As a smattering of criminal jury trials resume across South Carolina, prosecutors had generally positive things to say about the return to courtroom proceedings, but the group that represents South Carolina criminal defense attorneys insists that the state isn’t prepared, and that, at the very least, trials need to be conducted in a “smarter manner.”
Aiken, Horry, and Laurens counties were the first to hold jury trials, beginning in August. The office of Eighth Circuit Solicitor David Stumbo prosecuted the first trial to resume during the pandemic, in Laurens County. Stumbo said that he didn’t blame defense attorneys for wanting to delay the trials.
“It’s not uncommon for the defense bar to want to delay jury trials for a variety of reasons,” Stumbo said. “Time is always on the side of the defendant, not the prosecutor. I think everyone would acknowledge that. Be that as it may, I think the courts, from the Chief Justice on down to the circuit judges who have tried these cases, have done a fantastic job of keeping all the parties safe and healthy and allowing us to get our jobs done. I think they have struck a good balance on that.”
But the South Carolina Association of Criminal Defense Lawyers is warning that it simply isn’t safe for the state to resume jury trials as it stands now.
SCACDL’s board has met numerous times in the past several months to review the issue and formed subcommittees to study how to safely resume jury trials, said Andrew Potter, an attorney in Anderson and SCACDL’s president. When that work began, COVID-19 cases were slowly decreasing, and the committees came up with recommendations on how to resume them safely, without detriment to defendants. Since then, however, the number of COVID-19 cases has “skyrocketed,” Potter said.
“The wide impact of COVID-19 prohibits a fair cross-section of the community to be available for jury service,” Potter said. “In addition to the lack of a constitutional jury panel, a criminal defendant forced to trial would be denied the right to an open and public courtroom, the right to confront an unmasked witness, and the right to unfettered communication with their lawyer in real-time without concern that his lawyer might infect them with COVID-19. These bedrock fair trial rights cannot be compromised away.”
One of the primary issues is the size of the courtrooms, said Kitty Sutton, SCACDL’s executive director. Whereas some jurisdictions, like Richland County, have spacious courtrooms that can accommodate social distancing reasonably well, maintaining a safe distance is much tougher in many other counties that have courtrooms that are much smaller. Sutton also said that SCACDL members have noted several instances during recent trials in Laurens and Horry counties where social distancing wasn’t observed.
“The intentions were good, but the reality of keeping people socially distanced just couldn’t play out,” Sutton said.
Masks are also an issue. While they are necessary, Potter said, attorneys worry that when jurors see a defendant wearing one, they will think of the quintessential “bandit with the black hat.” Potter worries that they could also cause some jurors to feel pressure to wrap up deliberations quickly if one or more jurors decides to take off their masks, even for a moment, in the deliberation room.
“If I’m on a jury and wearing a mask, and the guy next to me takes his off, my reaction would be, ‘I want to get the hell out of here,’” Potter said.
Those concerns are likely to become an issue for an increasing number of defendants as the resumption of jury trials helps to clear a backlogged docket.
Fifteenth Circuit Solicitor Jimmy Richardson said that his office has already calendered 20 cases for trial. Of those, four cases were continued because of an attorney’s illness and 14 defendants took a plea bargain. The other two defendants were tried on charges for burglary and failing to register as a sex offender, and both were found guilty.
“A lot of these defendants were saying, ‘I want a trial,’ and we all knew they didn’t want a trial, they just didn’t want to plead,” Richardson said. “We were able to really move our docket along with the threat of a jury. The only thing that makes this system work is a trial by a jury of your peers. When you are able to offer that, everyone gets serious. If there is no threat of a jury trial, no one is going to get serious.”
Potter said that her association knows that jury trials must ultimately resume, but safety has to be paramount, and right now the South Carolina legal system is moving forward with no standard protocol in place. Potter said that exposure to COVID-19 during a jury trial could have a domino effect on an entire community, including police officers, a jury pool, the clerk of court’s staff, security officers, and custodial staff, as well as their family members. Exposure of an incarcerated defendant could spread to the county jail, while an outbreak in a courthouse could shut down a solicitor’s office or public defender’s office and prevent other cases from being resolved.
“What is frustrating is there are a lot of smart people in the legal profession who say ‘this is the best way to handle it,’ but the patchwork approach that is being taken right now is a concern,” Potter said.
Second Circuit Solicitor Strom Thurmond Jr.’s office tried a first-degree burglary case the week of Aug. 25 in Aiken County. Thurmond said that 200 people were summoned for jury duty and many were released after they filled out a COVID-19 questionnaire. Jury trials will fully resume in October, and Thurmond said that, going forward, the courts will summon 250 potential jurors.
“Our staff was comfortable, and I observed most of the trial,” Thurmond said. “I see no reason why we can’t continue.”
Follow Bill Cresenzo on Twitter @bcesenzosclw