Jury Duty During a Pandemic: How Safe Is It?

When I recently received a jury summons in the mail, it brought with it more than the usual onset of angst. It included a flyer titled “Attention Prospective Jurors,” outlining COVID protections the courts had put in place.

Some of the bullet points didn’t offer a lot of solace. “With current social distancing rules,” the flyer read, “the assembly room will only seat a maximum of 40 to 50 prospective jurors.” Given the current guidelines of social pods not exceeding 12 people, this made me nervous. So, I decided to explore COVID protections put in place by Superior Courts around the Bay Area. I reached out to courts in San Francisco, San Mateo, Alameda,  Santa Clara and Marin counties.

When the coronavirus hit and lockdowns began in mid-March, jury trials paused. The Judicial Council of California, the court system’s policymaking body, created a pandemic working group. In June, it issued a 75-page resource guide, a set of best practices or recommendations. According to a spokesperson for the JCC, the working group used information from state, local and national health officials — including the federal Occupational Safety and Health Administration, Centers for Disease Control and Prevention, and the National Center for State Courts. The council also consulted an industrial hygienist regarding physical layout and social distancing guidelines. The guide is a working document, and the spokesperson said version 2.0 is expected sometime this fall.

Nonetheless, I wanted to visit a courthouse and see the coronavirus protections for myself. So, I called up Ken Garcia, the San Francisco Superior Court’s communications director, who agreed to show me around the Hall of Justice at 850 Bryant St. I’d been in a jury pool in this building before, and was familiar with the scene, pre-pandemic.

The Courthouse

Courthouses are normally really busy places, Garcia said, hallways filled “with lawyers, police officers, sheriff’s deputies, the public, jurors, people coming to court to do business.”

But on the day I visited, the halls were strangely empty and echoed with the occasional chamber door closing, even though an electronic calendar indicated dozens of hearings, most of them done in-person, while other cases are being conducted online.

“We are setting up a remote operation, essentially,” explained Garcia, who said that’s presented some IT challenges. “This building is so old, it’s not wired properly for any kind  of new technology.” Nonetheless, the court at 850 Bryant has adapted to hearings via  Zoom or YouTube channel.

We peeked inside a couple of courtrooms. The witness stand had plexiglass around it on three sides, separating the judge and anyone in front of the stand from the witness. The jury box and the entire gallery had laminated numbers taped to some of the chairs. The jury had taken over the gallery, socially distanced among the rows. “So, no more than 23 people can be in the courtroom during a trial. And that’s based on the spacing that’s been measured,” Garcia told me, at least 6 feet. Everyone has to wear masks in the courthouse, over their noses, and bottles of hand sanitizer dot the courtrooms. If the public wants to see a criminal trial, he told me, the court can set up a livestream feed.

Counties have taken various approaches to vetting their prospective jury pools. San Mateo County screens people in tents outside the courthouse. Alameda County screens people online for hardship, but then does a COVID health screening and a check-in inside the courthouse. San Francisco Superior Court sends out an online survey, with questions to help screen people for vulnerability to the coronavirus, with questions about health concerns, age, employment — if you’re an essential employee. Garcia said the pandemic has created a case backlog but, “Justice doesn’t stop. It’s just there’s been a lag time. All the cases that were going to go to court at the beginning of March are still going to go to court.” He did add that more litigants are choosing to settle out of court.

The Juror

I wanted to hear from someone who had served on a jury since the pandemic began, and I found Kyle Barlow. The 32 year-old computational biologist recently served on a monthlong criminal trial in San Francisco.

Given the long exposure involved, he decided to take extra precautions. “I made the personal decision just to shave the facial hair I had. I could wear a KN95 [mask] and just maybe have a little bit more protection for myself during the trial.”

Barlow says some interesting moments occurred when witnesses wore masks with clear plastic over their mouths, so the jury could see their expressions. He said they were “moderately effective, but they tended to fog up when people were talking.”

Would he serve again? “Yeah,” says Barlow.“I think even in these strange times, I definitely would do it again. And I kind of came away with that feeling like enough precautions had been taken, and that it was worth it just to make sure that our justice system is still working.”

The Experts

Even with all the precautions in place, jury duty doesn’t come with a guarantee against COVID-19.

“People have to understand that it’s mitigation and it’s not elimination,” says infectious diseases specialist Dr. John Swartzberg, who served as a scientific adviser for the American Board of Trial Advocates’ guide to conducting civil trials during the pandemic. He said the courts are challenged by a lack of funds, but “from everything I can tell, I think they’ve done a good job with what they have.”

Would Swartzberg feel comfortable serving on a jury if called? He says he would serve, but since he is older, he would still feel a bit nervous. He’d want to make sure he had at least 6 feet distance from others, that everyone wore masks, used sanitizer, and one more thing: air exchange. He’d want to know how long it takes to filter and fully refresh all the air in the courtroom. “A lot of the older buildings have like two air exchanges per hour. Whereas in a hospital room, you’d be held to a standard anywhere between eight and 12 exchanges an hour.”

Dr. Dean Winslow, professor of medicine and specialist in infectious diseases at Stanford, agrees. He says it takes a very efficient HVAC system to filter out small particle aerosols that can remain suspended “for up to several hours.” For him, “the most important thing would be limiting even large rooms to no more than about 25 people, even in a fairly large room and requiring, very, very strictly that people wear face masks or appropriate face coverings during that time.” And, he, too, would want to see a high rate of air exchange.  

Although the courthouses are mostly older buildings, a quick survey reveals that some (but not all) have upgraded filtration systems, and officials at several of the courthouses in Bay Area counties told me they have been running their air filtration system intakes at 100%.

A spokesman for the Marin County Superior Court said the air exchange rate in the county Superior Court rooms is three-four times per hour. However, the recent fires complicated opening filtration system dampers for maximum air intake, so the courts brought in “air scrubbers,” loud, industrial machines, to clean the inside air.

The Judge

Moving some trial elements online has had some benefits, according to Judge Tara Desautels, presiding judge for the Alameda County Superior Court. With some witnesses testifying via Zoom or other remote means, she says, “Jurors have, in fact, said that they enjoy that opportunity because it enables them to be really upfront and close to the witness as compared to in a pre-COVID jury setting where you would have the 12 jurors on the side of the room in the jury box, depending on where your seat is and your vision abilities.” She says, in addition to the standard mask requirements and distancing, each juror now has their own separate table in deliberation, with personal copies of jury instructions and evidence.

I asked Desautels if fewer people were showing up to serve on juries, or if more were trying to get out of serving. “One of the reasons why we have had to create overflow rooms is because we have had more than our normal, normally expected turnout rate,” she said. “We were very afraid that we would receive no jurors, that no one would be willing to come to our courthouses when we began our jury selection, and we have been very pleasantly surprised.”

Okay, back to one of the doctors. I had to ask: what about going to the bathroom in a shared facility with strangers? Is that a problem? “There have been no outbreaks that I’m aware of related to public restrooms or flushing toilets,” Winslow said. “It’s more of a theoretical risk.”