Compiled by Sarah Halverson
TDCAA Communications Director in Austin
If anything is true about people who work in a Texas prosecutor office, it’s that y’all are a resourceful lot. Prosecutors and staff are accustomed to making the most of what they have, whether it’s limited time, personnel, or funds, and those limitations often lead to remarkable creativity and smart solutions to pesky problems.
We wanted to find out how everyone is operating amidst the still-raging pandemic, and it’s been no small feat as some counties are changing course week by week. To bring this information to our entire service group, we asked several prosecutors across the state the same series of questions: how their jurisdictions are conducting trials (or not conducting trials), what the biggest difficulties are, whether pleas are moving forward, how the shutdown is affecting defendants on bond, and whether anything good has come from this whole crisis. We share their answers here so that everyone might benefit from their setbacks and successes—and there have been successes. Prosecutor office personnel, after all, are a resourceful bunch.
Has your office conducted any trials since the COVID-19 shutdown?
Benjamin I. Kaminar
Assistant County & District Attorney in Lamar County
Yes, we conducted a felony jury trial in mid-November. None of the trial was conducted remotely; however, our defense attorneys have been using Zoom to meet with defendants in jail, including with this trial.
Erica Morgan
Assistant District Attorney in Bell County
We have not conducted any trials. We had two scheduled before the court, but each fell through due to concerns about adequate representation in the remote process. Specifically, the defendant was to appear remotely from the jail, and there was not a way for his attorney to be with him in the jail facility. Others in my office have conducted suppression hearings and outcry hearings remotely. We have a death penalty case pending, and there have been many hearings on pretrial motions conducted remotely for that case.
We’ve thought through the logistics of having a trial and examined how that would look procedurally, and if completed, would the constitutional rights of the accused remain protected? We do not believe we can safely hold a trial and address the health concerns of the participants and public at the same time. We have serious concerns about selecting a jury of one’s peers if we are automatically excusing prospective jurors who are older, who have health concerns, or who live or work with such a person. Once those individuals are excused, is the remaining panel really a representative cross-section of our community from which to select a fair and impartial jury?
Those concerns do not disappear once the jury is selected. We would still have a concern of a juror being exposed or infected, and then exposing the rest of the jury as trial is underway. That scenario happened in another county and resulted in a mistrial.
Jury selection itself gives rise to additional constitutional concerns. How are the jurors protected—with face shields or face masks? Are the attorneys able to communicate effectively and judge the venireperson’s demeanor with shields or masks in place?
If we did select a jury and moved forward, we would limit the number of people allowed in our courtrooms at one time. That means that family members of the accused or victims would potentially be excluded from watching in-person. We are cognizant of the fact that people are reacting to this pandemic differently. Some people are avoiding public places and large gatherings and wearing masks. Some are not. With that in mind, we have to consider that every person we compel to enter our courtroom is at a potential risk of exposure.
We have considered the option of holding a trial or portions of the trial remotely, but we do not think that this option is feasible. Whether it’s a prospective juror or a witness who is appearing remotely, the ability to communicate effectively and judge that person’s credibility is never going to be the same as viewing the person live. For witnesses especially, there is no way of knowing if there is someone else speaking with the witness during his or her testimony, or if the witness is referring to a document or other item that is not available to the attorneys. I haven’t even mentioned the potential for technical difficulties.
All of the various concerns we aren’t able to adequately address are potential appellate points down the road. We could jump through all of these hoops and make a trial happen only for a later court to say it wasn’t good enough—do it over.
Tyra McCollum
Assistant District Attorney in Fort Bend County
Yes: four complete certification hearings and one determinate sentencing disposition hearing, all for juveniles. All testimony has been received in-person. In one hearing, the court reporter worked remotely though Zoom and was connected through the judge’s platform. She was able to hear us and we could hear her, though we couldn’t see her.
Adam Poole
Assistant Criminal District Attorney in Galveston County
We’ve had two trials (for aggravated robbery and murder), both done live except one witness’s testimony done virtually because she was exposed to COVID and her employer ordered her quarantined. That witness was an expert, and we conducted both a Daubert hearing and her trial testimony remotely. The defense did not object. There were technical difficulties on her end, which caused a delay, and then audio difficulties on our end, which made it difficult for the jurors to hear her.
