UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`
`In re:
`COURT OPERATIONS UNDER THE EXIGENT
`CIRCUMSTANCES CREATED BY THE OUTBREAK
`OF CORONAVIRUS DISEASE 2019 (COVID-19):
`REVISED SCHEDULE FOR THE RESUMPTION OF
`CRIMINAL JURY TRIALS
`
` Case No. 2:20mc7
`
`General Order No. 2020-19
`The United States District Court for the Eastern District of
`Virginia has continued to closely monitor the outbreak of
`Coronavirus Disease 2019 (COVID-19), as well as the developing
`guidance from the Centers for Disease Control and Prevention (CDC),
`and local health authorities. On May 26, 2020, General Order No.
`2020-16 was issued, establishing a preliminary timeline for the
`phased expansion of Court Operations and setting a preliminary
`date for the resumption of criminal jury trials in July of this
`year. Based on evolving conditions in Virginia and across our
`nation, as well as recent studies reported by the CDC, the issuance
`of a report on the resumption of trials by the “jury subgroup” of
`the COVID-19 Judicial Task Force (Subgroup Report) established by
`the Administrative Office of the United States Courts (AO),1 and
`new information from other sources discussed below, the Court finds
`
`1 The Subgroup Report is available at https://www.uscourts.gov/sites/
`default/files/combined_jury_trial_post_covid_doc_6.10.20.pdf. While such
`report presents very helpful guidance, it indicates that, like all other
`decisions during this evolving pandemic, “[t]he appropriate time to
`reconvene juries will differ state by state, district by district, and
`perhaps even division by division.” Subgroup Report, at 1.
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 1
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`

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`that an extension of two months is necessary before criminal jury
`trials can safely resume in a manner that guarantees every
`defendant a fair trial in the midst of a pandemic involving a
`deadly and easily transmitted disease. The Court makes such
`finding after countless consultations with various stakeholders,
`including judges from each Division of this Court, lawyers from
`the U.S. Attorney’s Office, Federal Public Defender’s Office, and
`this Court’s Criminal Justice Act panel (CJA panel),
`representatives from the Virginia Department of Health, the
`General Services Administration (GSA), and the U.S. Marshals
`Service, as well as court unit executives and other individuals
`responsible for operations in our Courthouses. The Court’s finding
`is based not only on the time necessary to prepare and retrofit
`our Courthouses and courtrooms, but also to ensure that the
`resumption of criminal jury trials provides the accused defendant
`with the full panoply of trial rights, to include not only the
`right to an in-person live trial, but one where the jury represents
`a fair cross-section of the community and will not be encouraged
`to rush to judgment during deliberations based on a fear of
`exposure to COVID-19. Accordingly, for the reasons explained
`below, criminal jury trials will resume in this District on or
`after September 14, 2020.
`
`
`
`
`
`2
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 2
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`I. COVID-19 data in Virginia and the United States
`For the last several months, the Court has carefully tracked
`relevant COVID-19 statistics, to include the number of COVID-19
`cases, hospitalizations, and fatalities, both in Virginia and
`across the United States. Even though Virginia implemented a
`“stay-home” order in late March of this year, newly reported COVID-
`19 cases did not peak until the end of May. However, a downward
`trend in the “percent positivity” of COVID-19 tests during May
`provided statistical evidence of the benefits of the stay-home
`order occurring prior to the end of May. Therefore, the Court
`issued General Order No. 2020-16 in late May laying out an advance
`timeline for the next steps in the phased expansion of Court
`operations in this District, scheduled to begin on June 11, 2020.
`The planned “first step” involved permitting non-critical/non-
`emergency in-person proceedings in our Courthouses if, and only
`if, an in-person proceeding could be safely conducted and was
`deemed appropriate by the presiding judge based on the
`circumstances of that case and the participants involved in the
`hearing. Drawing from recommendations made by the AO in its
`Federal Judiciary COVID-19 Recovery Guidelines, General Order No.
`2020-16 stated that, even after June 11, 2020, “judges of this
`Court will continu[e] to use video- and tele-conferencing to the
`greatest extent possible, for both civil proceedings and criminal
`
`
`
`3
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 3
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`proceedings authorized by the CARES Act.” Gen. Order 2020-16, at
`2 (emphasis in original).
