Since the COVID-19 pandemic began in New York last March, only one criminal trial has been completed in Queens – beginning eight months later in November and ending just after the state court system once again had to shut down in-person trials due to a resurgence of the virus.
The lawyers, including the judge who participated in the trial, reunited again on Jan. 20 during the New York State Bar Association’s Annual Meeting as part of the Criminal Justice Section’s webinar entitled “Conducting a Jury Trial in the Shadow of COVID-19.”
Retired Justice Ira H. Margulis, Supreme Court, Queens County, presided over the trial. Queens County Assistant District Attorney Gregory M. Lasak prosecuted the case and defense lawyer Michael C. Anastasiou, of Kew Gardens, represented the defendant. Also joining the panel was Rosemary Chao, principal law clerk to Justice Margulis, who handled many of the logistics associated with planning a trial during a pandemic.
David Louis Cohen, vice chair of the Criminal Justice Section, of the Law Office of David L. Cohen in Kew Gardens, moderated the panel discussion.
The case was State of New York v. Robert Harris. The defendant was arrested in 2018 after reportedly breaking into a Springfield Gardens home through a window and fondling a woman asleep there. His charges included felony burglary and burglary as a sexually motivated felony.
Chao explained that the trial commenced in March but after the pandemic began – and just before the state court system shut down – the parties agreed to a mistrial and to disband the jury. Eight months later, as grand juries reconvened and trials were allowed to proceed, the Office of Court Administration considered various factors to determine which cases could be tried during the pandemic. These factors included the complexity of the case, expected length of trial, number of witnesses, bail status of the defendant and consent from all of the parties to proceed with a trial during the pandemic.
Anastasiou said his client was adamant about going to trial as soon as possible. He had remained behind bars awaiting trial since his arrest. His attempts to get his bail reduced or to be released for safety reasons during the pandemic had been denied.
“I promised him, ‘When it’s time to kick off again, we’re going to be one of the first to go. I give you my word on that,’” said Anastasiou.
Ultimately, Administrative Judge Joseph Zayas felt the Harris case was an ideal one to move forward.
Margulis thanked Anastasiou for proceeding because he noted that he was under pressure from his peers.
“Many defense attorneys were not in favor of this trial proceeding. Mr Anastasiou had the courage to go forward with it and we all appreciate that he did do that,” said Margulis. “Whatever safety concerns he had, he tried to relay them, and we tried to make this trial as safe as possible for everybody.”
Leading up to and during the trial, safety always came first. This was emphasized by each panelist. They explained that during voir dire, five jurors sat in the jury box socially distanced. Another ten were brought into the courtroom and sat in the audience section, also distanced.
During the trial, the jurors sat in the back in the audience section while alternates sat distanced in two neighboring courtrooms and watched the proceedings on a large screen television.
There were extra court officers, plenty of sanitizer and wipes, and three microphones to help amplify the testimony. Margulis even demonstrated during his initial jury instructions how to appropriately wear a mask – covering both the nose and mouth – and said the court officers would say something if a mask wasn’t completely covering both.
Lasak explained that even during his trial preparations with witnesses at his office, they sat about ten feet apart, with masks on, and each was provided with a bottle of hand sanitizer to use before sharing documents.
“I wanted my witnesses to feel as safe and comfortable as possible,” said Lasak.
Plexiglass was used where the judge presided and surrounded the prosecution and defense tables. An interpreter needed for one witness sat in the jury box. The lawyers had to adjust their positioning when speaking to witnesses, so as not to completely turn their back on the jurors in the audience.
Both Lasak and Anastasiou acknowledged that masks hindered their ability to read the facial expressions and body language of the jurors, which sometimes can influence their approach to questioning witnesses.
The lawyers also noted that talking for hours at a time with a mask on, especially with your voice raised, can become cumbersome and even give you a headache. Periodically the judge granted them mask breaks so they could get some air.
Testimony concluded on the Monday before Thanksgiving. Margulis, during his final jury instructions before deliberations, reminded the jurors not to rush through their decision-making process due to coronavirus concerns or because of the approaching holiday.
After two hours, the jury found Harris guilty of the lesser criminal trespass charge.
“We had a remarkable jury,” said Anastasiou. “They were there every day, on time, paying attention. No one was complaining… the jury was diligent…and they didn’t appear to me as if they had any overbearing concerns about their safety.”