A Shut-and-Open Case

Rhode Island’s road back to trial by jury

by Loughlin Neuert

Illustration by Joyce Tullis

published October 2, 2020

Bail in Rhode Island for a misdemeanor starts at $100 in cash, and rises quickly from there. The lowest levels of felonies go for $500 cash. That’s the floor—for repeat offenders, the numbers can quickly pile up. This time last year 650 people were awaiting their trial in jail, many because they were unable to pay bail. If you don’t have a car, and live in a neighborhood underserved by RIPTA, a Lyft or Uber runs for about $15 each way. 

One part of the weight of the prison industrial complex can be measured in years and dollars. When people are accused of a crime and go to trial, win or lose, they are compelled by the state to surrender their autonomy to months of stress, worry, and heartache. The process is expensive; and if people cannot afford legal counsel, they are funnelled towards legal aid that is much less effective. At every phase of a trial, people have an immense obligation to pay for fines, fees, and phone calls. 

Racist and classist institutions funnel that burden disproportionately onto people of color and low-income people. The wealthy aren’t faced with a choice between groceries and legal aid, nor is their ability to pay fines or fees destroyed by a medical emergency.” Discrepancies in policing and prosecution shift charges disproportionately onto people of color. Punishments compound, quite literally, over years. Charges build onto charges, fines rack up late fees. Years of potential prison time, decades, hang over people out on parole. This summer, the stakes have gotten even bigger. Jails and prisons are dangerous spreading grounds for COVID-19, whose impacts are also enmeshed within the country’s racist and classist history of unequal health outcomes. Inmates in jails and prisons aren’t getting stimulus checks, adding insult to the financial injury of mass firings, evictions, fines, and court fees.

One small arrow traditionally remains in the quivers of individuals facing a system that is so often stacked against them: everybody has a right to a jury trial, and nobody can be compelled to wait for it indefinitely. 

But the pandemic has changed access to legal recourse, too. Nobody in Rhode Island has had a jury trial since March 16, the day that orders came down to move to only ‘emergency’ trials. The courthouse hasn’t sat empty, though. Bench trials, where the judge acts as jury, returned in Rhode Island over the summer—hundreds of evictions, for example, which are almost always bench trials, were argued in the last two months. No juries, however, were selected over the entire summer. If courts continue operating under strict social distancing parameters, jury trials will remain out of the question until a vaccine is ready—which is to say, indefinitely. Trials that were ready to go back in March have been sitting on judicial calendars for months. In April and May, as the Department of Corrections scrambled to get monitors and video conferencing software, communication between defendants and their lawyers was largely broken. Even now it isn’t always easy or reliable for legal counsel to speak to their clients, which makes it difficult to build a robust legal defense strategy. 

If a state court began granting COVIDrelated motions to dismiss cases under the ‘speedy trial’ section of the 6th amendment, they would likely be forced to grant them to thousands of people, preventing thousands of trials. “Judges don’t like to just dismiss trials,” said Vermont attorney Lisa Shelkrot in an interview with the College Hill Independent,  “nobody is ready to start granting COVIDrelated speedy trial motions yet.” And it’s not quite obvious when they would start, as precedent is murky at best about what constitutes an ‘unspeedy trial.’

That doesn’t mean that the courts aren’t worried about potential violations to the 6th amendment. Some jurisdictions in California, already facing a huge backlog of both civil and criminal trials, moved to begin masked trials late this summer, and other states across the country are following suit. However, Rhode Island has taken a more cautious approach when it comes to juries, building over months toward a plan of action that should see trials by jury unrelated to speedy trial objections return to the docket by January 1, 2021. They have hit the ground running in the remote arena, working to relieve the pressure and backlogs as much as possible through teleconferencing.

