Thurston County Superior Court, Jury Trials vs. COVID-19.

The Center for Disease Control (and many other government agencies) “recommends practicing social distancing by maintaining a distance of at least 6 feet between people outside your home, not gathering in groups and avoiding crowded places and mass gatherings” “[d]uring the COVID-19 pandemic,” and because “[o]ne way of converting the CDC’s 6-foot separation criteria to occupant load is to simply calculate the area of a circle with a radius of 6 feet, which is equal to approximately 113 square feet per person.”

So I got to thinking that courts ought to have determined occupant load for its facilities either by using the 113 square feet per person, or by coming up with a different way of calculating occupant load (with a higher occupancy load because, say, some people are situated along walls, and so need only half as much space). So I asked Thurston County about this using a Public Records Act request.

I did not get as much information as I was expecting. But I did get diagrams of both the main campus Thurston County Superior Court building (Building 2) (first and second floors) and the Thurston County Superior Court Family and Juvenile Court building (over on 32nd in Tumwater) (first and second floors). The diagrams do have square footage for of the individual courtrooms.

The largest courtroom in Building 2, Courtroom 102, apparently has 2658 square feet. Which, if using the 113 square feet per person, puts the occupancy load for that courtroom at a bit over 23 people.

I am having a hard time envisioning how a criminal jury trial can be conducted–setting aside for a moment the issue of jury selection–with only 23 people in the room. Specifically, you need to have (1) 12 jurors; (2) at least one defendant; (3) at least one defense attorney; (4) a judge; (5) a clerk; (6) a court reporter; (7) a prosecutor; (8) at least two courtroom deputies (security/corrections staff); and (9) at least one witness at a time. That’s 21. That assumes *no* alternate jurors–which is usually a bad idea, and even more so during a pandemic, and much more likely to result in a mistrial. It also assumes no victim advocate (which is problematic for certain cases). It assumes no co-defendant trials. It assumes no “representative of the State” (e.g. the lead investigating officer). And even with that “bare bones” number of players, it only allows for two members of the public, which starts to smell like a de facto courtroom closure, which would violate the public trial right.

Perhaps additional load could be squeezed out by strategically positioning folks. Maybe the load can get up to the mid-30s for this particular courtroom, if a coordinated dance is effected and no one moves. Or perhaps we can just say “six feet be damned” and cram more people in the courtroom. That certainly seems to be what is happening on the ground with other sorts of hearings right now.

But I’m skeptical that there is a workable solution in the short term. The buildings, which were designed and constructed in an earlier time, simply do not contain rooms that are large enough to accommodate even the most stripped down version of the court’s core function.

Seems to me a lot of people’s trial rights are going to continue to be compromised by the pandemic for the foreseeable future. *And* that the only way out of this mess is either a vaccine or a massive amount of construction. Neither of which seems possible until 2021 at the earliest.

I’ve said it before, and I’ll say it again: this is going to get worse before it gets better, in more ways than one.