Scott Turner
Assistant District Attorney in Ector County
All of our judges except for one shared the opinion that we should shut down. The one judge devised a procedure that he believed would allow a jury trial to be conducted in way that did not risk the safety of the jurors and the parties. This judge still wanted to proceed with trials even after there were problems with his devised procedure, which the local health department pointed out at a hearing. Specifically, the health department recommended that the defendant be tested for COVID-19 prior to any proceedings. However, the morning the trial was scheduled to begin, the jail notified the judge that the defendant had contracted COVID-19 while in custody, and the trial was continued. This was after the defendant’s attorney had spent the previous weekend preparing for trial with his client. It should also be noted that the defense attorney also contracted COVID -19 days after his client did, spent weeks in the hospital, and eventually passed away from the virus.
Nathan Wood
Assistant District Attorney in Brazos County
On August 3, 2020, we picked a jury for the trial of the State of Texas vs. Justin Byrd. The defendant had invoked his right to a speedy trial under the Interstate Agreement on Detainers in January of 2020. Let that sink in for a minute knowing what you know about this year. The Byrd trial wasn’t just a test case—it was the first case of many that we have tried during the pandemic. Byrd went first because of his speedy trial issues, but his was only the first in a long list of cases we’ve already tried since August.
Hilary Wright
Assistant Criminal District Attorney in Dallas County
We have had a trial by court, but we have not held any jury trials in Dallas County since the second week of March 2020. In a recent bench trial, both the pretrial portion and the defense witness testimony were conducted remotely.
What has been the hardest part about holding a live trial?
Mike Holley
First Assistant District Attorney in Montgomery County
We have experienced three difficulties. The first is jury selection. A large group of people creates some logistical and safety issues. For example, spreading jurors out makes them safer but renders them more difficult to hear and see. The second difficulty is that lay witnesses are understandably more concerned about testifying during a pandemic. Testifying at trial is always a little daunting, but testifying (and traveling to testify) during a pandemic makes this concern even more pronounced. The third difficulty is the multiple appellate issues raised by defense counsel concerning trial proceedings. These issues require careful and considered responses. All of these obstacles are surmountable.
Adam Poole, Galveston County
First, the unknown. For example, a witness discovered her husband had COVID the day before her scheduled testimony, so we had to reschedule her for later in the week and would have needed to take additional steps to obtain her live testimony had the defense and judge not allowed for remote testimony. Any witness can test positive at any time. If one of the attorneys tests positive, it might require mistrial.
The acoustics have also been hard. Some witnesses have worn masks, and most jurors wear masks, muffling their speech. Everyone spreads out more so we all have to speak up. Jury selection in particular requires a lot of repeating questions and answers and reminding people to speak loudly.
And lastly, the reluctance of witnesses to participate has been difficult. Multiple witnesses in each case were reluctant to testify in person or were directed by their employers to avoid it.
Raneca Henson
Assistant Criminal District Attorney in Galveston County
The hardest part has been working out the logistics of voir dire and seating in the courtroom for the trial. Fortunately, our office, the clerk’s office, courtroom staff, and defense attorneys have all worked together to develop a smooth procedure for conducting trials. For example, we do voir dire in our Jury Assembly Room, rather than the courtroom. During trial, the courtroom has a layout that allows everyone to socially distance.
Benjamin I. Kaminar, Lamar County
From an overall perspective, jury selection is the biggest challenge. We attempted to summon a panel in October, but after the mandated COVID questionnaire, we didn’t have a large enough panel remaining. In November, we summoned two panels, one in the morning and another in the afternoon. We had to combine the qualified jurors from the first panel with the second to get enough to proceed with jury selection.
Maintaining social distancing during trial was also a challenge. We reconfigured our courtroom somewhat to allow more space for the jury. During recesses, they were divided between two jury rooms, and for deliberations, everyone vacated the courtroom so the jury could assemble there while maintaining social distancing.