As summer turns to fall, and Coronavirus cases begin to rise again in Rhode Island, the eyes of the legal world—private attorneys, judges, prosecutors, and public defenders—are turned toward the upcoming announcement, expected some time next week, about the state's official courtroom jury-trial protocols for the foreseeable future. Speaking over the phone with Marisa Brown, the administrator of the Superior Court of Rhode Island, the Indy gathered the outlines of what jury trials will look like in the fall. The modifications largely come down to physical changes within the courthouse, along with general scheduling changes, explained Brown. “Our Facilities Department had to find a lot of plexiglass… and it wasn’t so easy to come by a couple months ago,” she explained. “Then, of course, there’s the problem of acoustics with that plexiglass, so we had to find the right audio equipment… which was also hard to do.” 

Brown’s descriptions were reminiscent of  COVIDproofing whack-a-mole: solving one problem engendered a host of new ones. Jury selection can meet social distancing rules as long as they use a second courtroom for spillover. But asking potential jurors to sit in other rooms for selection means needing to find another room for said jurors to take breaks and deliberate in. Plexiglass begs audio equipment. Dividing the jury into multiple rooms begs visual equipment. Shortening jury selection to half-days permits jurors to avoid coming and going too much from outside the building, but it might also mean extending the number of days needed to select a full jury, which increases the overall likelihood of someone showing up sick at some point. 

The rough picture of the future is this: potential jurors will be asked to come in for shorter days, in socially-distanced spaces. Everyone will wear face coverings. The judiciary has expanded their shuttling system to make sure that jurors can continue to park remotely and be ferried to the courthouse without overcrowding the buses. 

Some of the protocol has already been put to use this summer, for hearings (including eviction-related hearings) and for the state’s Grand Jury, which decides whether or not the state has enough grounds to charge an individual which reconvened in May. Any visitor to the courthouse is asked for a symptom, contact, and travel check at the front door by courthouse security. They also must be there exclusively on official courthouse business. As of yet, there is no proactive testing, temperature screening, or plans to institute those protocols. Brown pointed to success from this summer's hearings and Grand Jury deliberations as evidence of the efficacy of their system.  “When we’ve had a symptomatic person, or a positive test this summer,” she said, “we’ve been able to contain it because we have so few people and we can contact trace them, and everyone has been compliant and good at wearing their face coverings.” Even with the best case scenario, using more courtrooms for fewer trials makes it harder to keep up with the constant inflow of trials, nevermind clearing out the backlog. 

If this system is able to prevent particularly egregious wait times for some people, it must also accept the fact that everyone will have to wait longer. And that waiting doesn’t come easy: Rhode island is one of eight states with no exceptions to at-will employment, a court case or an active charge can often be grounds for firing. Charges, even before they are settled, can prevent access to jobs or housing. 

The Rhode Island Judiciary’s expenditure reports from the CARES Act back up the efforts that Brown described. Monthly payments totaling $295,255.50 to Ambient Sound Inc. of Warwick belie the build up of audiovisual equipment, and $53,697.12 toward various janitorial services underscore the focus on cleanliness. In the mess of expenditures that the portal presents, the Indy was pleased to find the Judiciary’s tab, which represents expenditures for all six courts operating in Rhode Island, well organized and easy to make sense of. Employees at the courthouse seem to be operating faithfully and transparently with the goal of running as clean and safe of a courthouse as possible. What they have accomplished is no small task. 

Still, any potential grain of sand in this machine is nerve-wracking for its architects. When asked about the greatest challenge to the system, Brown pointed to the inevitability of flu season. “If one of the jurors is symptomatic or may have symptoms that could be COVID-19, you have to err on the side of caution and that person has to be tested,” said Brown. “And the sitting judge would have to send the other jurors home while we wait for test results.”

