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Jury duty in June? Maybe not, defense lawyers say

Don't look for a rush to fill these seats at the La Salle County Courthouse. Though jury trials can resume in June, defense lawyers say they're wary of summoning jurors amid the pandemic. Among the concerns is being able to see the faces of witnesses and prospective jurors behind surgical masks.
Don't look for a rush to fill these seats at the La Salle County Courthouse. Though jury trials can resume in June, defense lawyers say they're wary of summoning jurors amid the pandemic. Among the concerns is being able to see the faces of witnesses and prospective jurors behind surgical masks.

Another few days and you can get your hair cut, hike at a park or eat dinner at a restaurant with outdoor seating. Could you also get called for jury duty?

It is possible: Juror summons go out soon for trials currently set for June.

But anyone who dreads being jammed into a jury box next to someone with a bad cough should take a deep breath. Local defense attorneys said Thursday that while it’s up to their clients, they’re wary of going to trial until the novel coronavirus pandemic eases. There will be long talks with their clients about when to go to trial and about waiving speedy-trial rights.

“Every single one of these jurors is going to be on edge, upset and scared,” said Doug Kramarsic, a La Salle attorney and assistant La Salle County public defender.

“Having 12 people sitting there worried about catching a virus that can kill them?” he said. “That can play both ways. They could look at a defendant and say to themselves, ‘We’re sitting here because of you.’ Or that could play against a prosecutor, as well.”

A few defense lawyers already have weighed such considerations asked for June trials to be reset.

Matthew Mueller, a Morris defense attorney, said he had a chance to hold a motions hearing for one of his criminal cases. When the judge ruled witnesses would be required to wear surgical masks, however, Mueller saw no choice but to continue the case indefinitely.

“From a defense attorney’s standpoint, the best way to see if somebody’s lying is to see their faces,” Mueller said, “And you can’t see somebody’s face behind a mask.”

That goes for jury selection, too. Ottawa defense attorney Eric Miskell said he needs an unobstructed look at prospective jurors – “Who’s rolling their eyes? Who’s smirking?” – before deciding who can be trusted with his client’s face.

“Jurors don’t want to be there to begin with, even without COVID-19,” he said. “Disgruntled jurors are nothing new. We’ve been dealing with that for hundreds of years. But put a mask on a juror? Now they’re really disgruntled. The question is, who would they be mad at? The defense or the state?”

A test case will be required to answer those questions, as Miskell said he cannot foresee working around jury trials using electronic media.

Though he recently participated in La Salle County’s first civil proceeding using Zoom – “It actually worked out well” – trying a criminal case offsite poses a slew of constitutional problems, not least of which is protecting the defendant’s right to face his accuser.

Ottawa defense attorney Ryan Hamer said he foresees having different talks with clients out on bond than with those held in La Salle County Jail. The non-custodial suspects probably will consent to postponement, he allowed, but those in jail might well choose to roll the dice with a jury rather than risk prolonged confinement during the pandemic.

“It’s just a whole new world we’re entering into,” Hamer said. “Sooner or later somebody’s going to have that first jury trial and I wonder what it’s going to look like as far as seating and bringing witnesses in. It’s going to be interesting.”

Interesting for prosecutors, too. Miskell pointed out the courts must set up cumbersome rules and procedures governing lunch and bathroom breaks, to name a few. Unhappy jurors might regard themselves as prisoners of the state and could reward their captors with a not-guilty verdict.

“Right now, I think it all works in favor of the defense.”

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