Specifically for us as prosecutors, the actual in-trial adjustments have been relatively minor. However, they tend to throw you off-stride and cause everything to slow down. We typically publish photos and document exhibits via PowerPoint anyway, which saved us from making jurors don and dispose of gloves to pass an exhibit around. The defense was either unaware of, unable to, or unwilling to use an Elmo to publish its documents, which did slow things down a bit.
Tyra McCollum, Fort Bend County
The logisitics were challenging, but the two most important to me were:
1) handling evidence with the least amount of hand-to-hand contact. We utilized CDs and flash drives, an Elmo presenter, laptops, etc., for in-court production and publication—basically any technology that would avoid hands-on contact from multiple people, and
2) social distancing and effectively presentation and advocacy while wearing face masks. It was hard to make sure that everyone in the courtroom and witnesses could hear. One of my juvenile cases involved a murder charge, so managing social distancing so that the victim’s family and the juvenile respondent’s family all could be in the courtroom was challenging.
Maritza Sifuentes-Chavarria
Assistant District Attorney in Brazos County
We picked our first jury in a church sanctuary that had been converted to a commissioners court and community center. Sound was meant to go from the pulpit to the pews, not the other way around. The attorneys spoke with microphones from the floor at the front of the first pew, and the judge and the court reporter sat up on the stage. When jurors were called on with questions, they were asked to stand, pull their masks aside, and respond. Having jurors stand and speak without masks seemed like a fairly straightforward procedure, but in our opinion, it had a chilling effect on the interaction between jurors and attorneys. Being spread out across several rows and with several feet of space between each person was isolating and caused jurors to be less vocal about their opinions unless directly called on. The fast-paced, dynamic “popcorn” nature of past jury selections was disappointingly gone.
After a while, my co-counsel, Nathan Wood, and I noticed that I was missing jurors on the end of the left section and the mid-to-back-sections of the room. The areas I missed were the farthest away and hardest for me to see or hear. So we switched it up on the spot. I started questioning the room in a “left section, middle section, right section” format to make sure I was talking to as many jurors as possible. This method let me zero in on jurors who had been flying under the radar. Now we were talking to people in manageable groups instead of running up and down rows attempting to reach people in numerical order.
Nathan Wood, Brazos County
A couple of weeks after our first trial in August, another case ended in a mistrial after an inmate, who tested positive for COVID-19, was accidentally transported to the courthouse. Since then, though, masked jury trials are almost the new norm for us. The precautions we take in these cases are uncomfortable and inconvenient, but they are extremely important to keep everyone safe.
Hilary Wright, Dallas County
In our trial, the defendant was wearing a mask that covered most of her face. The complainant has known the defendant for more than 40 years, but he had a hard time identifying her with a face covering. I had him step down from the witness stand to get a better look. He was eventually able to identify her.
Also, the defense witnesses testified outside in a parking lot near Love Field Airport. (These witnesses were all homeless, and the airport is near where the offense occurred and where the witnesses lived.) While they testified, we could hear planes flying overhead. We had to pause to wait for the planes to pass over. It was distracting and funny.
Casey Smith
Assistant District Attorney in Harris County
Communication challenges, on top of normal, inevitable, unexpected trial challenges, were the hardest part about live trials during COVID. During a trial, challenges arose when speaking with co-counsel and the judge through masks and face shields. We used headsets to speak with opposing counsel and the judge, but it took some effort to get all the headsets charged every day and for them to operate properly at the same time. But we eventually got everything to work in the end.
How have you been able to proceed with pleas and pretrial hearings? What have you had to hold off on?
Hilary Wright, Dallas County
We have been able to conduct plea hearings, bond hearings, and probation revocation hearings over Zoom and Microsoft Teams. These hearings would not have been possible without our plea documents being converted into digital form, and the use of Adobe Sign has been vital in this process for most courts. Additionally, Dallas County has two felony and one misdemeanor magistrate courts that have been handling in-person pleas. An ADA drafts the paperwork and emails it to the defense attorney, who signs it and brings it to court to have the jailed client sign and give to the magistrate judge for the in-person plea—where everyone is wearing personal protective equipment.
