Many lawyers have focused on a defendant’s right to a speedy trial given the moratorium on jury trials amidst the COVID‑19 pandemic. This, of course, makes sense as we consider our clients in custody or those on bond awaiting their day in court so that their lives may regain a semblance of normalcy. Clients behind bars are essentially sitting ducks during the spread of this potentially deadly disease and clients on bond often must subject themselves to risk of exposure while appearing in court or attending pre‑trial supervision appointments.
While the right to a speedy trial is a critical and ever important one, another right deserves consideration: the right to a fair trial before a jury of one’s peers. As the supreme court of Texas has made special exceptions to the suspension of jury trials and as some small counties are conducting trial business as usual, the impact of COVID‑19 on the venire panel cannot be disregarded. Like so many things, the populations most effected by the spread of the virus are minorities, which are already woefully absent from most jury panels.
Empaneling a jury of the defendant’s peers is not a novel problem. Nearly any defense attorney can tell you that you might see some people of color on a jury panel, but it won’t be very often. In trial preparation, we must always be cognizant of how the facts and circumstances of the case will be perceived through the lens of a jury that we know will more than likely be older, richer, and whiter than our clients.
A jury of one’s “peers” is one that consists of members that look like the defendant or, at least, represents the makeup of the community in which the trial is held. This is critically important because diversity in the jury panel allows for people with different ideas and experiences to evaluate the evidence for proof beyond a reasonable doubt. In places where the turnout of potential jurors is already low and trends wealthy and white, achieving a representative jury on a good day can be a monumental task. In the COVID‑19 era, that monumental task becomes Herculean.
The heightened impact of COVID‑19 on the makeup of jury panels is twofold: (1) the virus’ impacts are greater in minority communities; and (2) the economic challenges that exist due to the virus create barriers to participation for some citizens, but not others.
To the first point, people who identify as Hispanic or Latino make up an estimated 39.7% of the population of Texas and around 39.9% of the diagnosed COVID‑19 cases. However, this demographic group represents more than half (56.1%) of COVID‑19 deaths.1 With more than 16,000 Texans dead from the virus, this number represents several thousands of potential jurors of color lost without factoring in the deaths of potential jurors from other groups of color. The collateral consequences of this imbalance are important too, as citizens who are responsible for the care of sick relatives may not be available to secure alternate care for their loved ones and, more importantly, those caring for sick relatives pose a risk to the whole panel, courthouse staff, judges, and counsel due to their exposure to the virus. To the second point, citizens that would likely bring the sought‑after diversity to the venire are more unavailable than their wealthier and older counterparts.2 This characterization goes beyond race and limits the number of citizens available for jury duty within different socioeconomic strata. 44% of all workers aged 18 to 64 are considered low‑wage workers. Black and Hispanic/Latino workers are overrepresented in this population, and low‑wage workers are also disproportionately female. By definition, these workers are in a precarious financial situation than mid‑ or high‑wage workers. Many workers in this type of category are the primary breadwinners in their homes and the loss of wages to participate in jury duty would be catastrophic.
The COVID‑19 crisis has exacerbated the risks associated with being a low‑wage worker. The number of people who have lost their jobs have skyrocketed at the same time many low‑wage workers have been deemed essential. Parents with children are now trying to juggle virtual learning and childcare whilst also trying harder than ever to figure out how to pay the bills. They cannot afford to miss a single day that is not moving toward that end.
These issues are only a few of the many intersectional ways this crisis has impacted the makeup of jury pools as well as our community at large.
So, what can we do?
Of course, the entire system needs work. It is typical in some counties for somewhere around 70% of potential jurors summoned to fail to appear for jury service.3 One of the easiest ways to increase the diversity of the jury pool is to increase the size of the pool itself and gain attendance from potential jurors from underrepresented populations. On a practical level, there are things that defense attorneys can do in both these times and in times where there is no pandemic.
The first thing to remember is to always make note of how the jurisdiction picks juries. Each county is different and, chances are, that each court in each county is a little different, too. The way Harris county numbers jurors for selection and the way Hays county numbers jurors is vastly different and relying on what you know from one county or another can result in favorable jurors ending up on the chopping block rather than in the jury box. In my practice, we make an effort to go by the court where trial is going to be held to get a seating chart and speak to the staff about how the particular judge goes about picking a jury. If an in‑ person visit is not available, we try to reach out to the staff via phone or email or will try to find local counsel to speak with and gather information on the procedure.
The next tool that attorneys can use is the jury shuffle. Often when picking a jury, there are people of color there, though they are notably underrepresented in the pool, and often are seated in unfavorable positions. A shuffle can give a defendant a chance at getting someone who looks like them or shares similar life experiences.
Third, lawyers can add an argument about a defendant having the right to a jury of the defendant’s peers to their motions for continuance. Many defense attorneys have been filing motions to continue on the basis of the pandemic’s effect on a defendant’s ability to have a fair trial. Defense counsel should, however, make sure to note these demographic challenges in addition to the concerns regarding safety, attorney‑client communications, evidentiary challenges, etc.
Finally, counsel should always remember that the characteristics that result in a jury that more closely resembles the defendant are intersectional. This means that there are often multiple things to look for in a juror that will allow for them to more closely relate to your client or be representative of the community as a whole. If there are no potential jurors of the same race on the panel, then root out those of similar socioeconomic status or life experience. While the pandemic rages on, it is obviously not safe to gather a large group of potential jurors right now and trials are still suspended until the infection rates are more under control. We can only hope that once it is deemed safe to hold trials again, many of these exacerbating factors will be alleviated and our clients can all be on the receiving end of the true justice they deserve.
- Texas Health and Human Services. (2021). Texas COVID-19 Data. Available at: https://dshs.texas.gov/coronavirus/additionaldata.aspx (accessed Oct. 8, 2020) (updated regularly).
- Nicole Bateman, Martha Ross. (2019). Meet the Low-Wage Workforce. Metropolitan Policy Program at Bookings. Available at: https://www.brookings.edu/wp‑content/uploads/2019/11/201911_Brookings‑Metro_low‑wage‑workforce_Ross‑Bateman.pdf#page=9 (accessed Oct. 8, 2020).
- Samantha Ketterer. (2020). Battling the jury duty problem, where fewer than 1 in 4 show up. Houston Chronicle. Available at: https://www.houstonchronicle.com/news/houston‑texas/houston/article/Battling‑the‑jury‑duty‑problem‑where‑fewer‑than‑15010187.php?‑converted=1 (accessed Oct. 9, 2020).