`In addition to relaxing the standard for conducting in-person
`proceedings, General Order No. 2020-16 continued all civil jury
`trials indefinitely, and indicated that criminal jury trials would
`not resume before July 7, 2020, at the earliest. The General Order
`explained that such date was announced “in order to provide the
`greatest degree of predictability that is possible during this
`unpredictable time,” highlighting that “emerging case statistics
`and the response of local and statewide authorities” will be a key
`factor in the Court’s “later decision as to whether [July 7, 2020]
`remains an appropriate date to safely begin conducting criminal
`jury trials or whether the resumption of such trials must be
`further delayed.” Id. at 16 n.12.
`Following the issuance of General Order No. 2020-16, the first
`two weeks of June showed great improvement in COVID-19 statistics
`in Virginia, including a “sustained downward trend” in newly
`reported COVID-19 cases that satisfied the “gating criteria”
`established by the AO in its Federal Judiciary COVID-19 Recovery
`Guidelines. During this same time, many other states were
`experiencing notable improvements in their COVID-19 statistics,
`with most states, including Virginia, loosening restrictions and
`allowing more businesses to reopen. Unfortunately, over the last
`two weeks, new case counts in Virginia have “plateaued” at an
`
`
`
`4
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 4
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`average of approximately 520 new cases per day, a level that is
`greater than nearly two-thirds of other states, and is similar to
`the number of cases that were reported in Virginia during the third
`week of April, a time when our state, and most of the rest of the
`country, was largely shut down. The average number of newly
`reported COVID-19 deaths in Virginia similarly peaked in late May
`at around thirty-four daily deaths, and trended downward
`throughout early and mid-June until it reached a low of about nine
`daily deaths. Over the last week, however, the number of newly
`reported deaths began climbing again, with the seven-day average
`now standing at seventeen newly reported deaths.
`Equally as concerning in light of the mobility of our
`country’s population, and the fact that federal criminal jury
`trials often involve witnesses from out-of-state, the last ten
`days have evidenced a rapid resurgence in COVID-19 cases and/or
`hospitalizations in a significant number of states, many of which
`implemented less restrictive and/or shorter “stay-home” orders
`than Virginia. This alarming spike in cases demonstrates that the
`“first wave” of COVID-19 infections in this country is far from
`over, as illustrated by the fact that multiple states recently
`adopted policies requiring a fourteen-day quarantine for
`
`
`
`5
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 5
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`individuals traveling from states with a statistically significant
`COVID-19 resurgence.2
`Although Virginia’s recent multi-week decline in new cases,
`followed by a plateau, is certainly encouraging news, Virginia has
`plateaued at a level that still presents a high risk to the public,
`with such sustained plateau further indicating that Virginia is no
`longer progressing toward meeting the “gating criteria” suggested
`by the AO as a guide for the further expansion of Court operations.3
`Accordingly, the evolving conditions across our District, and
`across our nation, including in our neighboring state of North
`Carolina, suggest caution in determining when to safely resume
`jury trials. The ongoing, and even increasing, community spread
`mandates that additional protections be adopted to keep our jurors,
`litigants, lawyers, court staff, and the public safe while inside
`our Courthouses, and the greater the degree of resurgence in our
`
`
`2 To lend some context for the recent resurgence, just two weeks ago, the
`United States reported a daily average of approximately 21,000 new COVID-
`19 cases. As of yesterday, the daily average has increased to over 38,000
`new cases. The diverging viewpoints of different governors over the past
`two months underscores the fact that choosing how and when to reopen and/or
`expand operations is far from an exact science, and risk tolerances play a
`large role in any such decision.
` The AO’s COVID-19 Task Force suggests that courts consider resuming jury
`trials only after “a steady decrease in COVID-19 cases and hospitalizations
`for at least two weeks.” Restarting Jury Selections and Jury Trials in the
`COVID-19 World: A Jury Administration Pandemic Tool Box of Ideas (Task
`Force, June 9, 2020). Such condition is not currently satisfied in Virginia,
`nor is it satisfied in this District (it appears that approximately four
`out of five COVID-19 cases in Virginia are in the Eastern District). The
`new outbreaks occurring in numerous states, to include our bordering state
`of North Carolina, are strong evidence that it is premature to compel jurors
`to report to our Courthouses in the weeks immediately ahead.
