The Nuts and Bolts of Reopening Jury Assembly

As I mentioned in my last post, I consider Judge Susan Brown to be a friend, despite the fact that I occasionally disagree with her (as I did in said last post).  So it was no surprise to me when I woke up this morning to find that she had already sent me a text message in response to my post from the night before.

So, I gave Judge Brown a call this morning and we talked for about an hour and a half about the often complicated (and confusing) details that are going on behind the scenes to manage the Criminal Justice System -- in Harris County and across the State of Texas.  I learned quite a bit of information that I didn't know before and I thought it was important that any attorney practicing in Harris County understand it.  

It's complicated so I will try to organize this in a way that makes sense.

1.   Judge Brown taking exception to this being labeled as "her plan" is understandable.  It is far more complicated than that.

When COVID first started taking hold around March, the Texas Supreme Court tasked the Office of Court Administration (OCA) with sending a letter to all of the individual judges (from Justices of the Peace on up), instructing those judges to formulate a plan that would ensure court operations were running safely before allowing in-person settings.  Personally, I don't consider that to be a controversial goal to pursue.  Obviously, the administration of Criminal Justice wasn't something that could be put on the backburner.  

According to Judge Brown, the OCA provided a template to the different jurists that they had to comply with.  That template required approval from both the local county governments across the State, as well as the Health Department before it could be considered for approval by the OCA.  Without the OCA's approval, the court in question could not have operations.

A chain of command was established to help facilitate the proposal of these plans to the OCA and the subsequent approval of them.  As the Presiding Judge (or "PJ" as the cool kids call it, apparently) of the 11th Administrative Judicial District, Judge Brown's role was to work alongside local judicial entities in communicating the plans.  In Harris County, 152nd District Court Judge Robert Schaffer holds the title of Local Administrative District Judge (LADJ -- I learned a lot of new acronyms today).  In this chain of command scenario, Judge Schaffer is tasked with being the coordinator for all of the District Court Judges in Harris County (Civil, Criminal, Juvenile, Family, Probate, etc.) and facilitating a plan between those judges and Judge Brown.

So, when Judge Brown takes exception to the NRG Arena Plan being called "her plan," it's because there are a lot more people involved in this than just her.  She described herself as more of a facilitator than a planner in the process, noting that she has also been tasked with facilitating plans for the other counties in the 11th Administrative District.

2.  There are Phases

The letter that I mentioned above (the one that went out to all the different judges in March) only addressed the first step of requirements holding in-person appearances.  It was compliance with those requirements set out by the OCA that allowed the individual District Courts to open courtrooms within the CJC and Civil Building for in-person appearances.  ("Yay!" said no one.)

Judge Brown pointed out that there had been a template that had to be filled out for the basic step of in-person settings, and that (as of this writing) no such template for jury trials is even in place yet.  In other words, there is still a lot to be accomplished before jury trials start happening. 

Additionally, there are two phases within the planning of jury trials, which Judge Brown described as the "Facilities Plan" and the "How to Do Jury Trials" plan.  The information regarding NRG Arena being procured for jury assembly is obviously part of the facilities plan, and that is the phase that those making the plans are still actively in the middle of.  

The phase of "how to do jury trials" is still to come and Judge Brown acknowledged that there were going to be a lot of kinks to work out.  For instance, the jury rooms in the CJC and the Civil Courts Building are two small mathematically to permit 12 jurors and an alternate or two to socially distance inside of them.  She noted that the plans being informally discussed involved trials occurring in one courtroom and an adjacent courtroom being utilized as a de facto jury room.  (NOTE:  remember this tidbit because I'm going to come back to it.)

3.  How we got to NRG

Judge Brown noted that our beloved underwater jacuzzi Harris County Jury Assembly Building is still undergoing repairs for damage sustained during Hurricane Harvey.  I was under the impression that Harris County had gone back to using the previous jury assembly room in the building that houses the Harris County Law Library.  Apparently, I was mistaken about that.  The jury assembly room is currently a hastily constructed room inside the Administration Building and it was deemed too small to be able to accommodate a panel larger than 40 people with social distancing in place.

She stated that there had been discussion of holding jury assembly at the George R. Brown Convention Center, but that idea had fallen through for some reason.  At some point, the people at the NRG facilities got in touch with Harris County officials and ultimately an agreement was made that NRG Arena would be the best place to conduct jury assembly when it came time to do it.

