Jury Trials in the Covid Era, an Interview with the Hon. Anthony Battaglia

California’s winter lockdown is easing, and California’s federal courts are again reopening.  Practitioners and judges wondering about the future can look to the Southern District of California for guidance on potential next steps.  The Southern District designed a Covid-19 safety protocol that allowed the District to safely hold many in-person jury trials during a three-month period in 2020 and to again resume safe in-person jury trials on March 8, 2021.

We sat down with Judge Anthony J. Battaglia—who led the effort to prepare the protocol and tried a number of in-person trials in 2020—and discussed the Southern District’s success in holding safe in-person jury trials in the Covid era.

Like all of California’s federal courts, the Southern District of California stopped all trials in March 2020, when California went into its first lockdown.  The Southern District started planning for in-person trials soon thereafter, and Judge Battaglia was tasked to lead a Strategic Committee on Reopening.  The committee designed a protocol for safe in-person trials, and the District began to allow in-person trials on August 24, 2020.  As Judge Battaglia explained, the District adopted a “measured patient approach where you go incrementally into a trial and then a couple trials” and slowly build capacity.  The District continued to build capacity until December 9, 2020, when in-person trials were stopped in response to California’s winter lockdown. 

By the time that lockdown started, the District was increasing its weekly trial capacity and its trial schedule was fully booked for many months.  There was also a long waitlist to use trial dates vacated by settlements or pleas.  During the nearly three-month period that in-person trials were allowed before the winter lockdown, the Southern District held 11 jury trials and 22 bench trials.  Of the 11 jury trials, 8 were criminal and 3 were civil.  Of the 22 bench trials there were 4 civil, 2 felony-criminal, and 16 misdemeanor trials.  Many more cases also were resolved because of the protocol, as the existence of credible trial dates led many cases to settle.

The Southern District’s protocol’s guiding principles were physical distancing, elimination of physical contact, and minimization of movement.  Physical distancing was achieved by rearranging courtrooms to ensure that trial participants were spaced far enough apart.  Some of the District’s courtrooms have a jury box that is large enough to hold a civil jury while ensuring sufficient juror spacing, but some courtrooms needed to be rearranged for civil trials and all the courtrooms needed to be rearranged for criminal trials.  The District’s plans suggested a number of alternate layouts, and the layout chosen by Judge Battaglia serves as a good example.  In his Court, jurors were placed in the courtroom gallery, and observers were housed in a separate room connected via video link.  The counsel tables and podium were then turned around to face the jury, and the podium was matched with a high-chair and converted into a witness box.   This allowed all participants to face the jury but forced participants to have their backs to the judge.  That problem was addressed through the use of video cameras, which allowed the judge to monitor all counsel and witnesses.

To eliminate contact between participants, paper exhibits were forbidden. Counsel were required to use digital exhibits and, if a digital exhibit was not available, use a projection table to display the contents of a physical exhibit without requiring any physical contact.  Further, parties and counsel were forbidden from passing notes or whispering comments and were instead instructed to use text messages or email to communicate. This required a special admonition from the court explaining to the jurors that participants were not rudely checking their phones during trial but were instead communicating through the only means available to them.

Movement was minimized by requiring counsel to stay seated at all times, except during opening statements and closing arguments, when they were allowed to use the podium.  All participants were required to wear masks at all times.  Witnesses were given special clear masks for use during testimony, so jurors could see and evaluate their facial expressions.  Similarly, jurors were asked to wear clear face masks for the voir dire process.  Judge Battaglia reported that trials proceeded very well despite these significant changes.  He was pleasantly surprised to see how well the lawyers adapted and did not think that advocacy suffered at all.

An important part of the Southern District’s success is its commitment to communication with jurors, which begins before jurors arrive.  All prospective jurors were sent a letter from the Chief Judge explaining the safety protocol, noting that the protocol was designed with the help of public health experts, and reiterating that the safety of jurors is a paramount concern for the Court.  Thanks in part to these detailed communications, the number of jurors that received a summons but did not appear for jury duty only increased by 6%.  Communications continued throughout the trial process.  The protocols were again explained to potential jurors after they arrived, and jurors were regularly polled during the trial process to confirm they continued to exhibit no Covid-19 risk indicators and to inquire as to their experience with and opinions of the safety precautions.  Judge Battaglia noted that a few doctors that were called up for jury duty reported that they felt safer in court than they did in the hospital.

The number of jurors called up in one day was minimized by coordinating trial calendars and ensuring that only one jury trial started per day.  The District started by holding a single trial on its first week and was slowly building up to its planned maximum of one jury selection per day (Monday to Thursday) when California’s winter shutdown order issued.  This daily limit enables the use of jury assembly rooms for voir dire, as the courtrooms are not big enough to hold a full voir dire panel while ensuring enough distancing.  The protocol also forbids more than one simultaneous trial per floor, again to limit the number of participants that need to congregate in one place.  Unnecessary contacts are further minimized by sequestering the jury for the duration of each day and providing them with free lunch and snacks to eliminate any need to leave the courthouse. 

Judge Battaglia was asked to lead the Strategic Committee on Reopening because he is the chair of the Ninth Circuit’s Jury Trial Improvement Committee and he led that committee’s effort to develop recommendations for holding jury trials during the pandemic.  He also participated in the development of the subsequent nationwide recommendations issued by the Administrative Office of U.S. Courts.  The Strategic Committee on Reopening took those recommendations, and Judge Battaglia’s experience, and worked with public health and experts and other stakeholders to prepare a protocol that was appropriate for the District.  The success of the protocol can be attributed, in large part, to the participation of those stakeholders.  The committee included the Chief District Judge, the Chief Bankruptcy Judge, the Presiding Magistrate Judge, the United States Attorney for the Southern District, the Federal Public Defender for the Southern District, the U.S. Marshal, the Clerk of Court, and representatives of the civil and criminal bars.

The success of the protocol can also be attributed to the cooperation and coordination of the many judges in the Southern District.  District judges have broad discretion and are accustomed to controlling their own calendars, but the judges of the Southern District agreed to work with a shared calendar system to ensure that the limits imposed by the protocol could be maintained.   That is just one example of the types of cooperation that were needed for the protocol to succeed, and Judge Battaglia was quick to note that the success of the Southern District’s approach can be directly traced to the cooperative and collegial relationship amongst the judges of the Southern District.

About Judge Battaglia

Anthony J. Battaglia is a federal judge on senior status with the United States District Court for the Southern District of California. He joined the court in 2011. Prior to his elevation, he served as a federal magistrate judge for the same district court. Battaglia assumed senior status on March 31, 2021

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