`6
`
` 3
`
`
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 6
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`nation, the greater the hurdle that this Court will have to
`overcome to convince each summoned jury that their safety will be
`ensured in our Courthouses.4
`II. Modified Summons Packet
`Consistent with the AO’s Jury Subgroup Report on the safe
`resumption of jury trials, this Court has worked diligently to
`develop a modified juror information packet to be provided to all
`prospective jurors, which includes a reassuring letter describing
`safety precautions implemented by the Court, a summons, and a
`“Supplemental Screening Questionnaire.” Cf. Subgroup Report, at
`2-3 (discussing the need to develop enhanced communications with
`prospective jurors and providing suggested content of a
`“supplemental questionnaire”). Our modified juror information
`packet will be released to the public through publication on the
`Court’s website in the near future, and such packet reflects
`
`4 Virginia is currently in “Stage Two” of the reopening plan announced by
`the Governor of Virginia and is planning on moving into “Stage Three” as
`early as tomorrow. Such planned expansion, however, only sets limits as to
`what activities are permissible, and does not require any business, public
`school, or citizen to engage in any activity that is determined to be unsafe
`by decisionmakers at the local level. Stated another way, such state-level
`guidance merely authorizes certain businesses and members of the public to
`freely make choices about what risks they are willing to tolerate. By
`contrast, the calculus for the safe resumption of criminal jury trials is
`critically different because a criminal jury trial mandates the appearance
`of numerous prospective jurors, as well as other trial participants, and
`once present, such individuals are compelled to stay in the same indoor
`space the entire day and cannot elect to quickly leave the area if the
`exposure risk appears too high (as a member of the public could in a business
`establishment). Moreover, the degree of focus and attention we ask our
`jurors to maintain throughout the entire trial process, a focus and attention
`that every accused defendant deserves, is simply incomparable to the focus
`involved when a member of the public makes a relatively brief voluntary
`visit to a store or restaurant during the pandemic.
`7
`
`
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 7
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`multiple rounds of feedback from other judges of this Court, our
`jury administrator, the U.S. Attorney’s Office, Federal Public
`Defender’s Office, and the Court’s CJA Panel Attorney District
`Representative, to ensure that the mailing complies with all
`applicable laws and procedures, and achieves the greatest benefit.
`Additionally, recognizing the critical need to consider local
`conditions in Virginia, the Court has relied on guidance from local
`health experts regarding the safest manner in which to resume jury
`trials during a pandemic involving the ongoing community spread of
`a highly infectious and deadly disease.5 Drawing on
`recommendations from local health officials, who advise that a
`multi-layer defense system is necessary to safely resume jury
`trials,6 the modified juror information packet was designed, in
`
`
`5 The undersigned judge is not an infectious disease expert, and like many
`public officials, the Court has devoted countless hours to grappling with
`two consistent and disturbing truths: (1) the contours of the COVID-19
`outbreak change on a weekly, if not daily, basis, with many indicators at
`best providing a window into the situation a week to ten days earlier, which
`can result in research and outside advice becoming outdated as soon as it
`is received; and (2) health experts are simply not in agreement over
`countless aspects of the pandemic in light of the “novel” nature of this
`virus, and conflicting expert advice increases the difficulty of, and the
`time needed to make, critical decisions that could impact the lives of
`persons called into our Courthouses. These challenges therefore mandate
`that the Court take small and calculated steps as it expands operations.
`
`6 Health officials advised on the benefits of health screenings performed
`by medical personnel at our Courthouse entrances, the use of a pre-screening
`questionnaire to identify prospective jurors with pre-existing health
`conditions, and the need to develop modified trial procedures that preserve
`social distancing. However, in addition to such issues, health officials
`also raised concerns regarding the documented fact that the COVID-19
`pandemic has disproportionately impacted African-Americans, and other
`minority communities, which has the potential to reduce the diversity of
`the panel of prospective jurors that appear for jury service.
`8
`
`
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 8
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`part, to reduce the number of potentially infectious or otherwise
`COVID-related unavailable prospective jurors that arrive in person
`at our Courthouse only to be summarily deferred to a later date
`for jury service. The packet is therefore intended to decrease
`the COVID-19 exposure risk, and the anxiety level, of individuals
`that are qualified to serve on a jury in the coming months.
