COVID-19 and Jury Trials: “It Ain’t Over ‘Till It’s Over”

Last week I testified before the judiciary Committee of the Vermont House of Representatives on H. 417, a bill that would reduce the size of juries in civil cases in Vermont from 12 to 6 members.

The impetus of the bill is a desire to restart civil jury trials as we try to recover from the COVID-19 pandemic.

I was preceded by a witness who is an authority on the subject of the pandemic and its effects on our society, Professor Nicholas A. Christakis, M.D. Ph.D. M.P.H. Dr. Christakis lives in Norwich Vermont and is the Sterling Professor of Social and Natural Science, Internal Medicine & Biomedical Engineering at Yale University. He is a sociologist and physician who conducts research in the areas of social networks and biosocial science. He directs the Human Nature Lab and is the author of a book about the COVID-19 pandemic, Apollo’s Arrow: The Profound and Enduring Impact of Coronavirus on the Way We Live (New York: Little Brown Spark, 2020).

I  am not sure that that all the members of the Judiciary Committee fully appreciated the gravity of Professor Christakis’s remarks.  That is not surprising, as his professorial style did not push the panic button.  

But what Christakis is saying – at least as I understood it — is that this pandemic is not over. As I wrote in my follow-up Memo to the Committee summarizing the Professors remarks: “[I]t is quite likely that we will suffer setbacks with COVID-19 in the fall of 2021. Even if, as the Professor predicts, the epidemiological crisis is over by the end of the 2021, Covid-19 will still be endemic — that is to say, widespread — though it should no longer be a crisis of pandemic proportion. It will be a chronic problem that will continue to frighten a significant portion of our population. As Professor Christakis noted, it may well be until 2023 before a new normal is established.”

Others, like Dr. Siddhartha Mukherjee, point out COVID is a worldwide problem and suggest that we should be ready for a possible second wave and third wave, and even a forth wave of the pandemic. Atul Gawande and Siddhartha Mukherjee on the State of the Pandemic, “The New Yorker Radio Hour.

The B1617 and B117 variants of the virus are already in the United States.  Should we be Worried About India’s Double Mutant Covid-19 Variant, “The Straits Times.”  Vaccine hesitancy is a potential disaster as we may not get enough herd immunity to keep variants from getting a foothold. We do not yet know if Pfizer and Moderna vaccines will protect us from these and other variants. Pfizer, Moderna test vaccine strategies against new COVID-19 variants

I do not want to push the panic button either. I really looks like the pandemic phase of COVID-19 will soon be over. Vermont had only 6 new cases on Sunday, and that’s terrific. But assuming that it is over, and acting on that assumption, could prove a mistake, and it could prove to be one of serious proportion.

I am a lawyer, not an epidemiologist or a virologist. But I sense that even here in Vermont — where we have been as careful as anywhere I know — there is a building complacency that may prevent our policy makers from planning for the worst, even as we all hope for the best. We are all so very tired of the steps we have needed to take to protect ourselves for the virus. We share an intense desire to put this extraordinarily difficult time behind us.

I support H. 417 as an interim reform that will help get jury trials restarted in Vermont in the near term, even if we have some COVID related problems. (Pandemic or no pandemic, we need to make some basic reforms in jury trial procedure, but that is a subject for another day).

It has been 14 months since we have had a jury trial in State Court in Vermont. For now, even with the jury restart plans that our Judiciary is developing, we could easily find ourselves unable to routinely conduct jury trials for another 18 months or so. That  is a huge access to justice issue on both the criminal and civil sides of the docket. I hope that the Legislature, or the Vermont Supreme Court, will adopt 6 person juries in civil court as an interim measure to help put us in a position to try jury cases again as soon as possible.


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