Raneca Henson, Galveston County
We handle jail pleas remotely. A few days before the plea, the prosecutor sends the defense attorney all plea paperwork; the defense attorney then meets with the client at the jail. After this, the plea paperwork is forwarded to the district clerk’s office. The day of the plea, the judge and attorneys all log in to a website remotely. The inmates remain in the jail, but the deputies also have access to the website, and they log in for the inmates for the plea.
Erica Morgan, Bell County
We have hearings for pleas, sentencings, writs, and motions concerning bond. We’ve even managed to do many of these hearings despite them being contested in nature. We call witnesses to appear remotely and prepare our exhibits for the court and the other party in advance. Some hearings have had three or four witnesses testify per side. The attorneys make a judgment call on how complicated is too complicated to hear the case remotely.
There have been a limited number of cases in which we have had hybrid live-remote hearings. The hearing is always broadcast live on the county’s website so that it is always considered public (www.bellcountytx.com/county_government/district_courts/court_hearings_live stream_links.php). There was a limit of 10 people who could be present in the courtroom at a given time (including attorneys, courtroom personnel, and the defendant). That allowed the defense and State to have two spectators each during witness testimony (that was also live). In one case, this was done specifically so that the victim’s family could be present for the defendant’s sentencing.
Benjamin I. Kaminar, Lamar County
We’ve been able to proceed with pleas, which are still done in-person. Most pretrial hearings have been postponed, unless they’re related to bail. Most other things we are holding off on unless absolutely necessary.
Mike Holley, Montgomery County
We have been able to proceed with all hearings that do not require a jury using a combination of remote, in-person, and distanced measures. Jury trials have not been forbidden but for a variety of understandable reasons have not occurred with any frequency.
Casey Smith, Harris County
We have been doing pleas and hearings as normal. Inmates are still being brought over from jail to do pleas in court, and defendants on bond still come to court to do pleas. There are some remote docket pleas that happen from jail. We do many hearings including pretrial, MRP/MAJs, PSIs, bond hearings, etc. remotely via Zoom. We haven’t had to hold off on any scheduled pleas or hearings.
Scott Turner, Ector County
We have been doing guilty pleas consistent with the local gathering and social distancing guidelines. We do one guilty plea at a time, and we do not allow more than 10 people in the courtroom. Everyone is required to wear masks. Some courts are still doing pretrial hearings, but they are happening one at a time as well.
Tyra McCollum, Fort Bend County
Because juvenile detention hearings are required within 48 hours of detention, we had to pivot quickly. We have been using Zoom for those proceedings since early March, and they are now second nature. We generally do juvenile adjudication pleas through Zoom, but on the serious and violent offense cases, the pleas are done in-person so that the court can have appropriate impact on the juvenile.
What has been the hardest part about not doing any trials, or only very few trials?
Benjamin I. Kaminar, Lamar County
Inmates, inmates, inmates. We aren’t pushing to resolve bond cases unless they are pleas to probation, but even with reduced or lenient offers, very few of our jail cases are resolving.
Tyra McCollum, Fort Bend County
The pandemic has made it much more difficult to bring cases to conclusion. Juvenile cases don’t have the latitude to linger when the respondents are in custody. We have to exercise more flexibility in the handling and negotiation of those cases so that they can resolve. The potential backlog after this is over may be problematic.
Scott Turner, Ector County
Jury trials are the first thing people associate with being a lawyer. They are also the most scary, exciting, infuriating, and worthwhile part of the profession, in my opinion. Jury trials give me an opportunity to problem-solve in a creative way. If you take trials away from this job, it becomes very boring.
Mike Holley, Montgomery County
Victims who want closure cannot obtain that closure in a reasonable amount of time. For example, in family violence cases, the delay is accompanied by several negative consequences to all parties. In other serious cases, victims seeking some redress are told they have to wait, which is difficult for them for many reasons. As with any delay, cases do not tend to become better with age, so finding difficult-to-locate witnesses and keeping tabs on them during a pandemic has been something of a challenge.
