For six months, the federal courts in the Twin Cities conducted no trials, hamstrung by a COVID-19 threat that could make any face-to-face encounter perilous.
But this week, with retrofitted courtrooms in Minneapolis and St. Paul, trials resumed, with a bench trial in St. Paul in which Judge Susan Richard Nelson is presiding, and a full-scale jury criminal trial in Minneapolis, overseen by Judge Nancy E. Brasel, who gaveled it into session Tuesday.
The Minneapolis courtroom was equipped with plexiglass surrounding most of the jurors, shielding the witness stand, separating the defendant from his defense attorney and the prosecutor from an agent from the Bureau of Alcohol, Tobacco and Firearms and Explosives (ATF), who was overseeing the investigation. Everyone wore masks.
Brasel provided a short tour of the new setup on Monday before the trial began, and she quipped that the jury box looks like a hockey penalty box.
She showed off the headsets that she and the attorneys on both sides were to use so they can talk to each other without the jury listening in, replacing those occasional sidebars in which the judge and attorneys huddle in the front of the courtroom.
There were headsets for the defense attorney and defendant, and for the prosecutor and the ATF agent.
Every time a new witness testified, a new cloth covering was put over the microphone by a court assistant, and surfaces in front of the witness stand were wiped down.
“We have spent an extraordinary amount of time and energy and court talent to develop everything we can that minimizes the risk to the jurors,” Brasel said.
Not all experts agree it is safe enough, noting that barriers and masks can block larger droplets produced by coughing but are not as useful in stopping the spread of smaller particles that circulate from breathing and talking.
Dr. Lisa M. Brosseau, an industrial hygienist at the Center for Infectious Disease Research and Policy at the University of Minnesota, said there still should be no jury trials.
“People should not be spending a lot of time in a room, even with barriers, even with face coverings, even if they are separated by 6 feet,” she said. “The danger is the concentration of particles within the room will increase over time.”
John Tunheim, chief judge for the U.S. District Court of Minnesota, said the new protocols were reviewed by the state Department of Health, which made recommendations, all of which were adopted.
“Criminal defendants are entitled to a speedy trial, a constitutional right as well as a statutory right, so we decided to move forward as best we could with all the precautions we felt would be necessary,” Tunheim said.
He noted that three grand juries have convened since May to make decisions on indictments, and while hearings have been conducted through videoconferencing if the defendant agrees, they have been held face to face if defendants insist on being in the courtroom, and no infections have occurred in either instance.
“We have tried very hard to balance individual rights with the risk of infection, and we’ve been successful so far,” Tunheim said.
Jury trials in criminal cases resumed in state courts in four Minnesota counties — Hennepin, Ramsey, Olmsted and McLeod — in mid-June after a three-month hiatus, and were expected to slowly return in other counties. They included new COVID-19 protocols established with the help of the state Department of Health.
The pandemic has created a backlog of federal trials, which are now scheduled almost weekly between now and the end of April in Minneapolis and though the end of May in St. Paul, Tunheim said. Some of those trials may not occur if there are settlements in the civil cases, or if clients plead guilty in criminal cases.
Brasel briefly pulled down her mask at the start of jury selection Monday so prospective jurors could get a look at her, and she asked both defense and prosecuting attorneys to do the same. Witnesses also removed their masks on the stand so jurors could see their facial expressions.
Once the trial got underway, family, the public and the media were informed they would have to watch from a remote room on the second floor of the courthouse. Two big screens were set up, but the camera angle made it impossible to see witnesses testifying, although they could be heard. When Tunheim learned of the problem Tuesday, he vowed to fix it within 24 hours and did.
Potential jurors are randomly selected from a list of citizens, but the court, anticipating some might not be able serve because of COVID-19, sent out twice the usual number of questionnaires, asking among other things whether potential jurors had medical concerns in light of the pandemic.
Some had underlying health conditions such as an autoimmune disorder, others were health care workers who are exposed to COVID-positive patients, and there were caregivers for people in high-risk categories.
“We are not excusing them; we are deferring their service until a later date,” Brasel said.
She said if a COVID outbreak occurs among jurors, the trial will be halted.
Despite the plexiglass and protocols, once the criminal trial got started Tuesday, it sounded much like a typical criminal case, with conflicting accounts about key evidence in the case of a felon accused of illegally possessing a firearm. The case is expected to go to the jury on Thursday.
Randy Furst • 612-673-4224