`III. Juror Response Period and Availability
`In order to ensure that individuals that are randomly selected
`to report for jury duty actually receive their summons in the mail
`and have sufficient time to return it, the Court typically mails
`a letter and summons to prospective jurors approximately seven
`weeks prior to the first anticipated report date. The jury
`administrator uses the first six weeks of this time to receive and
`review responses, research inaccurate addresses for any summons
`that is returned as undeliverable, respond to questions from
`members of the public that have received a summons, compile and
`evaluate requests for excusal and/or deferrals, and mail a follow-
`up summons if none is returned. The jury administrator then
`provides the list of qualified jurors, and list of those with
`discretionary excusal/deferral requests, to the presiding judge
`within the week before the jury’s anticipated report date. In
`consideration of speedy trial concerns, and in an effort to
`expedite the resumption of criminal jury trials in this District,
`this Court considered shortening its typical return/review period
`
`
`
`9
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 9
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`for the summons and questionnaire. However, after careful
`consultation with this Court’s experienced jury administrator and
`other sources, the undersigned judge found it necessary to retain
`such period in order to ensure that the individuals that do report
`for jury duty represent a fair cross-section of the community.
`First, the addition of the jury questionnaire, the number of
`follow-up questions that it will likely generate, and the vast
`increase in the number of summonses being mailed out due to the
`challenges of obtaining an adequate spectrum of jurors, all counsel
`against shortening the response period. Second, consistent with
`concerns raised by public health officials and the defense bar,
`the Court has grave concerns that shortening the timeframe for
`responses may reduce the diversity of our jury pool. Notably, in
`addition to such concerns raised by local health officials, on
`June 15, 2020, the CDC issued a report noting that: (1) the
`distribution of identified COVID-19 cases across various
`populations suggests that African-Americans and Hispanic persons
`“are disproportionately affected by the COVID-19 pandemic”; and
`(2) there are “higher proportions of black and Hispanic persons
`among hospitalized COVID-19 patients than were in the overall
`population.” See https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/
`mm6924e2-H.pdf. Consistent with such documented findings,
`retaining the typical return period is necessary to allow the
`greatest number of individuals who are struggling with such
`
`
`
`10
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 10
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`disproportionate medical impact, as well as any associated
`disproportionate family circumstance and economic impacts, to
`receive and return their summons and make the necessary
`arrangements to appear for jury service in September. See Subgroup
`Report, at 4 (addressing the need to “[p]lan for a higher number
`of jurors requesting to be excused,” and recommending that courts
`“monitor closely, and maintain statistics on, the impact these
`excusals and deferrals may have on minority representation”).
`With the retention of the typical response period, and the
`mailing of the summons packets in July, the judges presiding over
`the first criminal jury trials to resume will receive prospective
`juror lists, and what will likely be a substantial number of
`requests for excuse/deferral, in late August. This timeline will
`provide some additional time for the presiding judge to review the
`requests for excuse/deferral, and allow the jury administrator to
`“backfill” the list to provide a substitute name for each
`prospective juror that is excused/deferred.7 The adopted timeline
`will also preserve for the presiding judge the option, in
`consultation with defense counsel and counsel for the Government,
`to send out a case-specific agreed-upon jury questionnaire to those
`on the finalized list in order to further limit the duration of
`
`
`7 The AO’s COVID-19 Task Force has suggested that courts consider “add[ing]
`additional time between summonsing and having jurors report, to provide time
`to process excuses, etc.” Restarting Jury Selections and Jury Trials in
`the COVID-19 World: A Jury Administration Pandemic Tool Box of Ideas (Task
`Force, June 9, 2020).
`
`
`
`11
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 11
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`questioning and number of jurors required to sit in one of our
`courtrooms to answer questions regarding their qualifications.
`While not a required step, allowing sufficient time for counsel
`and the presiding judge to discuss whether such step is appropriate
`in the first cases to be tried by a jury in this District during
`the deadly pandemic furthers the interests of justice as it
`preserves the ability for the parties and Court to work together
`to streamline what will surely be an atypically long and
`complicated voir dire process due to social distancing and face
`covering requirements.
`Additionally, even if the presiding judge does not utilize a
`case-specific voir dire questionnaire, in light of the COVID-19
`summons health questionnaire’s request that jurors update their
`responses as their situations change, there is a high likelihood
`that there will be a need for the jury administrator to perform
`some follow up screening, either by phone or by mail, in the weeks
`prior to trial in order to address recent illnesses and COVID-19
`family situations. Cf. Subgroup Report, at 3 (acknowledging that
`while a supplemental questionnaire will be mailed “weeks prior to
`trial,” there will be a need to conduct further follow-up prior to
`trial). Moreover, in light of the recent alarming spike in COVID-
`19 cases in other states, this Court also recognizes that it may
`be necessary in the future to again restrict access to our
`Courthouses for individuals who have traveled to identified COVID-
`
`
`
`12
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 12
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`19 “hotspots” during the two weeks prior to entry—thus requiring
`potential follow-up with jurors by our jury administrator. If it
`is necessary to reimpose such restrictions, the list of states
`presenting a grave enough concern to require a fourteen-day
`quarantine after travel will likely need to be updated at least
`twice a month in light of the speed at which outbreaks emerge. It
`is therefore impossible to effectively address such issue until
`two to three weeks before the start of trial. All of this makes
`for a time-intensive process leading up to trial.
