Judge Samuel Chiara always feels a bit of anxiety before a jury trial starts in his Duchesne County courtroom.
He wants everything to move smoothly, he said, and for all the parties to feel like they had a fair experience.
But earlier this month, the stakes were even higher. Chiara presided over the first jury trial in Utah since the state’s Supreme Court halted all trials in mid-May because of concerns about the coronavirus.
Chiara said, for his trial, the 8th District Court took every precaution it could think of to stay in line with Centers for Disease Control and Prevention guidelines.
“I wasn’t too concerned with protecting the public because I felt we were complying with everything I’ve heard from the CDC,” the judge said in a recent interview. “There was mask-wearing. There were health screenings. There was temperature-taking. There was hand-washing and social distancing. We were able to keep people very spread out.”
On trial was Kristy Lee Whitchurch, who had been charged with murder and other counts for breaking into another woman’s home with a group of people and beating her to death.
Whitchurch was charged nearly two years ago, and like so many other defendants in Utah, her case stalled once the pandemic hit in March.
Chief Justice Matthew Durrant in May issued an order outlining color-coded “phases” that dictated what precautions had to be taken to address COVID-19.
Much of Utah has remained in the court’s “red phase,” where jury trials are not allowed.
But Duchesne County had moved to the “yellow phase” in August, a determination made after local officials could show that the rate of COVID-19 spread has been stable or decelerating for at least two weeks.
That meant Whitchurch’s trial was allowed to move forward, as long as strict guidelines were followed.
Chiara said the biggest adjustment he had to make involved jury selection. Before the pandemic, 60 or more prospective jurors would pack into his courtroom to answer questions and wait to see if they were selected.
This time, Chiara had potential jurors come in 10 at a time throughout the day, so they could spread out. Those who came to the courthouse had already answered a questionnaire about whether they could serve on a jury — including questions about whether they were at any higher risk if they contracted the coronavirus.
Chiara said prospective jurors deemed to be a high risk were asked if they wanted to serve on a jury anyway. About half checked the box saying they’d still be willing to serve, Chiara said.
“I didn’t want to be eliminating someone who had diabetes or eliminating someone who was a little bit older,” the judge said. “I didn’t want to be the one. I wanted them to self-elect.”
Chiara said some people reported they didn’t want to be on the jury because they’ve already missed too much work because of the pandemic, or because they already had travel plans. The judge said the court still had a good-sized jury pool, and eight members and two alternates were selected by early afternoon.
From there, everything was wiped down from the witness stand to the podium that attorneys used to ask questions, and all the players washed their hands before and after handling exhibits. The jurors were seated in the gallery instead of the jury box, and the public could watch the trial through a livestream, but not in person.
When it came to jury deliberations, Chiara said officials opened the neighboring courtroom so the jurors could spread out and stay more than 6 feet apart.
The trial went on for two weeks like this, before jurors ultimately returned a guilty verdict convicting Whitchurch of murder, aggravated assault and aggravated burglary.
Chiara said after the trial, he asked jurors if there are ways the courts could have made them feel safer.
“They all felt that they had been taken care of and that it was safe,” he said. “They didn’t have any suggestions.”
Chiara said he felt this new protocol could be easily replicated, and had planned to do so in trials in late November and into December. But with coronavirus cases rising across the state, Duchesne County is on the cusp of moving back into the “red phase” — where, under the current order, jury trials can’t continue. He anticipates those trials will be delayed unless cases go down or the courts find another solution.
Court officials estimate that as of mid-October, there’s a logjam of 165 trials statewide due to the pandemic.
Courts spokesperson Geoff Fattah said the Utah Judicial Council is now meeting weekly to assess whether certain courts can move into less-restrictive settings, but noted that much of the state is experiencing a “back slide” and is moving back into the red phase. As of Thursday, 21 of Utah’s 29 counties was in the highest restriction levels set by Gov. Gary Herbert.
Utah court officials are still working on a solution for holding trials when case levels are high. Other states, like Texas, have experimented with jury trials through videoconferencing for lower-level cases. But Fattah said there’s been little appetite from Utah attorneys to try a trial-by-Zoom here.
“We do have the technological ability to hold a virtual jury trial,” he said. “But we have received feedback from counsel [with concerns] about the right to confront witnesses and what that looks like in a virtual setting, the ability to read a jury’s reaction, and the ability of the jury to gauge the credibility of witness testimony via video.”
Chiara said he hopes that the courts can figure out a safe way for trials to move forward, even during a “red phase.” He worries that if jury trials don’t resume soon, it could take years to work through the backlog, which is continuing to grow week after week.
“It’s just of the utmost importance that we start holding jury trials again,” the judge said. “There are people whose interests are being pushed back in time. Whether that’s a civil case or a criminal case, they want to have their case resolved.”