Don't Expect Pandemic Trials To Scale Up, Fla. Judge Says

After overseeing the first jury trial under a Florida pilot program evaluating how to try cases in a pandemic, a Sunshine State judge has come to the conclusion that small socially distanced trials might work, but not complex or extended cases.

Miami-Dade County Circuit Judge Beatrice Butchko spoke with Law360 about the one-day trial last month in a homeowner insurance dispute, which was selected as part of a statewide program to test ways of using technology to conduct jury trials during the COVID-19 pandemic.

The proceeding, which combined remote jury selection and an in-person trial, led to a nonbinding verdict in favor of the homeowner and, overall, went as well as could be expected, Judge Butchko said.

Judge Butchko, a former Miami-Dade County prosecutor, tried 82 cases as an attorney and has presided over 120 jury trials as a judge. She said the pilot was no ordinary trial, as the attorneys had to evaluate potential jurors via Zoom and, once in court, everyone — including witnesses and attorneys — were required to keep masks on at all times.

The judge said she felt the proceedings were safe and worth doing to get "the wheels of justice moving." But she discussed why a socially distanced trial might not work for one of the many tobacco cases pending in the state.

Judge Butchko also noted how seniors still wanted to serve on juries despite their increased virus risk and stressed the importance of attorneys "expanding their horizons" to make trials happen during the pandemic.

This interview has been edited for length and clarity.

Were you looking for a particular type of case for this pilot?

We were looking for a case that wasn't too witness-intensive, that wasn't too exhibit-intensive. We didn't want a long case, an extended trial. We wanted something we could handle in two to three days max.

You can imagine all the coordination involved and we were going to be working with all new concepts: COVID mitigation procedures, social distancing, how to minimize the transfer of items that people touched.

We thought a case that was evidence-intensive and witness-intensive would really just multiply the risks and the chances for something to go wrong. So we wanted to start simple first, to work out the kinks.

From the video, it's apparent people in the courtroom were wearing masks and social distancing. Were there any other safety measures not readily visible?

Oh my goodness, yes. When we moved into the building, the jurors were allowed to park in the courthouse [parking lot]; normally they are not. We displaced some administrative court personnel. We put them in visitor parking and we gave jurors assigned parking. We had extra staff available where jurors were coming in the building to make sure they went to the right spots.

We had jurors, and everyone, everybody in the courthouse, get their temperature taken. Everybody who comes in the building has to answer screening questions. Jurors were provided [personal protective equipment], hand sanitizer was available in the courtroom. We had a bankers box made for each juror, we had an evidence binder specifically made for each juror.

Did anyone associated with the trial fail the temperature test?

No, no, no. Nobody that I heard of, and I think I would have heard.

You've seen a lot of different jury trials during your time on the bench. Given that, what's your overall assessment of how this went?

I do have a tremendous amount of jury experience. And some of my colleagues were pleasantly surprised at the nature of the cooperation by the jurors, but I had no doubt that the jurors and our citizens would step up to the plate. I just have that much experience with jurors.

They answered our questions during the Zoom voir dire almost as if they were here in front of us. The same kinds of concerns, the same kinds of questions.

How close did this feel to a normal trial?

For the most part, it was business as usual. In terms of judging the witnesses' credibility, I think the eyes are the windows to the soul, so to speak. Also the cadence of how a witness answers, the demeanor of the witness on the stand, their tone of voice, what they say compared to what other witnesses said, whether or not their testimony is consistent with the evidence. Those are the standard criteria by which jurors are instructed to evaluate witness testimony.

We had four or five witnesses and I didn't have a problem at all making a judgment call, for me internally, whether I thought a person was reasonable, forthcoming, whether their testimony made sense. And I don't think the jurors had a hard time, either.

What was it like conducting remote voir dire?

So we had 652 jurors answer their summons by way of computer registration [out of 3,000 summonses sent]. Of those 652, we struck 45 jurors for cause based on paper alone. We decided anyone 70 years or older we would strike. But we had [jurors in their 70s and 80s], so all those jurors were interested in at least responding to the survey. We had an 86-year-old that was willing to come in.

After that, we asked jury services to take the remaining 607 jurors and to shuffle those in their computer and randomly give us 120 jurors. We wanted two panels of 60.

We didn't know how bad this was going to be, we didn't know how many jurors we were going to have to question, we didn't know how many jurors were going to say, "Go pound sand, we're running for the hills." So that's why we had all those jurors handy. After the first 60, we never even dealt with the second 60.

I know attorneys put a lot of stock in jury selection. Did you have any pushback on doing it via Zoom?

In this particular case, the lawyers were very cooperative with whatever we were trying to achieve, because of the exploratory nature of this. It's for educational purposes and everyone's interested in trying to resume the trial process one way or the other.

I think there are two camps presently of lawyers. There are lawyers that are willing to sacrifice a lot of the in-person contact with jurors, just to get in front of a jury again. And there are others that hold fast that unless they can participate live in jury selection they're just not interested.

But I think the jury selection session in Zoom did not preclude a real exchange. The lawyers felt the jurors could be distracted, but we instructed them that they must not leave the Zoom screen, they must not speak to anybody, they must not use their phones, they must not do the things they must not do when they're in court. And I think they were fine.

With this going so smoothly, would you consider holding a full trial via Zoom?

I think that it can be done without a problem. I'm on the adjunct faculty at the University of Miami Law School, teaching trial skills. And we always end the class with a mock trial. We bring in undergraduates or advanced high school students as jurors, and we bring the law students into the courthouse and we do a full trial.

This year of course that couldn't take place, so we did our final exam trial on a platform called BlueJeans, similar to Zoom. The [student] lawyers presented their openings, the jurors were on the screen. Because this was a learning tool, we had the jurors deliberate in the open. We watched the jurors deliberate, we saw that they paid attention to the evidence, they debated back-and-forth and they decided the case.

What's the difference?

Look, everybody wants to be in the courtroom. We're a society that thrives on human contact. Certainly, in this field, I even told the jurors, we're all people-people. There are very few introverts in this field.

But we're in a crisis right now, and we have to find a way to keep the wheels of justice moving.

The pilot trial took place in your usual courtroom?

We did it in the [Miami-Dade Family Court Services] building instead of in the civil courthouse where I am. The family building is a newer building, and the air quality is better there. The civil courthouse downtown has a lot of air quality issues.

Because of social distancing, jurors used an additional courtroom to deliberate. How many jury trials could you do compared to previously with these safety measures?

I don't know the percentage, but the way that we did this trial, I don't think it's scalable on a large scale. We had a lot of technology, a lot of support. A lot of people were helping us in this process.

We did learn a lot. There's ways to scale back the personnel, but we cannot scale back the safety aspect. For example, in a tobacco case in Miami, we bring sometimes 200-plus jurors in for voir dire. I used to do 125 on one day and sometimes 100 on another day. And our jury pool holds 300 people, but with social distancing we can only hold 75 people in there.

So if I need a voir dire of 100 people and I can only bring in 75, and then in the courtroom I think we can only fit maybe 20 [people] — it's just not scalable for large cases, catastrophic personal injury cases, extended trials. But for the smaller cases like these, you could do a couple maybe in a week. But it would take a lot of coordination.

Really, the scalability is the ultimate issue. Can we do this on a large scale? And can we get the lawyers to expand their horizons and think out of the box? Pardon the pun. And [have lawyers] consider Zoom jury selection and maybe even consider bench trials — just in order to bring cases to resolution during this pandemic, until we can get back on our feet.

--Editing by Breda Lund.

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