`IV. Ensuring a Fair Trial
`As suggested above, the Court’s decision to extend the date
`for resumption of criminal jury trials to September 14, 2020,
`reflects feedback the Court received from the defense bar, to
`include concerns raised by defendants that jurors need to have a
`lengthy period (within reason) to become comfortable with the idea
`of sitting in an enclosed courtroom, with a group of strangers,
`for the entire day. The Court’s CJA Panel Attorney District
`Representative communicated with the Court on how, and when, to
`safely resume jury trials in this District and provided the Court
`with a copy of a June 2020 report issued by the National
`Association of Criminal Defense Lawyers (NACDL Report), with the
`report discussing the “unprecedented public health risks caused by
`the COVID-19 pandemic” and the “enormous challenges for court
`operations especially in criminal matters where liberty, and in
`
`
`
`13
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 13
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`some venues, life are at stake.” NACDL Report, at 2.8 The NACDL
`Report discusses the inherent conflicts that arise when
`endeavoring to preserve all of an accused defendant’s rights and
`recommends that best practices for resuming trials “need to
`prioritize evidence-based health and safety measures and the
`preservation of fundamental rights over the ministerial needs of
`docket management.” Id. at 7. The NACDL Report therefore finds
`that “Courts must recognize the criminal accused’s right to speedy
`trial might be subjugated based on the current state of affairs
`including lack of a vaccine, substantial rates of infection and
`mortality, and economic hardship.”9 Id.
`While this Court does not individually opine on the various
`conclusions provided in the NACDL Report, the Report provides very
`useful context from the perspective of the individuals whose role
`in the trial process is most directly centered on protecting the
`rights of accused defendants, including their right to a speedy
`trial. This critical viewpoint must be balanced by the Court with
`all of the other relevant evidence to determine not only how, but
`
`
`8 The NACDL report is available at https://www.nacdl.org/getattachment/
`56802001-1bb9-4edd-814d-c8d5c41346f3/criminal-court-reopening-and-public-
`health-in-the-covid-19-era.pdf.
` The report actually goes even further by concluding that, at least as of
`early June, and “particularly in areas of significant community-based
`transmission,” the resumption of jury trials would be “reckless and
`irresponsible” and would “undermine the truth-seeking purpose of trials
`given the well-documented and understandable fear, panic and uncertainty on
`the part of jurors, witnesses, court staff, deputies, judges, prosecutors
`and defense counsel.” NACDL Report, at 8.
`14
`
` 9
`
`
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 14
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`when to resume criminal jury trials in this District. While the
`safety concerns of jurors is a critical point, the safety concerns
`of defense counsel is equally as important given that preparations
`for a criminal jury trial typically involve defense counsel
`spending numerous hours in close contact with their clients,
`witnesses, government representatives, and others. Current
`conditions at different jails make it more difficult, and more
`time consuming, for defense counsel to consult with their clients
`in preparation for trial. Similarly, Government counsel’s need to
`coordinate movement of incarcerated cooperating witnesses, and
`other witnesses from out of state, presents very different
`challenges in the midst of the pandemic that did not exist just a
`few months ago, not the least of which is transfer of incarcerated
`witnesses between facilities with COVID-related restrictions.
`Having considered the NACDL Report, the AO’s Jury Subgroup
`Report, and input from local stakeholders and local health
`officials, the Court concludes that conditions specific to this
`District do not warrant the resumption of jury trials in July or
`August, months during which numerous additional steps will be taken
`to prepare for the resumption of trials in early September. See
`Subgroup Report at 2 (“Jurors must be given reasonable assurance
`of their safety before participating in the jury process. They
`must be comfortable during the course of a trial, and be able to
`focus on the evidence and not the risk of a COVID-19 infection.”).
`
`
`
`15
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 15
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`While initially improving, and then stagnating, conditions in
`Virginia created the obligation (and ability) for this Court to
`continue forward with the complicated process of convening
`criminal jury trials in the midst of a deadly nationwide pandemic;
`however, the Court cannot prioritize speed over the critical steps
`needed to preserve every accused defendant’s right to a fair trial.
