BOSTON — With jury trials back underway in Massachusetts after a pandemic-induced hiatus, Governor’s Council members used a judicial confirmation hearing Wednesday to voice concerns around COVID-19 safety and how face coverings impact the ability of lawyers to try cases.
Jury trials resumed in select counties in January. Now in Phase 2 of the high court’s plan, which started March 1, there have been 22 jury trials this year with a 23rd ongoing in Woburn Superior Court, according to a Supreme Judicial Court spokeswoman.
While some courthouses are hosting these trials, in five counties the Trial Court is also leasing open venues with plenty of square footage. Lombardo’s function hall in Randolph, Eastfield Mall Cinemas in Springfield, the Cape Codder resort in Hyannis, and the Holiday Inn in Pittsfield are all under agreement with the Trial Court as off-site jury trial locations, along with a previously leased courthouse in Greenfield.
Andrew McKeever, spokesman for the Berkshire District Attorney’s Office, said jury trials are expected to begin April 5 at the Holiday Inn.
The Trial Court is also looking at possible lease options in Suffolk County and is in “active discussions” with federal courts about using the federal courthouse in Boston, the spokeswoman told the News Service.
Bringing juries back to court during the COVID-19 pandemic means six jurors instead of 12, modified courtroom layouts, plexiglass, and — a point of frustration for Councilor Robert Jubinville — face masks.
“The thing that concerns me,” Jubinville told the District Court nominee before him, “on the criminal side of the court, you as a judge or lawyer or prosecutor, or the jury, how do you determine whether a witness is credible or not when they wear a face mask?”
Gardner District Court Clerk Magistrate Whitney Brown was fielding questions from the council at her hearing for a Westborough District Court judgeship. While Brown said safety must come first, she said “it would be nice” if masks could be removed with the use of social distancing.
Wednesday’s hearing was in the State House’s Great Hall where the council has been meeting for some months. Councilors and nominees sit at a distance from each other, allowing them to de-mask while speaking or answering questions. Around half the council usually opts to participate via videoconference, instead.
“We have, over thousands of years as humans, developed a technique of looking at people’s faces to determine reactions, and to decide whether or not we feel a threat, or we think somebody is not credible with us. We’ve learned that through our lives,” Jubinville said.
The Milton Democrat added that he is “all for safety, but not at the expense of taking away somebody’s ability to have a fair trial” including the ability to see witnesses testify. He said a lawyer’s work is further handicapped when they cannot see jurors’ reactions to testimony.
The latest order from the high court does not appear to address the use of face coverings at trial.
Said nominee Brown, “I think that you’re right, that needs to be addressed. And I think that the burden would be on the Trial Court to create a space that is safe where people can remove their masks. Because I think we’re balancing that with, also you don’t want jurors who are afraid or apprehensive, who are worried about their health and safety, not really paying attention to the proceeding, because that’s not really fair to the defendant either.”
Count Councilor Christopher Iannella among those feeling some apprehension about going to the courthouse.
Iannella laid out a hypothetical situation for Brown in which a jury trial is scheduled for her courthouse but a participant of the trial — like an attorney or witness — says they are uncomfortable being in court due to fears of contracting the virus.
“I’ve been vaccinated. But let’s assume I haven’t been. I don’t feel comfortable. I’m really nervous about it. I don’t want to participate. I mean, you may say six feet, but there’ve been people who are seven, eight feet apart that have gotten COVID,” Iannella said.
The Boston Democrat repeatedly pressed Brown on whether she would automatically continue the trial to a later date. The nominee said one person’s discomfort would have an impact on everyone else in the courtroom, and that she would likely grant a continuance after first hearing details of the person’s concerns.
“We have to make sure that we’re delivering justice, we’re not just getting the job done,” Brown said in response to both Jubinville’s and Iannella’s lines of questioning. “And I think one thing COVID has taught us is that we need to be able to be flexible. And we’re actually taking a much broader look at all the facets, now, of jury trial in the court system, which I think we wouldn’t have but for the pandemic.”
In her capacity as clerk magistrate for the Gardner and Winchendon courts, Brown said she had been flexible with some attorneys, set up teleconferences, and “kept their cases on track” during the pandemic when they did not feel safe returning in person.
Appointed to her Gardner post in 2005 by Gov. Mitt Romney, Brown was previously first assistant clerk magistrate of the Middlesex Superior Court in Cambridge, and earlier worked for Finneran and Associates in Newburyport and Kezer & Kezer in Malden.
With her in the Great Hall on Wednesday were her wife and two of their children. A third child was unable to attend because of COVID-19 restrictions at her college campus, while a son who was present Wednesday is the same age but deferred his enrollment until next fall because of the pandemic.
Several councilors said outright that they plan to support Brown’s confirmation at the next assembly.
Among those apparently supporting her is Councilor Marilyn Devaney, although the two appeared to hold different positions broadening the age range for the Juvenile Court.
Brown said she was in favor of raising the age of juvenile jurisdiction and started to cite a scientific finding that the brain is not fully developed until age 25, before she was cut off by the Watertown councilor.
“I had four children before I was 25 and my brain was very formed, OK? I really hate hearing that,” Devaney said. “You can’t go by a book, OK?”
And while taking a judgeship — with its 70-year retirement age — means giving up a lifetime clerk magistrate post, one witness said it’s the best way to get a good judge.
Gardner District Court First Justice Arthur Haley said that he traveled the same route, and that starting as a clerk magistrate, running a courtroom and facing the crowd, provides a “level of comfort.”
The council did not receive any new nominations Wednesday from Gov. Charlie Baker. Two pending nominees, Kevin Smith for the Land Court and Dana Doyle for the Probate and Family Court, are scheduled for hearings on March 31 and April 7.