4.  The Texas Supreme Court reigns Supreme

Judge Brown repeatedly emphasized that all of this planning for jury service is an effort to be prepared when the Texas Supreme Court mandates that Texas Courts are allowed to resume jury trials.  As it currently stands, that target date set by the Supreme Court is September 1st.  I anticipate that as COVID numbers continue to increase, that date is going to be pushed back again.  And probably again and again for the foreseeable future.  

She noted that the plan of all those involved was to be ready when the Supreme Court announced it was time to go back to work.

5.  Yes, there are exceptions to that shifting date set by the Supreme Court

Judge Brown acknowledged that the Supreme Court's rules currently provide that jury trials can be held right now under certain circumstance, and noted that Bowie County had recently held jury selection in a school auditorium.  She noted that Bowie County didn't go rogue in doing this, but had formulated a plan that had been approved by the OCA prior to holding the trial.

We didn't talk specifically about NRG Arena being used for jury assembly purposes in the selection of Grand Jurors earlier this month, so I'm not sure if that was something that had to be approved by OCA or not.  She did indicate that normal jury assembly operations were not set to begin prior to September 1st and that if the Supreme Court pushed that date back, jury assembly would be pushed back at NRG Arena in compliance with the Supreme Court's order.

6.  Who all has input into how things are going to be done?

Judge Brown said that by virtue of the letters sent to individual jurists by the OCA in March, all judges across Texas and Harris County were per se invited to give their input.  She noted that not all judges were coming to regular meetings but assumed that their interests were being represented by Judge Schaffer in his capacity as LADJ.

She stated that there were two standing committees currently in Harris County -- a jury committee and a reopening committee -- and that both committees were open to all of the judges.  She acknowledged that these meetings were not open to anyone other than the judges.  Specifically, she noted that the elected District Attorney, Kim Ogg, was not a part of either the reopening committee or the jury committee.

Judge Brown said that immediately following the jury meeting and the reopening meeting, they have been holding a "Department Head Meeting."  She stated that at this meeting, non-judicial people are allowed to attend for the first time (in the scheduled chain of events).  She said that D.A. Ogg's first opportunity to be heard comes at this juncture and that Defense Bar representatives are welcome as well.

7.   Random thoughts and things of interest

Judge Brown noted that Impact Court as it currently operates will cease to exist (sort of) under the reopening plans, and logistically, that makes sense.  Since the idea of Impact Court (in theory) was to establish additional courts when all of the other courts were running at full capacity, it becomes unnecessary because "capacity" became drastically redefined by COVID.  

As I noted above (in that "tidbit" that I told you to remember), if courtrooms are being conscripted into duty as de facto jury rooms, it's going to be a really really long time before Harris County sees all four courtrooms on a floor of the CJC operating at the same time.  There isn't going to be a need for Impact Courts, because there isn't going to be any physical room for Impact Courts.  She did note that the entity known as "Impact Court" would continue to exist, but for different reasons.

Although she didn't completely confirm this, she indicated that those cases going to trial would be the oldest ones where the Defendant was still in custody, which makes perfect sense.  In a hypothetical situation, if the top three oldest cases were all filed in the same court, the judge of that court could go to trial on the oldest case, and an Impact Court judge might be called in to try the second oldest case.

She agreed with me that the District Court Judges would be hard-pressed to justify going to trial on a bond case while custody cases set for trial remained.

In the end, she stated that District Court Judges would still be in charge of their own trial dockets and nobody would be forcing them to go to trial if they didn't want to.  She laughed at the idea of her forcing judges to go to trial against their will and wondered why people would think she would do that if she could.  I told her that we all just remembered her excitement about going to trial from her days in the 185th.  She laughed and said she understood.

8.  Takeaways

Despite these clarifications, I still think it is important to encourage Harris County Judge Lina Hidalgo to remove Item 15 from Tuesday's agenda, as I covered in my last post.  My reasoning doesn't have anything to do with Judge Brown, however.

My reasoning is that, in my opinion, if Judge Hidalgo approves the almost $2 million for security at NRG (along with any other funding), she will be relinquishing any remnants of local control she has of how jury selection is done in Harris County.  In essence, she will have written a check to State control that can be cashed at any time.  

Throughout the COVID crisis, Judge Hidalgo has consistently erred on the side of caution when it came to governing in a pandemic.  She's faced relentless backlash from the State in the form of Governor Abbott saying she overstepped the bounds of her job.  She told people to put their masks on and he told them it was fine if they took them off.  Two months later, and now it is Abbott telling everyone to put their masks on and he's about to shut down the State.

She was right then.  If you disagree with me, feel free to come at me in the comments.  

I've got a lot more faith in her decision-making ability than I have in our State Government's, and I hope she doesn't give away that control