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Trials in the Time of COVID-19 – When Will We Ever Try Cases Again?

As COVID-19 cases continue to escalate in the State, concerns about the safety of jurors and others involved in trials and other judicial activities continues. COVID-19 has brought challenges and dangers to everyone, and, unfortunately, the courtroom is not spared from these realities. When jurors are to be summoned in the future, the Court is to provide them with information on the steps taken to protect them from COVID-19.

On December 23, 2020, Chief Justice Harold D. Melton of the Supreme Court of Georgia issued Order Modifying Ninth Order Extending Declaration of Statewide Judicial Emergency. There, Chief Justice Melton stated, “After consulting with the Judicial Council of Georgia and other judicial partners, recognizing again that most in-court proceedings compel the attendance of various individuals rather than allowing them to decide how best to protect their own health and that jury trials require the participation of the most individuals, and further recognizing that the novel corona virus continues to spread dangerously in Georgia, it is determined that” this Order “is hereby modified to amend Section 1(B), related to jury trials, as follows: In response to the recent rapid escalation of COVID-19 cases, and to protect the health and safety of the public and court personnel while continuing to allow access to essential judicial functions, all jury trials not already in progress, including in-person proceedings to select jurors, are prohibited; this suspension of in-person jury trial proceedings is anticipated to continue until at least February. Jury trials in progress as of the date of this order may continue to conclusion at the discretion of the assigned judge. This order does not preclude the issuance of juror summonses.” Additionally, Courts were encouraged to use remote proceedings an other technological alternatives. When in-person proceedings do occur, such proceedings “must be conducted in full compliance with public health guidance and other requirements.”

This modification extended the prohibition of jury trials. Previously, the December 9, 2020, Ninth Order Extending Declaration of Statewide Judicial Emergency extended the emergency until January 8, 2021.

The prohibition of all jury trials ended on October 10, 2020.

Even with the need for compliance to reduce the spread of COVID-19 and its consequences, the rights of people to meaningfully access the Courts persists. It is of the utmost importance that people get their day in Court in a timely way. The previous “blanket prohibition of jury trials” has been recognized as something that cannot continue “even though the pandemic continues.” Key in this assessment is the fact that as a result of the prohibition of trials, “trial courts have accumulated many cases that are awaiting trial.”

This is unsurprising given the expectation that the lack of trials from March 2020 to January 2021 has created a backlog.

The timing of grand jury hearings and jury trials will begin about a month after the prohibition is lifted in order to provide time for jury notices to be sent out. The number of backlogged cases combined with the slower speed in which these cases will naturally proceed with COVID-19 safety procedures, will require prosecutors to priorities those unindicted and untried cases.

For now, the statutory deadlines for indictments and jury trials remain suspended and tolled.

And, of course, the must be a recognition that as COVID-19 cases threaten Georgia with rising cases, there may be a future prohibition of trials.

The July 10, 2020 extension of the order “reimposed all deadlines and other time schedules and filing requirements . . . that are imposed on litigants by statutes, rules, regulations, or court orders in civil and criminal cases and administrative actions and that had been suspended, tolled, extended, or otherwise relieved by the March 14, 2020 Order Declaring Statewide Judicial Emergency.”

There are several important exceptions. Deadlines for jury trial proceedings, including statutory speedy trial demands and grand jury proceedings are tolled. This does not apply to non-jury (bench trials). Key aspects of these timing procedures, in part, are listed below:

  • “In cases that were pending before the March 14 Order, litigants were provided the same amount of time to file or act after July 14 that they had as of March 14.”

  • “In cases filed between March 14 and July 13, 2020, the time for deadlines began to run on July 14.”

  • “In cases filed on or after July 14, 2020, litigants must comply with the normal deadlines applicable to the case.”

  • “If the reimposed deadline falls on a weekend or legal holiday, the deadline will as normal be the next business day.”

  • “The 122 days between March 14 and July 14, 2020, or any portion of that period in which a statute of limitation would have run, shall be excluded from the calculation of that statute of limitation.”

  • “Litigants may apply in the normal way for extensions of reimposed deadlines for good cause shown and courts should be generous in granting extensions particularly when based upon health concerns, economic hardship, or lack of childcare.”

  • “Recognizing the substantial backlog of pending cases, deadlines imposed on courts shall remain suspended and tolled. All courts should nevertheless work diligently to clear the backlog and to comply with usual deadlines and timetables to the extent safe and practicable.”

In regard to the encouragement of the use of technology and remote proceedings, the Court elaborated with the following:

  • “Courts may compel the participation of litigants, lawyers, witnesses, and other essential personnel in remote judicial proceedings, where allowed by court rules (including emergency amendments thereto). Such proceedings, however, must be consistent with public health guidance, must not impose undue burdens on participants, and must not be prohibited by the requirements of the United States or Georgia Constitutions or applicable statutes or court rules.”

  • “Courts must ensure the public’s right of access to judicial proceedings and in all criminal cases, unless affirmatively waived in the record, a criminal defendant’s rights to confrontation and an open courtroom.”

  • “No court may compel the attendance of any person for a court proceeding or the court facility in which it is to be held is not in compliance with this order, including in particular larger calendar calls. Courts are also prohibited from compelling in-person participation in any court-imposed alternative dispute resolution session that is to be conducted in a manner inconsistent with applicable public health guidelines.

Finally, notice “will be provided as to the expected termination of the Order as extended and modified at least one week in advance to allow courts to plan for the transition to fuller operations.”

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