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Video – Attorney Spencer Freeman Comments On How Covid-19 Restrictions Caused Pierce County Courts To Rethink Jury Procedures. Was It Unconstitutional?

Video – Attorney Spencer Freeman Comments On How Covid-19 Restrictions Caused Pierce County Courts To Rethink Jury Procedures. Was It Unconstitutional?

Ray Hrdlicka – Host – Attorneys.Media

“Hi, this is Ray Hrdlicka, and we’re sitting with Spencer Freeman, criminal attorney in Pierce County — actually, criminal and civil — excuse me, Spencer, attorney in Pierce County, Washington, and all the other adjacent counties in the Puget Sound. So today, let’s talk about how COVID-19 is affecting the justice system and specifically about how the justice system is planning to bring back trials. The article I’m specifically referring to is how they’re going to pick a jury and what they’re planning to do with it. Because the article says that they have to go somewhere else and set up a completely new facility to be able to pick a jury, because if we’re going to be social distancing, that where you could have a courtroom packed with 250 jurors in the jury pool, now you’ve only got 25. So they have to go somewhere else. So obviously, you’re in the know, you’re in the system and working there every day. So tell me what you’ve heard and what are the plans for that?”

Spencer Freeman – Criminal Defense Attorney – Pierce County, WA

“Well, I think that the biggest thing right now is that there’s no set plan, and that’s of great concern.”

Ray Hrdlicka – Host – Attorneys.Media

“I can understand that.”

Spencer Freeman – Criminal Defense Attorney – Pierce County, WA

“ Yeah, but, you know, the Superior Court and the District Court, what they’re looking at, is they’re exploring those things that are problems that need to be dealt with. And that first one that you said was, you know, you’ve got 250 jurors. And what’s really meant by that is there’s a jury room in the Pierce County Courthouse, that if you get summoned for jury duty, you come in and that’s the room you go to. And you get processed in that room, and you essentially wait in that room until your number is called to go sit on a voir dire panel. And that room holds 250 people. And if we’re going to social distance, it can’t, it will hold 25 people. So there’s a question about what to do. And the article talks about there’s some spaces throughout the city that may present enough room. They are not necessarily close to the city courthouse, and so there’s a lot of concerns.

But I will tell you, from a litigator standpoint, having access to a larger pool of people that could potentially be a part of your jury, is super, super important. The fact that there is a potential that these numbers could be limited, is certainly concerning to any litigant. And the courts are sensitive to this, they understand this. But if I have a very serious trial and I’ve done a trial with serious sex crimes, you’re going to have an initial jury panel of about 75 people, because there’s going to be a large group of those people that simply can’t sit on that case. They can’t be unbiased and they just can’t handle sitting on that case. So you’ve got to have a larger group of people to handle that. And if you start with a smaller group of people, there’s going to be concerns about whether or not you can get a fair trial as a litigant.”

Ray Hrdlicka – Host – Attorneys.Media

“Interesting. It almost sounds like it is a potential reason down the road for somebody to declare a mistrial with a jury situation.”

Spencer Freeman – Criminal Defense Attorney – Pierce County, WA

“You know, sure, yeah. I think that that’s potential depending on how these problems are addressed. And there’s also other interesting problems. Like, when you are, as a trial attorney, and you’re in there picking a jury, it’s a rather intimate setting, historically. You’ve got a lot of people in a smallish type of room and you’re pretty close with them, and talking with them, and interacting with them, and it does feel rather intimate, including throughout the jury trial itself. And all of a sudden, that may be going away and there’s going to be a loss of advocacy a little bit if that happens.”

Ray Hrdlicka – Host – Attorneys.Media

“Well, that’s interesting. You know, people needless to say, outside of the justice system, don’t even realize how much that is impacting — potentially impacting their life, if they’re in it by accident or obviously, because of their own doing.”

