Last month, Florence Gidez was called for grand jury duty in Brooklyn. She presumed it would be canceled due to the pandemic. But after checking online the night before, she showed up at Brooklyn Supreme Court on Jay Street on August 10th.
“I got there and I had no idea what [a] grand jury was,” she said. “That it lasted for a month. That they don’t interview you.”
Unlike regular jurors, who go through intense screening before deciding a defendant’s fate, grand jurors only determine whether prosecutors have enough evidence to indict a defendant, with 16 to 23 New Yorkers serving on each. As a healthy 35 year-old teacher on summer vacation, Gidez had no reason to qualify for an exemption.
When she joined her fellow grand jurors, Gidez saw they all wore masks and sat at least six feet away.
“But then once it starts then they reveal that witnesses are required to take off their face masks to testify,” she explained, because jurors need to see the whole face to determine credibility. ”They are still wearing a face shield but as far as I know a face shield is not the same as a mask.”
After a week, Gidez said she called the court to say she wouldn’t be back because of safety concerns.
Epidemiologists say plastic face shields are not as effective as masks at preventing the spread of the coronavirus because they don't fully cover the nose and mouth. Even though the witnesses are at least six feet away from anyone and sit behind plexiglass barriers, they’re still indoors where the virus spreads most easily.
“We don’t and we cannot achieve that kind of close fit to the face” with a shield, said Dr. Wafaa El-Sadr, a professor of epidemiology and director of ICAP at Columbia University. To see someone’s face, she suggested using clear masks made for people who need to read lips.
A spokesman for the Office of Court Administration said the agency is looking into clear masks but that some get foggy, obscuring the face.
Courts played a role in the spread of coronavirus when the pandemic hit New York. Three judges and three court officers died of COVID-19, and hundreds of officers, prosecutors, and defense attorneys were sickened.
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The court system is dealing with a massive backlog from the pandemic, and grand jury selection began last month for the first time since March. New York State’s Chief Judge Janet DiFiore said that more than 100 grand juries have been seated statewide without what she called “significant incident or illness.”
“All of this suggests, of course, that New Yorkers rightly expect our courts to be up and functioning in person even at this difficult time,” DiFiore explained in last week’s online announcement, “and that they have confidence in our ability to properly safeguard public health and responsibly discharge our duties with safety as our number one priority.”
She said a court in Lower Manhattan has just been retrofitted to allow in-person appeals, and in-person regular jury trials are being piloted in Suffolk and Erie counties.
The head of the District Attorneys Association for the State of New York, Sandra Doorley, supports the resumption of jury operations. But to prevent the spread of COVID-19, she also told a state senate committee hearing on the courts last month, “There is clearly a need for courts to allow for more virtual testimony.”
Is In-Person Necessary?
When incarcerated defendants are brought to court, it’s often to determine whether they’ll testify at a grand jury. Sometimes they can testify virtually, but attorneys say there’s not always enough advance time to schedule that.
Similar complaints have been made about other types of in-person appearances. In July, the courts started scheduling about 10 cases a day in each court for felony defendants. Public defenders noted this was just as Mayor Bill de Blasio was criticizing the court system’s post-pandemic slowdown for contributing to the rise in crime, despite a lack of clear proof.
Many of the felony defendants who come to court have yet to be indicted by a grand jury. They were either released on their own recognizance or paid bail. There are also courtrooms for people being brought in on warrants. Some defendants who have been indicted by grand juries for felony charges, including gun crimes, also briefly appear and may check in with social workers, as part of their release conditions.
One morning at Brooklyn Supreme court last week, a fourth floor courtroom for unindicted felony cases held about 20 people in total, including a few court officers.
The judge, clerk, prosecutors and defense lawyers all had plexiglass barriers by their desks. But on the bench area, there were only paper signs with red and green lettering advising people to sit six feet apart. There were no signs warning them not to sit in the row immediately in front or to the back, and a few people were clustered together.
One 19-year old defendant had come with his mother. “It happened someone right in front of me coughed and I’m sitting right behind them,” she said.
Neither wanted to discuss the case or give their names. The son said he had just been bailed out of jail, where he worried about catching COVID, and said he feared going to court in person because his siblings have asthma.
“Like, I’m going to speak blunt,” he said. “I could kill my brother… just by, like, having a pathogen inside of me that I don’t even know about.”
He and his mother spent about an hour inside the court building before their case was swiftly adjourned to another date while he waits to see if he’ll be indicted by a grand jury.
Public defenders say this happens all the time and it’s not worth the risk for them or their clients to come to court when so much business can be handled online. Most of their clients are people of color who were disproportionately affected by the pandemic.
Brooklyn Legal Aid lawyer Danielle Whiteman got COVID in March and said she still suffers from vertigo and occasional breathing problems. She said three colleagues who were in Brooklyn Criminal Court on the night of March 13 with her also got it, including one who died.
