On April 15, 2021, Baltimore City Circuit Court Administrative Judge Audrey J.S. Carrión held a virtual town hall meeting to discuss the Court’s plans for its April 26 reentry to Phase V of the Judiciary’s phased resumption of operations, which will once again include jury trials. Judge Carrión was accompanied by Judge Lawrence P. Fletcher-Hill, Judge-in-Charge of the Civil Division, and Judge Melissa M. Phinn, Judge-in-Charge of the Criminal Division, who each described what practitioners might expect in their respective arenas. The meeting was sponsored by the Bar Association of Baltimore City and included a real-time question and answer session.
All three judges expressed their appreciation for the cooperation and patience of the Bar in meeting the unprecedented challenges of the last 14 months. Judge Carrión noted that there is still much to be done to address a significant backlog as the Court continues to operate under severe health-related restrictions. For now, all COVID precautions remain in effect. Judge Carrión noted, for example, that masks will be required to be worn at all times, without exception. The need to maintain appropriate social distances will impose limitations on the manner in which trials are conducted and the number of jury trials that the Court can hold at one time.
The Court will continue to do as much as it can remotely, including pretrial and scheduling conferences, motions hearings, and on the civil side, fast-track appeals and bench trials. In-person proceedings will be limited largely to jury trials and matters for which there are special circumstances that require live participation as determined on a case-by-case basis.
Judge Carrión announced that jury selection for the first civil jury trial will begin on April 26, with jury selection for the first criminal trial to follow on May 5. Although it will start slowly, the Court hopes that it will be able to reach its goal of 20 criminal and 10-12 civil jury trials per month by the end of the summer.
Civil Jury Trials
Judge Fletcher-Hill reported that all civil jury selection will be conducted remotely via Zoom on Mondays and Tuesdays, with live trials to begin the following day, continuing from day to day until completed. Prospective jurors who come to the courthouse will participate in the selection process from the Court’s Zoom room. Jurors will respond to voir dire questions by way of a written questionnaire, which can be supplemented with questions tailored to a particular case.
Attorneys can expect to be contacted by the assignment office or a judge 2-4 weeks prior to their scheduled trial date to discuss the status of the case and the length of time needed to try it. The Court will use that information to see if the case can be matched with an open courtroom. Attorneys with cases set to begin on a Wednesday, Thursday, or Friday will be asked whether they can be prepared to pick a jury on Monday or Tuesday of that week. They should also be aware that the Court is scheduling several cases for each Monday and Tuesday, but only one day will actually be able to go each day, at least in the near term. Litigants in routine cases may not know whether they will actually begin jury selection until a day or two before their trial date. More predictable arrangements will be made for complex cases.
All participants must be masked. Witnesses will be provided with clear masks to be worn while testifying. Plexiglass partitions, safe distance signage, and other safety precautions have been installed throughout the building.
Two courtrooms will be available for civil jury trials – Rooms 225 and 234 in the Elijah E. Cummings Courthouse, although others are expected to be added over time. These courtrooms are open to the public, subject to capacity limits which vary from room to room. The plan is to begin with two civil trials per week for the first two weeks, increasing to three (to include a more complex trial) by week three.
In response to a question, Judge Fletcher-Hill said that remote testimony is permitted by leave of court and that courtroom technology has been enhanced to make this an effective option. The judge also said that if the parties stipulate to remote testimony, it is highly likely to be permitted. In the absence of agreement, a motion will be required and should be filed in advance. Attorneys who anticipate taking remote testimony should bring a laptop with a camera so that they can participate from counsel table. The jury will be able to see the witness through the Polycom screen in the courtroom. Each courtroom has been equipped with a MiFi system, so attorneys will have WiFi access while in the courtroom. Judge Carrión noted that she is working with the state to get better WiFi throughout the courthouse, hopefully in the not too distant future.
Exhibits for remote witnesses should be marked in advance and supplied to them. Materials to be used for cross-examination and impeachment should be in PDF format and will be shown to the witness through screen sharing technology. Judge Fletcher-Hill reminded everyone that this can be a cumbersome process that requires thoughtful preparation.
Criminal Jury Trials
Judge Phinn reported that criminal juries will be picked in-person on Wednesdays, Thursdays, and Fridays, with live trials to commence when the jury is empaneled. Once started, those trials will continue from day to day until completed. Priority will be given to cases involving incarcerated defendants; those with clients on the street should not expect trial dates before September.
There will be two courtrooms available in May for criminal jury trials – Rooms 231 and 400 in the Clarence M. Mitchell, Jr. Courthouse – with two trials scheduled (a primary and a back-up) set in each room. Both courtrooms have two jury boxes to allow jurors to safely distance during the proceedings. Two additional courtrooms have been set aside as deliberation rooms.
Jurors will assemble in the jury assembly room on the second floor of the Mitchell building at densities reduced dramatically from pre-COVID days. Several other rooms and courtrooms have been set aside for overflow and together will allow 317 jurors to be in the building at one time. This will increase by an additional 168 jurors once the War Memorial building becomes available in June. The Court anticipates summonsing 1,500 jurors on each of the three criminal selection days which based on pre-pandemic experience is expected to yield 300 jurors per day. Judge Phinn warned that jury selection will be a slow process that may extend several days and thanked everyone in advance for their continued cooperation.
Prospective jurors will answer written voir dire questions that are to be developed with the attorneys at a pretrial conference to be held approximately one month prior to jury selection. Motions hearings will also be scheduled at the pretrial conference and will be heard by the assigned trial judge in advance of jury selection day.
Once they have answered the written voir dire questionnaire, jurors will be escorted one-by-one to the courtroom for additional questioning. Each juror and the defendant will be given a clear mask which they will be required to wear during the selection process. They may thereafter wear their own masks. Prospective jurors will stand at a podium (which will also be used by attorneys during trial for opening, closing, and witness examination) that will be wiped down by day porters between each use.
Once voir dire has been completed, the actual seating and striking process will proceed much as it did in the past. The lawyers and the defendant will be provided with headsets to allow sidebars and strikes to occur outside the hearing of the jury panel. The headsets can also be configured to allow confidential communication between lawyer and client throughout the trial so that they will not have to communicate around the plexiglass partitions that have been installed at the trial tables.
As in the past, cases docketed and not specially set or begun will be called at an 11:30 AM postponement docket. Judge Phinn said that the Court is monitoring jail cases, which if postponed are now being set for July. The Court is also hoping to be able to accommodate cases with two defendants in the near future and is working on how best to handle larger groups.
All courtrooms are open to the public, but space is limited. Rooms 231 and 400 can safely accommodate 12 and 20 people, respectively, and seating priority will be given to family members. While the trial tables are set up for two attorneys, Judge Phinn asked that co-counsel and other assistants attend only if their participation is truly necessary.
All three judges stressed that this is still a work in process subject to the whims of the coronavirus and periodic updates from the CDC and others. Judge Carrión said that she has and will continue to rely on advice and suggestions from the bar, but cautioned that the situation remains fluid. The Court will modify its procedures based on changing conditions and on what it learns in the next few weeks.