ELLSWORTH — If everyone is wearing masks in a jury trial, how do jurors judge the credibility of victims and others testifying?
That issue was just one of scores of COVID-19-related problems raised on May 14 during a virtual session of a newly created stakeholders’ group for the Administrative Office of the Courts. The Honorable Andrew Mead, acting chief justice of the Maine Supreme Judicial Court, moderated the forum.
Since mid-March, COVID-19 has crippled Maine’s court system, which must begin contending with a backlog of cases from family matters to criminal and civil cases, including business, real estate and other disputes such as landlord/tenant problems.
Maine needs its court system up and running at full power as soon as possible, according to the more than 24 attorneys and officials who conferred with Mead during the virtual session.
“By definition, courthouses and courtrooms are places where people gather typically in close quarters,” said Mead. “Back in the dark days of March, we knew we had to act quickly for the safety of our people and others. We had a duty to protect the public and our people and we had a duty to serve as a forum for the resolution of disputes. Those two things are difficult to balance.”
“My vision is to see the courts back up and running as business as usual,” said Mead. “What we’re missing from our planning is your information, your insights and your creative suggestions. That’s why we’re here today, we need your input.”
The courts have ordered that anyone entering a courthouse, including court employees who deal with the public, be clad in a face mask due to the pandemic.
The difficulty masks may pose in trials was raised by attorney John P. Gause of the Bangor firm Eastern Maine Law. Gause has a specialty in employment discrimination cases and civil rights issues.
“A big problem from our perspective” is these cases deal with bias, said Gause. “It’s important for jurors to assess credibility in person.”
“A mask is not an effective way to read someone’s intent,” Gause said. “There was one suggestion to wait on jury trials until masks could come off. On the other hand, memories fade in these cases.”
“From our standpoint, these cases tend to have shorter statute of limitations than a lot of other cases,” said Gause. Because some counties have halted civil service of court documents, one suggestion is the court allow an emergency order to offer service by certified mail, he said.
Berman & Simmons attorney James O’Connell, speaking for the litigation division of the Maine State Bar Association, said, “Our main theme is that the status quo is untenable. We need to design a system that is resilient. We believe that there is no return to normal. We’re probably going to be having on again off again shut-downs.”
“Our biggest need is access to jury trials,” said O’Connell. “The scheduling and conducting of a jury trial are what brings cases to resolution. The New Hampshire court system recently issued an order to use phone and videoconferencing as much as possible. We’d like to see that achieved.”
Judith Meyer, executive director of the Sun Journal, spoke to Mead about public access issues due to changes in court operations because of COVID-19.
“The press is concerned about press access and continued access when you come up with what the process is so the transparency of the courts is maintained in the video world the same as the real world,” Meyer said. “As a number of people have mentioned, technology has been a real hurdle. I would ask the court to keep in mind there is great public interest in proceedings and documents, particularly in criminal cases.”
Mead acknowledged that through an oversight, the press had been omitted from designation as a “stakeholder” for the day’s proceeding but clearly was a stakeholder.
Juliet Holmes-Smith, executive director of the Maine Volunteer Lawyers Project, said clear guidelines about courtroom protocols are needed in this new era.
“If you are a person who is vulnerable to COVID-19 and you don’t have a lawyer, there needs to be clarifications about accommodations and how to get them,” she said. “What’s distancing in courts going to look like? What are the PPE [personal protective equipment] requirements? We need clear guidelines that people without lawyers can look at and understand.”
Attorney Frank D’Alessandro of Pine Tree Legal said his organization is concerned about low-income people.
“Our point is low-income people should not be subject to COVID-19 because of the size of the docket,” said D’Alessandro. “We think procedures need to be in place so that people are not put in unnecessary risk.”
Animals are yet another issue.
Katie Hansberry, president of the Humane Association of the United States, said possession hearings in animal cruelty cases need to be expedited.
“Expediting those hearings is important because they include living evidence,” Hansberry said. “It’s difficult for animals who are in limbo as well as the organizations caring for them. There were about 175 animals in custody at the start of the quarantine.”
After more than 90 minutes of testimony, Mead concluded the discussion.
“You’ve given us an extraordinary look inside your professional lives and your concerns and challenges,” Mead said. “Some of it has been on our radar but a lot of it is unique.”
“It has been an exhausting eight weeks,” said Mead. “We are rebuilding what we do. We have some resources available to us. We have a good sense of our own resources. My vision is to see the courts back up and running as business as usual.”