“I will not go back into that building until I know that it is safe,” she said. Whiteman handles misdemeanor cases and is able to work from home, because those cases aren’t seen in person.
When the pandemic started, Governor Andrew Cuomo suspended the speedy trial laws that set deadlines for presenting evidence and dismissing cases. The backlog has been growing ever since. But unless someone’s taking a plea or having a bail hearing, Whiteman said there’s not a lot that can happen in court these days.
“Literally their constitutional rights claimed by the governor have been suspended,” she explained. “So we can't move the cases forward, towards hearing and trial at this time.”
As the court system gradually ramps up operations, to manage its backlog plus new cases, she said it’s important to cut down on in-person appearances whenever possible. That way, she said, those who really should get their day in court can have a safer experience.
Air Flow and Density
The city’s courts are nowhere near as busy as they were before the pandemic. Arraignments are still handled online as well as misdemeanor appearances. The housing courts allow in-person bench trials in socially distanced courtrooms, but many litigants prefer the virtual option. And while desk appearance tickets are now being scheduled, for violations such as possessing small amounts of marijuana or urinating in public, these can also be handled virtually.
The Office of Court Administration says any in-person appearances are scheduled to avoid having too many people come to court at the same time. But those who work in the buildings still worry about the potential for crowding and want more information about safety protocols. A union representing court officers is suing the court system over what it considers inadequate cleaning procedures and safety training.
In July, public defenders across the city sued to prevent the courts from starting in-person appearances. Their case was dismissed. But Legal Aid Society lawyers used the health protections in their union contract to file a grievance. An arbitrator took their side and found the courts are high risk environments for the spread of coronavirus. She urged Legal Aid Society’s management to keep pressing for changes.
Tina Luongo, the attorney in charge of Legal Aid’s criminal practice, said ventilation is a top concern.
“It's the same anxiety level that parents and teachers feel in the school system,” she explained. “We're asking for the same things, like let's have some action teams that are able to go and look at the filtration systems.”
New York’s courts are run by the state. But their 29 New York City buildings are managed by the Department of Citywide Administrative Services (DCAS). A DCAS spokesman said all criminal courts have high efficiency air filters rated MERV 13 or more that can help screen out virus particles in every room. The 12 that don’t, which include some surrogate and family courts that are not conducting in-person appearances, are supposed to get portable air purifiers from the Office of Court Administration. However, OCA did not say when that would happen.
Limiting Spread From Jails to Courts
Legal Aid’s union is seeking to let its own safety experts tour the courts to see how these filtration systems are being maintained. Attorneys are also concerned about small meeting spaces that don’t seem properly ventilated and don’t allow for social distancing.
Legal Aid lawyer Anna Carlsen recalls meeting a client in Brooklyn Supreme court last month who had just been brought over from the jail in Lower Manhattan.
“And I said, where's your mask? Did they give you a mask at the facility where you've been held since arraignment?”
Carlsen said her client had been incarcerated at this point for five days. “And he said, ‘Oh, yes, they gave me a mask.’ And he pulled from his pocket this absolutely filthy, tattered surgical mask.”
She said the correction officer who escorted her client also wasn’t wearing a mask—a complaint echoed by other attorneys. The city jails say there are currently no active COVID-19 infections but about 260 people in custody did test positive at some point in their incarceration. People in jail sometimes come to court to meet their attorneys and to testify at grand juries. Carlsen said their meeting room in the Brooklyn Supreme Court is actually a tiny booth surrounded by plexiglass.The only way to speak to her client was through a hole, and he shouted to be heard.
“He kept saying, ‘Are you listening?’ or ‘Are you getting all of this?,” she recalled. “Speaking loudly, yelling, spittle flying.”
Carlsen said she focused on taking notes, but she was also thinking, “Oh God, is this safe?”
Glenn Hardy, a defense attorney in private practice, described sitting in the interview room in Manhattan Criminal Court recently where there was only a wire mesh divider—no plexiglass. He said his client had pulled his mask under his chin and spit at him after becoming angry.
“They called EMS, they took me to the hospital, I had to spend about six hours for them to do all sorts of blood work, do the COVID test,” he said.
The Department of Correction is in charge of these small holding areas in the courts in each borough. As of Monday, the agency said it’s in the process of replacing the mesh divider in Manhattan with plexiglass, and that it’s working with the court system to find additional meeting rooms. It also said staff—and all people in custody—are instructed to wear face masks in court, and that there’s an ample supply.
“We are committed to making attorney and court visits as safe as possible for everyone involved,” said DOC Press Secretary Jason Kersten. “And we will continue to work with our partners at OCA to improve safety and social distancing wherever possible.”