Throughout the COVID-19 pandemic, the court and justice systems have had to be adapted, causing delays in many cases. One of the limitations resulting from the pandemic is the pause placed on jury trials. Recently, on Oct. 29, Perry County District Judge Cody Goehring gained special permission from the Supreme Court and conducted the area's first virtual, or remote, jury trials in disability proceedings.
“The type of case, they are called adult guardianship cases. The idea behind those cases is that usually a family member has another family member who is unable to take care of themselves due to a mental disability, or a physical disability or a combination, and they are requesting to be named a guardian of that person so they can handle their medical decisions, their living decisions, their financial decisions, because the person is incapable of doing that. In Kentucky, those cases are required to be determined by a jury,” said Goehring. “You can appoint someone to fill that role in an emergency capacity but in order to make a permanent finding of disability, you have to have a jury trial.”
Recently, Goehring said, the law was changed to allow for bench trials, but they require a waiver.
“Historically here in Perry County, we haven't waived them because it's difficult to get a knowing and voluntary waiver from someone that the state, the Commonwealth, is arguing is incapable of making those decisions, so it's kind of a catch-22,” said Goehring. Because of this nature of the cases, along with the large number of them in the area, he said, Perry County usually holds jury trials for these cases.
“We typically have done jury trials. We've done as many as 16 on the same day – they're very quick trials – and we typically have to do about 10 of those trials a week just to keep pace with new cases. Well, that's caused a problem because we haven't be able to do any of those jury trials since March,” said Goehring. He said that, due to the lack of trials during the pandemic, the court system is behind on many of the cases. “Obviously we're way overdue on a lot of these cases. Furthermore, the individuals, the respondents, often have significant medical concerns, which would make their appearance in court even more dangerous than it typically would be,” Goehring said.
In an attempt to work on some of those cases, Goehring said, he obtained an order from the Kentucky Supreme Court giving him permission to conduct trials virtually.
“The KRS 26A.100 statue is the one that has been interpreted to potentially prohibit fully virtual/remote jury trials, and is why I had to get permission from the Supreme Court in the first place,” said Goehring. Another statute Goehring said he had to account for was KRS 29A.320, which presented several areas explaining where doing a jury trial fully virtually or remotely could cause a problem.
The Supreme Court rule mentioned in the order said, “The policy-making and administrative authority of the Court of Justice is vested in the Supreme Court and the Chief Justice. All fiscal management, personnel actions and policies, development and distribution of statistical information, and pretrial release services come within that authority.” The Kentucky constitutional section mentioned in the order said, in part, “The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice.” These two rules, said Goehring, gave the Supreme Court the authority to issue the order to Goehring.
Goehring said he researched the aspects of virtual trials and spoke to three other judges that have done remote jury trials in other states – Travis County (TX) Justice of the Peace Nicholas Chu, who did a jury trial on a traffic ticket; Collin County (TX) District Judge Emily Miskel, who did a nonbinding summary civil trial; and Fourth Judicial Circuit (FL) Judge Bruce Anderson, who did two civil trials as part of a pilot program in Florida. “I spoke to all three of these judges before conducting my trial,” said Goehring. “To my knowledge, this was the first one in the state of Kentucky,” he said.
The process, he said, was very different and much longer than normal.
Before the pandemic, Goehring said the process of a jury trial for disability proceedings, or adult guardianship cases, consisted of bringing in a jury that will often be used during the whole day for multiple trials, making sure the jurors do not know the people involved and meeting at the courtroom for an in-person trial.
“Obviously, with Coronavirus, we couldn't do any of those things,” said Goehring.
Goehring said he had a clerk from the court office pull together a list of 31 random jurors. He then got permission from attorneys involved and got special permission from the Supreme Court to do the trial virtually, he said. Goehring said that, once he got permission to continue, he called all of the jurors one at a time and had to explain the process and get contact information for each of them. All of this, he said, was done on the record.
“This is a step you would typically never see — you would never see a judge contact the jurors,” he said.
“We had about 30 cases scheduled. We narrowed them down to maybe nine or 10 cases, and we gave each of the litigates a reporting time,” Goehring said. “Normally we let them all in the courtroom at once, but we had to let them in (virtually) one at a time because one of the limitations of Zoom is you can only fit so many windows up at a time. When you have all the jurors, all the attorneys, all the witnesses and all the respondents and parties, there is just too many people for the jurors to actually get a good look at people.”
“During the trial, the process took a little longer because you had to let each litigate in from a waiting room one at a time, you had to make sure all the witnesses could hear, the jurors could hear, all the attorneys could hear,” he added, explaining that he had to repeatedly un-mute and check in with each person individually to ensure everyone could hear and was paying attention. Additionally, he said, he asked the attorneys involved to dress up more than they typically would for a jury trial, so people knew it was just as real as in-person court appearances.
“I wanted to exhibit to the jurors this is a real trial, this is going to have real consequences,” said Goehring.
Throughout the virtual trial process, he said, they did encounter some technical issues. Some jurors did not know what Zoom was, some jurors did not have strong or reliable internet connections and some jurors did not have proper devices and had to borrow them from family members, said Goehring. If someone got kicked off during the trial, Goehring said, they had to stop the trial until that person was able to re-join, then he would manually add their information back in and repeat what they left off on.
Although the court had set aside multiple cases for consideration, they were only able to complete two virtual jury trials in one day, said Goehring.
“That sounds good, two trials in one day using this procedure, except these are types of hearings that typically we have to do 10 a month just to keep pace,” he said, adding that the court has approximately 40 pending for trial right now. To catch up, Goehring said, they would need to have the trials multiple times a month, which would drain the jury pool. Those numbers he said, do not include the other types of pending cases the court has, such as criminal trials and others.
Currently, Goehring said, there will be no more virtual trials unless he seeks special permission again, and in-person trials will remain prohibited until COVID-19 cases decrease.
“Right now there are no plans to do any further virtual trials, because I don't have permission to do it,” said Goehring, stating that he would need to go through the entire process again to get special permission for another trial.
“Counties that are in the red are prohibited from holding jury trials until they are back in the yellow,” he said.
For now, he said, the court will extend out time for emergency guardianship until able to safely hold trials again.