Concerns were different for Collin Geiselman of the Public Defender’s office. “If I’m cross-examining a police officer, say, about a potential fourth or fifth amendment violation, how does a facemask impact credibility?” he asked, pointing out that “lawyers on all sides, prosecutors and defense attorneys, have been trained for years to speak persuasively to a jury. That jury traditionally is sitting together.” Without the ability to read the juries’ faces, whether because they are wearing coverings or because they are scattered across multiple rooms, the job of actually conducting a trial gets much more difficult. How can defendants be sure that their face coverings won’t impact the perception of their credibility? 

“People don’t really know this, since it isn’t the part that they show on TV, but one of the most important moments in a trial comes just before the jury deliberates, when the judge gives the jury instructions,” added Geiselman, noting that the process is so central that it can often take up to forty minutes. “The judge will usually tell the jury, ‘Listen, there’s no magic formula to determine credibility, but you’ve been doing it all your life. You judge credibility every day when you interact with new people, you read it in people’s faces and in their voices.’” It’s a very new phenomenon for people to try and gauge trust from faces and voices obscured by masks. 

“The way the trials are being handled has been turned on its head, and it's not just a question of scheduling,” said Geiselman. Months-long interruptions in client-lawyer communication make it hard to bring trials in front of a jury, and Geiselman added that, “A lot of us are certainly waiting to see what the actual plan will be before moving ahead.”

     Shelcrot, a private defense attorney, raised further concerns about the challenges of COVID-19 restrictions on the conduct of a trial. “In a criminal trial, you are normally sitting next to your client and communicating back and forth. Figuring out a way to communicate with your client that is both distanced and confidential… is not too obvious.” And when it comes to objections and sidebars, the puzzle gets only more complicated. “Lawyers might need to communicate with the judge completely out of earshot of the jurors for various reasons,” Shelcrot explained. “Normally we do that by getting up close to them and whispering, but we can’t do that anymore.” 

Normally, the court also works hard to make sure that a defendant is never seen in active custody by the jury; for example, in handcuffs. It's also imperative that the jury never knows if a client’s lawyer is a public defender. Witnessing either of these can prejudice a jury against a defendant. But lines of movement in the building are complicated by jury spillover, and Geiselman and Shelcrot both fear that COVID–proofing the trial will risk compromising their clients’ protection from the eyes of the jury. The jury won’t all be in one room, so the tactics the court normally uses will have to be adapted. Any slip up will be paid for by defendants in the currency of credibility. 

The situation presents itself as a bit of a hesitant standoff. Both defendants and their advocates, along with the state and its prosecutors, have a vested interest in getting jury trials off the ground quickly and in keeping them safe. Defense attorneys, though, are concerned about the exact way that the texture of a COVID containment plan will impact their litigation, especially as the process of making guidelines has come mainly from the court and judges themselves. 

For cases that carry the weight of punishment in time and money even when there are only implications on parole, erring too far on one side opens the door for catastrophe. Too slow and the court will have countless (potential) 6th amendment violations on their hands; too constricted and they risk hamstringing lawyers’ abilities to do their jobs, opening the door to a slew of mistrials. And, if they go too fast or too loose, they risk a major Coronavirus outbreak, all as we hurdle towards flu season. Even if all parties do everything right, there is no telling whether the courts can completely prevent the virus from making inroads. As the countable impacts of delays build up, so too do uncountable ones: energy, missed opportunities, and worry. Defendants have been held in limbo by a disease, and  nobody can give back months of stress and unfreedom to those whose trials have been put on the backburner. Our criminal justice system cannot provide that kind of justice.

The pandemic necessitated a shift in the rules at the very center of America’s rule-making and rule-arbitration. For those who live by precedent, ‘unprecedented’ times are a major hurdle, and the outcomes of such times will affect the thousands of lives in Rhode Island that await the next cycle ofvery differenttrials by jury. Civil servants at the courthouse are doing their best to prepare a system that works, but the process of ironing out the kinks has very real implicationsyears of potential prison time and thousands of potential dollars in finesfor Rhode Islanders. 


LOUGHLIN NEUERT B’22 wants, but cannot handle, the truth.