We are also concerned about those defendants in custody who need some resolution to their cases and the effect on the county jail resulting from a backlog of trials and intermittent transport of defendants to prison.
Erica Morgan, Bell County
Other than the anxiety of knowing the backlog that awaits me next year, the hardest thing for me personally has been the ability to prioritize my large trial-centered projects. There’s a feeling of overwhelming futility whenever I find myself opening a file to organize my exhibits and witness list. I begin to wonder if this is the case I should be focusing on. What if, next year, it’s a different case that gets priority? What if this case ends up pleading after all this time? Aren’t there more urgent things I could be working on?
Hilary Wright, Dallas County
The hardest part is explaining to grieving families and victims of violent crimes that they will have to wait an indefinite amount of time for justice. The cases get colder, and the witnesses’ living situations get more complicated. We can foresee a great difficulty in gathering up the witnesses when the trials can safely begin again. How much time will have passed by then?
Another hard struggle is whether to keep in jail violent offenders who want their cases disposed of only by jury trial. In Dallas County, we are working hard to re-evaluate all jail cases for a “best offer under these circumstances.” Innocent until proven guilty is a well-known concept, but it’s a difficult one for victims to reconcile when we discuss a bond for a case involving murder, sexual assault, kidnapping, etc.
How is the shutdown affecting bond for defendants awaiting trial?
Erica Morgan, Bell County
We are definitely receiving more requests for reduced bond. The defense attorneys are emphasizing that the period of the defendant’s incarceration “pretrial” is extended now, with no definite end in sight. In some cases this is persuasive to the judges; in others it is not. We have continued to argue that the standard for setting bond based on an individualized analysis of the defendant and the case has not changed. In most cases, the existence of the pandemic and the length of the delay are considered as part of the bigger picture in setting bond, as it should be.
Benjamin I. Kaminar, Lamar County
Defendants whose cases would be subject to the 90-day PR bond provisions (i.e., drug cases pending lab analysis) are being PR-bonded earlier rather than waiting for the inevitable.
Tyra McCollum, Fort Bend County
Juveniles are not entitled to bond; however, we have instituted new considerations about youth being detained and the types of offenses that will now warrant continued disposition if a trial is requested.
Scott Turner, Ector County
When the Office of Court Administration (OCA) first came down with its executive orders regarding hearings and trials, my office reviewed all of the cases of the defendants in custody to evaluate the appropriateness of their bonds. We were hoping to balance the safety of the community from both a criminality and a health standpoint. It was our intent to keep in custody only those defendants who posed a safety threat to the community. As a result, I have not seen that we have had many requests for bond reductions that have been granted. However, it has not stopped the flood of pro se motions.
Hilary Wright, Dallas County
In Dallas County, bond jury trials have been postponed indefinitely. They are not going to meet the Texas Supreme Court requirements for an in-person procedure during COVID, especially with the infection rate in our county being so high.
Mike Holley, Montgomery County
Judges have tended to grant more personal recognizance bonds, particularly for misdemeanor cases, but the overwhelming number of defendants in custody awaiting resolution of their cases are charged with serious felonies. Almost all defendants charged with misdemeanors and low-level felonies have been released on personal recognizance or very low bonds.
Have any good things come from conducting trials during COVID?
Raneca Henson, Galveston County
COVID has made us think on our feet and adapt.
Casey Smith, Harris County
The absolute best thing about the two COVID trials that ADA Tyler White and I tried was being able to finally get justice for our victims. Both trials were child sexual abuse cases and these girls, who are now teenagers, had been waiting a very long time to finally start to begin their healing process. I’m glad we could help do that for them.
Tyra McCollum, Fort Bend County
Not really—although I will say we have assessed with even greater scrutiny the case that really needs to go to trial versus the case that we really need to try to work out.