`For all of these reasons, to include the medical and financial
`impact of COVID-19 being suffered by large swaths of the public,
`and the disproportionate impact shouldered by African-American and
`Hispanic communities, the Court finds that retaining the six-week
`return period, and providing sufficient time for any follow-up
`“pre-screening” of jurors authorized by the presiding judge,
`strikes the proper balance between defendants’ speedy trial rights
`and the critical and fundamental need to ensure a fair trial with
`a focused jury that can operate without fear and is selected from
`a fair cross-section of the community.10
`
`
`
`10 While mindful of the differences in the typical state and federal criminal
`jury trial, this Court has monitored the decisions of the Supreme Court of
`Virginia regarding the resumption of state court proceedings in Virginia.
`Just last week, the Supreme Court of Virginia issued its “Sixth Order”
`extending the declaration of judicial emergency, and announcing: (1) that
`the Chief Justice has created a Jury Task Force to address, in consultation
`with the Virginia Department of Health, how to safely resume jury trials;
`and (2) that “each chief circuit court judge shall develop a plan for their
`circuit that describes how and when they will be able to safely conduct jury
`trials” with such plan due to the Chief Justice by August 17, 2020, and jury
`trials suspended until at least the time that individual plans are approved.
`http://www.vacourts.gov/news/items/covid/2020_0622_scv_sixth_order.pdf
`(emphasis added).
`
`
`
`16
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 16
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`V. Additional Preparations
`In addition to the time necessary to research, develop,
`distribute, receive, and analyze juror questionnaires, the Court
`has devoted countless hours working toward planning and modifying
`our physical spaces to allow for the safe resumption of jury
`trials. In light of the recent plateau in new cases in Virginia,
`and the concerns raised in the AO Jury Subgroup Report, the NACDL
`Report, and most importantly, those raised by local attorneys11 and
`health officials, the resumption of criminal jury trials in July
`or August would be premature in this District.
`Notably, many of the protections that will be in place in
`September, as recommended by local health officials, required
`multi-week or multi-month lead times in order to ensure the
`greatest protection for our jurors, witnesses, defendants, and all
`other individuals involved in the trial process. This includes
`identification of at least one courtroom in each Division to be
`used for criminal jury trials and conducting a walkthrough study
`to determine how to best retrofit such courtroom to allow for
`social distancing without materially impacting the ability of all
`participants to hear and see the evidence. Physical changes
`
`
`11 While the Court has no involvement whatsoever in such matters, it is the
`Court’s understanding that additional discussions are/will be occurring
`between counsel in many pending criminal cases in our District to determine
`whether an agreed resolution of the case is possible. For those that are
`not resolved, the Court will work with counsel to develop a schedule to try
`cases as expeditiously as possible, subject to Courthouse limitations.
`17
`
`
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 17
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`include, among other things, the installation of plexiglass
`partitions, some of which needed to be special ordered.12
`Separately, the Court’s IT Department has assisted in
`researching and purchasing “headset kits” that will allow for
`confidential communications in our courtrooms without the need for
`close-contact. These headsets can be utilized by both defense
`counsel and clients for their own private communications, for side-
`bar conferences depending on varying courtroom layouts and the
`preferences of the presiding judge, and for juror questioning where
`a potential juror would normally discuss a matter outside the
`hearing of other jurors while gathering closely at the bench with
`counsel and the presiding judge. The IT Department will be heavily
`involved in testing such equipment to ensure it functions properly
`and in training courtroom personnel on its use to allow for
`streamlined proceedings during trial. Additionally, for some of
`our courtrooms, other technological changes are being made, such
`as putting technology in place to project the image of the witness
`onto a screen in the gallery as an additional aid for juries that
`will be seated there during trial (to allow for social distancing).
`In determining the safest way to manage a large number of
`people in the same enclosed room, the Court has carefully analyzed
`
`
`12 Like many items during the pandemic, plexiglass partitions are not only
`presently in high demand, but specially sized dividers that are manufactured
`through “special order” have proven necessary for some of the courtrooms in
`our District, and have come with delivery lead times of up to ten weeks.
`18
`
`
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1067, Page 18
`
`

`

`a COVID-19 courthouse safety report of an epidemiologist from
`within the
`Fourth
`Circuit,
`and
`guidance
`provided by
`representatives from the Virginia Department of Health. On-site
`visits by local health personnel may occur in at least some of our
`Courthouses. The determination of an appropriate “health
`screening” procedure to use during jury trials is also