Staff photo / Ed Runyan An attorney sits with his client during a sentencing hearing last week in the Mahoning County Common Pleas courtroom of Judge John Durkin, which is equipped with clear, plastic barriers that will be used to protect jurors and others when trials resume. Local judges agree it’s unclear when criminal proceedings will return to the courtrooms.

Although Mahoning County Common Pleas Court installed clear, plastic barriers more than a month ago in preparation for jury trials to resume last Monday, the objections of a defense attorney postponed the trial until October.

Judge John Durkin, who was ready to oversee the trial, has another one scheduled to begin Monday — but he and fellow Mahoning Judge Anthony Donofrio say it’s anybody’s guess how long it will be until the court has its first jury trial since the onset of the coronavirus.

“It’s very unclear right now. We don’t know how it will work out,” Donofrio said.

There has been a spike in coronavirus cases this month, but he said he’s not aware of anything happening at the state level that would prevent common pleas courts across the state from having jury trials.

As for Durkin, he’s ready for Monday and feels a jury trial can be carried out safely because of the procedures in place, but adds: “What I say today could change by tomorrow.”

In Trumbull County, efforts are ramping up quickly to prepare the courthouse and a secondary site for trials that also could begin Monday.

Last week, court personnel received permission from the W.D. Packard Music Hall to hold jury selection and or trials there. The huge facility would have no trouble providing the space needed to keep jurors and others properly spaced to reduce the chance of someone contracting the virus.

“We thought that was outstanding they were willing to step forward and do that,” Trumbull County Common Pleas Judge Andrew Logan said of the facility’s operators.

Logan actually has the largest courtroom in Ohio and said he believes his courtroom can accommodate a jury trial and even jury selection, which sometimes involves about 50 people being called to the courthouse.

A trial involves about 15 jurors, as well as attorneys other court officials, witnesses and spectators. Most of Trumbull County’s courtrooms are too small for jury selection but possibly big enough for a trial.

MASK ORDER

In both counties and with guidance from the Ohio Supreme Court, it has become clear that 12 jurors and several alternates can no longer sit next to each other in a typical jury box. They have to be spaced out, meaning some will sit in the gallery generally reserved for spectators.

Ohioans are under a mask order, so masks will need to be used during trials. But it is also clear that when a witness is testifying, his or her face must be visible to the attorneys and jurors because of the important information a person reveals through facial expressions.

After much preparation by Mahoning court officials to make a trial possible, attorney David Betras and his client, Lavontae Knight, attended a final pretrial hearing July 6 during which Betras asked for Knight’s July 20 murder trial to be postponed, which it was — to Oct. 19.

Betras told The Vindicator a big reason he sought the postponment was he wants to be able to see the faces of the jurors while he’s speaking to them and while questioning witnesses. In Mahoning County courtrooms, about four jurors will sit in the normal jury box and the others will sit behind the attorneys in the general seating area behind clear, plastic barriers.

“I was uncomfortable being in that courtroom just from a flow standpoint,” Betras said. “You’re used to talking to 12 people who are all together and now they are going to be all over the courtroom. You try to gauge people’s reactions. I wouldn’t be able to see the jurors’ reactions to things and get a flow,” he said.

Betras, who has been a lawyer 35 years, said the change would be like switching back to a typewriter after 35 years of using a computer. “It would be like: Whoa. I haven’t done that,” Betras said.

Furthermore, he’s concerned about contracting the virus or spreading it to his family.

“I commend all of the judges for everything they are trying to do. If someone wants a trial, they’ll give them a trial. I wouldn’t want to have a trial under these circumstances,” Betras said.

He said he wonders how he would be able to communicate with his client during the trial because it is typical for the two to put their heads close together and whisper. He also wonders how jurors would touch exhibits that are provided to them while they deliberate a verdict.

“I didn’t want to be the guinea pig,” Betras said of trying the first case in Mahoning County during the coronavirus.

Mahoning County Prosecutor Paul Gains said he also has concerns.