Erica Morgan, Bell County
Our elected District Attorney, Henry Garza, stepped up and took the lead on ensuring that justice in Bell County didn’t grind to a halt. Practically overnight, our office instituted secure methods of videoconferencing with victims and witnesses, exchanging paperwork for signatures with law enforcement and defense counsel, and holding court via video conference. It was Mr. Garza and our IT department who coordinated with the company that we use (Lifesize) to make sure that everyone in the county was using the same program and had access to it. He also convinced our judges early on to subscribe to remote court via videoconference so that cases could continue to be heard and disposed. All of this served to limit contact with those outside our office, but also allowed for attorneys and staff to work remotely. These new measures let us continue carrying the same workload as before with a surprisingly slight slowdown.
For me personally, videoconferencing witnesses has been the biggest upside. My previous choices were a phone call or an in-office meeting. Videoconferencing allows me to have a face-to-face conversation and build rapport that I couldn’t get from a simple phone call. The victims do not need to make arrangements with jobs, childcare, and transportation to attend an in-person meeting. Whenever rescheduling is necessary, even last minute, there’s a lot more flexibility now than in the past.
Having paperwork exchanged and signed electronically and then e-filed with the courts speeds that process up and allows our office to track its whereabouts in the process.
Scott Turner, Ector County
I think that the pandemic has really made us all look closely at how we handle our personal health. As prosecutors, we are exposed to numerous people throughout an ordinary day. It should not have taken a pandemic for us to realize that we should wash our hands several times daily. We also should not be afraid stay home when we are sick. How many of us have come into work when we really should stay home because we do not want to miss a hearing or push work off on someone else? These days, the office is likely to send you home if you cough more than three times an hour. I think this is a good thing because the cases and people whom we deal with deserve that we do our best, and despite popular opinion, we are not our best when we are sick.
Maritza Sifuentes-Chavarria, Brazos County
There are now physical barriers in the form of face masks, social distancing protocols, and juror seating arrangements that can create obstacles in connecting with jurors—but all hope is not lost. We can overcome COVID challenges. It just takes practice, patience, and preparation. Knowing some of the pitfalls, understanding the complications, and preparing for unexpected situations will better equip us to try our cases as usual and fight for justice as it was in a time without COVID. Prosecutors are used to overcoming obstacles and balancing interests on the path to justice. We study, train, and prepare for unpredictable moments that arise during trial. Our commitment to the duties of Article 2.01 requires it.
What courtroom adaptations have you made in response to the pandemic that you anticipate continuing to use once normal court activity resumes?
Scott Turner, Ector County
I practice in a community that can be slow to embrace technology. As a result, only two judges have been open to conducting hearings via Zoom or some other type of internet-based program. However, I hope that if the current situation continues, the other judges will realize that this type of technology can be useful and will be more open to using it in the future.
Benjamin I. Kaminar, Lamar County
Our judges have installed plexiglass sneeze guards that might remain, but most of our courtroom adaptations make things harder on conducting trials, so they probably won’t last.
Erica Morgan, Bell County
I can’t speak to what the courts will decide to keep, but I hope that using a videoconference for certain witnesses will be less of an issue in the future because the judges and local attorneys are all so familiar with the process. The courts have also been giving each case its own dedicated time slot on the docket, which has been immensely helpful in scheduling my other work duties. I have told them how helpful that has been to me, and I hope they can keep that practice for some of the shorter matters, such as guilty pleas.
Livestreaming court hearings has been really interesting and helpful to me as an attorney. I would love to see that continue, but I suspect the courts will discontinue that practice because of the technological necessities.
Chad Bridges, Fort Bend County
I anticipate there will be more use of digital copies entered as evidence during trial instead of paper copies.
Casey Smith, Harris County
In each trial, we have used at least one witness via Zoom. In the first, the witness was a punishment witness, and she had health complications and couldn’t fly from Mexico so she testified via Zoom. In the second trial, we had a witness who also had serious health concerns testify via Zoom. As testimony via Zoom becomes more widespread and feasible, I think in the future we really should consider allowing more witnesses to testify that way if they live out of state or out of the country, both sides agree, and they are not material witnesses. Of course, some witnesses will always be better live, but for others, Zoom can really save a lot of time and resources.