Spencer Freeman – Criminal Defense Attorney – Pierce County, WA

“Well, think about it this way too: If I’m trying to explain to you a version of events and have witnesses explain to a version of events, and then I’m trying to explain to you how those interplay with the law. If I’m sitting close with you and we can look in each other’s eyes and you can trust me, and you can hear me, that’s a lot easier to deal with, with something, then even through a format through the Zoom conferencing, right? It’s a lot harder to build that level of trust and really even, whether or not you trust a witness.”

Ray Hrdlicka – Host – Attorneys.Media

“Right. Actually, let me ask this question: There wouldn’t be any jury trials where you would have to conduct it completely online, is there? I mean, that seems like in and of itself a reason for a mistrial. Because you couldn’t develop that intimacy that you’re talking about. That one-on-one, to be able to determine, do you go left? Do you go right? How are they reacting to you?”

Spencer Freeman – Criminal Defense Attorney – Pierce County, WA

“Right. I think that it could be, especially in the criminal realm, it could be a violation of the constitution if you don’t have the adequate ability to confront your accusers. And the question is, can you adequately confront your accuser over a video chat scenario? And I think that there would be some significant limitations on your ability to do that.”

Ray Hrdlicka – Host – Attorneys.Media

“The Supreme Court — I’m going off topic here a little bit — the Supreme Court is conducting oral arguments by telephone now. Right?”

Spencer Freeman – Criminal Defense Attorney – Pierce County, WA

“Right. But that’s not even close to the same thing, and here’s why: A jury is a fact-finder. They are to make credibility determinations and they are there to make a decision as to what occurred in some certain event. The Supreme Court is not a fact-finding entity. It’s a policy entity. And you’ve got the Supreme Court justices that are all smart, intelligent human beings, regardless of what you think about any of them. And you’ve got lawyers that are all smart and intelligent. If you’re at the level you’re arguing in front of the Supreme Court, that’s who you are. And these people are going to be able to function as you need to function, even over a video conference, and not needing to access credibility like a jury is.”

Ray Hrdlicka – Host – Attorneys.Media

“I see. Bringing it back to Pierce County here, the article talked about that there were 1500 criminal cases pending for trial, and 500 civil cases pending for trial. Now at first glance that seems like a great number. It’s like, how are you going to get through that, especially given the next sentence that said, ‘At any point in time, there can only be about 12 trials going on at the same time in the Pierce County justice system.’ Well, if that’s the case, something doesn’t make sense. So I would expect you to tell me that a number of those cases settle right before trial.”

Spencer Freeman – Criminal Defense Attorney – Pierce County, WA

“Well, there’s a couple things when you look at those numbers. First of all, those numbers are pretty much just standard business here in Pierce County. Maybe they are a little bit inflated right now, but I think that those are just normal course of business. And the Pierce County Superior Court does a pretty good job at handling that load and making sure that there’s courtrooms available for those cases that need to go to trial. The other thing to remember is that each one of those 1500 criminal cases and each one of those 500 civil cases, are all in different procedural postures. They may be going through discovery and investigations, and those cases aren’t even close to ready for trial yet. Some of them may be, hey, listen, we’re ready for trial. Definitely have cases that have been ready for trial and set for trial during this time period that are cancelled indefinitely.

Also, and to your point, was that most cases do settle before trial. And so if you’re talking — especially most civil cases settle before trial. So those 1500 criminal and 500 civil cases, those will not all go to trial. In fact, most of them — and I hear different numbers, but you can anticipate at least 95 percent of them being settled.”

Ray Hrdlicka – Host – Attorneys.Media

“That many? Okay. Well, that makes sense then. You’re going to be able to fit that workload into the existing infrastructure.”

Spencer Freeman – Criminal Defense Attorney – Pierce County, WA

“Right.”

Ray Hrdlicka – Host – Attorneys.Media

“All right, well, thank you very much for you perspective on it. You know, these times are troubling, but needless to say, we’ll get through it, and we’ve just got to figure out the best way to do it.”

Spencer Freeman – Criminal Defense Attorney – Pierce County, WA

“Sure, thank you.”

Ray Hrdlicka – Host – Attorneys.Media

“Thanks, Spencer.”

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