“I don’t think anyone wants to take a chance of someone becoming infected. We would be in a small place like a jury room or at a trial,” he said. “I don’t like that we can’t have jury trials, but it’s just a fact of life with this COVID. We’ve got jurors to protect. We’ve got witneses to protect. We’ve got court personnel to protect. We’ve got visitors to protect.”

The court system continues to function without trials, he said, noting that his attorneys are in court and on teleconferences every day handling pretrials, pleas and sentencings.

JURIES

Bob Jackson, Mahoning County Common Pleas jury commissioner, said the court has continued to issue summonses to potential jurors throughout the pandemic to be prepared in the event that a trial is necessary. This has caused his office to get “a lot of phone calls from people who are concerned about coming up to the courthouse while the pandemic is going on.”

The calls increased a month ago after news coverage of efforts to restart trials after an absence of about four months.

But Jackson added that on July 1, citizens were brought to the courthouse to serve on a grand jury, which issues indictments. Judge Maureen Sweeney’s courtroom was equipped with clear, plastic barriers so that grand jurors could be spaced.

Jackson said that process went pretty well, though Vindicator reporter David Skolnick, one of the citizens called to serve on the grand jury, said he could “make out only half” of what Sweeney told the potential grand jurors during her opening instructions. Everyone was wearing a mask and spaced.

Jackson noted that some potential jurors have sent paperwork back as normal and “seem willing to serve,” he said.

One of the factors involved in starting trials now is that the Ohio Supreme Court and Ohio General Assembly granted the courts an exemption from having to follow the state’s speedy trial rules requiring a defendant to have a trial within 90 days of his or her arrest.

The exemption was granted in light of the dangers posed by having large groups together, such as for a trial, during the COVID-19 era.

But that exemption expires July 30. Mahoning County judges have cited the exemption in recent months for postponing trials.

Durkin and Logan both say the end to the exemption is a factor in wanting to get trials restarted.

Durkin said the courts “will not be able to rely on that tool” anymore to postpone a jury trial if the defendant is not willing to allow the postponement voluntarily.

He noted that judges have always had the right to postpone trials “for good cause,” adding that, “It might be argued that with the increase in COVID cases and more specifically of there being an increase in hospitalizations, a judge along with the prosecutor and defense counsel might consider continuing a jury trial for a limited time.” In July, virus cases in Ohio have surged compared to May and June, leading to mask orders in Ohio and other states.

SPACING

Logan said he believes his courtroom is big enough to use for jury selection, and the three smaller courtrooms might be used for trials, but Packard Music Hall likely is to be used instead of the three other Trumbull courtrooms.

Use of the facility would be free, but the court will pay any costs associated with using it, such as utilities and cleaning. He doesn’t know yet whether the music hall stage or some other area would be used.

“For the smaller courtrooms, they will be using Packard most likely because they have the room to do the proper spacing down there,” he said. “We were looking around and that was finally the place that fell into our laps,” he said.

“Our principal intention is to make sure the court or wherever we hold the proceeding is safe for the public and in particular the jurors,” he said. A portable barrier would be used for “sidebar” conversations among the judge and attorneys that are held out of the hearing of the jury, he said.

Civil trials will probably begin in September, Logan said.

Logan said there has been some resistance in the past from lawyers to having trials while the coronavirus is a threat. “But they all know it’s going to have to start back up again, and I think everyone is thrown into making the system work as best as it possibly can,” he said.

He said the end of the exemption to speedy trial rules “to a certain extent” is a reason the trials are restarting, but another reason is: “If you don’t start up, you clog the system later on. We’ve tried to keep our dockets relatively up to date.”

He said, “It’s time. Justice is served by the courts proceeding, and that’s our intention to move the system forward. That’s our job as judges. There’s nothing in particular that says we have to do it except that’s what we’re elected to do is resolve these cases. As long as we’re able to do it safely, we’re willing to do it.”

erunyan@tribtoday.com