selection at larger venues outside of the courthouse before moving the selected jury to the courtroom for trial.

Then, there’s a myriad of complications posed by the face coverings in the courtroom.

Aside from muffled speech from masks, which the court hopes to mitigate in part with increased use of microphones, it has become apparent just how critical facial communication is for both attorneys making their case and jurors watching witness testimony.

“I look at a lot of body language and facial expression,” said Meth Farrington, “so sometimes what I perceive from those observations leads me to a question or asking a question in a different way.”

“The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition,” the Jumpstart task force wrote in their recommendations, published in July.

-Messenger photo by Elijah Decious
Social distancing, madatory face mask or shield use and physical barriers between seated parties are just a few of the rules being tested in courts like Calhoun County’s as Iowa determines the best practices to resume jury trials across the state.

Jurors Tuesday were required to wear transparent face shields during deliberation, which took place in the vacated courtroom due to the small size of the deliberation room.

But some defense attorneys have taken more serious issue with masks, saying that the face coverings, quite literally, violate their clients’ rights to a fair trial. With witnesses, some say the defendant has not only the constitutional right to confront their accuser in the same room, but to be able to see their facial expressions and demeanor as they testify.

“Jurors use (facial cues) to question witness credibility,” said Michelle Wolf, one of Nevada’s public defenders who handles class A felony cases for the state.

“The defendant has the right to a clear sight of view and clear communication with the witness,” said Ryan Baldridge, First Assistant Webster County Attorney.

To the extent that her clients go to trial, Wolf said she will encourage defense witnesses to wear face shields.

“As uncomfortable as shields are, I personally would prefer them over masks,” Baldridge said, since so much communication is done nonverbally with the face.

But those aren’t the only confrontation right issues posed by the face coverings. Wolf said attorneys would also be limited in their ability to physically approach the witness stand — to show a witness a transcript in prior depositions where they contradicted themselves, for example — and to physically communicate with their client while examining witnesses.

Attorneys and clients theoretically staying six feet apart during the constant back-and-forth nature of communication during a trial would be unfeasible, Wolf said. The task force proposes using a white noise machine, should attorneys choose to keep their distance, to mask their private conversation from the jury in the courtroom.

“I can’t envision a case in which I would choose to sit six feet apart from a client,” Wolf said. “I need to be able to talk to them when things are going on.”

In a recent motion for Hamilton County murder defendant Zackery Bassett, Wolf argued that in addition to the other issues, the time limits on conducting voir dire to tailor a fair jury, deliver opening statements and close with effective arguments would make a fair trial impossible. The task force has recommended more control on the amount spent on those activities, which can account for a substantial portion of a trial, to minimize the time physically spent in a courtroom.

In trials for some serious cases, Wolf said many of the restrictions simply have no reasonable workaround that would ensure her client’s rights are being preserved.

“Ultimately, I think the best way forward is a vaccine and that people get it,” she said. “It’s just unfortunate that, right now, we have to pick between our clients having a speedy trial and having a fair trial. Some cases cannot be tried fairly under these circumstances.”

That means many of her clients, already in for lengthy stays at county jails, will have to wait even longer to have their day in court, further eroding morale.

“At the end of the day, it’s going to be a matter of trial and error,” Baldridge said. “Being part of a jury trial is one of the most important things that a citizen can do, and we don’t want to take away from the seriousness of that with concerns about wellbeing and health.”