Courtroom Procedures That Are Dramatically Different During The Pandemic

Transcription:

Brendan Lupetin:
Can you tell me what the voir dire selection process was like? Was there anything unusual about it or different in light of the pandemic?

Peter Pentony:
Oh, it was unusual and everyone was masked the whole time. All the panel members, all lawyers, the judge, clerk, court security, everyone was masked the whole time. The judge had … let me back up. The judge had conducted a very thorough pre-trial hearing before the trial, a week before the trial. Over the course of two days, sorting through every conceivable issue so that when we got to trial, we were streamlined. So he ruled on almost all exhibits. He ruled on almost all jury instructions, any conceivable issue was already sorted out, because there wasn’t going to be much place for sidebars. We couldn’t send the jury out, jury stayed in forum. So he took care of that. Then one of the things that he did was require us to provide all of our voir dire questions ahead of time, which is not my normal experience.

Peter Pentony:
Usually you have some leeway to stand up there and, work your way through the question. And what he did was trim quite a bit. I lost a lot of things that I normally would have been able to ask about. Another thing that he did was require that our questions be directed to the panel at large. And then if any particular person had an issue, we could talk to them directly. And what that meant was I couldn’t single out a particular person who was not participating to ask them questions. And that combined with the masks made it really hard to gauge where people were as I was talking about different concepts that are important to us when we’re trying to do jury selection. I also found, and maybe this was your experience as well, that the mask was a psychological barrier to participation.

Peter Pentony:
It was a lot easier, it seemed like, for people to sit back there and not say anything, because they had that mask there, it just was really hard to get people to talk. And even when we were down to the point where we were making our strikes, there were some people on the panel who hadn’t said 30 words. And because of the judges restrictions on voir dire, I hadn’t been able to do the normal thing. You know: “Mrs. Jones. You haven’t said a lot. I understand it’s nerve wracking to be here in front of all these people. How do you feel about all this?”  I just, I couldn’t have done that. So we were nervous in jury selection. Just felt like we hadn’t been able to get a very good read on a lot of the folks.

Brendan Lupetin:
Going into the trial versus coming out on the other end of it. Was there anything about, you know, the way you were imagining what a pandemic trial would be like that was vastly different than you anticipated; and conversely, was there anything that was exactly like what you thought it would be like?  Or imagined it would be like?

Peter Pentony:
The things that I flagged as being difficult tended to be difficult. As I mentioned, you know, being able to hear when everyone’s mask was on, I expected that to be a challenge, and it was a challenge. What I didn’t count on Brandon, and maybe you experienced this some too, was the inability to read the jury while the trial was going on because of the masks. And because they were spread out, it was really hard to take a quick glance. For example, during cross-examination to see to what extent they responded to a particular point. I try to keep a lot of humanity during trial and I normally have a pretty good sense of humor, but I try to limit the jokes. You know, it just doesn’t seem like the right place. We’re talking about serious things, but every once in a while, something’s funny. And you want to see if they’re laughing or not. I couldn’t tell at all. It was a, you know, because we were so far away from them, you couldn’t even see their eyes very well to know whether their eyebrows were up or, you know, they were mad about things about the best he could do is if, you know, someone was hunched up, you could figure they weren’t responding to that very well. But beyond that, it was really hard to tell what they were thinking.

Brendan Lupetin:
Yeah, absolutely. That was my experience as well. However, I feel like I’ve tried so many cases at this point and I’ve come to realize that I have no clue what any of the jurors facial expressions or body language means. My only indicator typically of, if there was something significant, and I would at least was able to do this during our trial is if people are writing. And it’s, you know, if you’re seeing them writing down your economic numbers or things of that nature, you’d like to take that as a positive sign, or maybe it’s just a person that writes everything down, but that was pretty much my sole gauge, but you’re right. Otherwise it, if it was already difficult to read jurors, it’s that much harder now with the masks on.