A “mock trial” was held Thursday at Keahuolu Courthouse in preparation for jury trials expected to resume Nov.17.
Third Circuit Chief Judge Robert D.S. Kim invited lawyers to participate in the exercise in order to garner feedback on the safety measures put in place for jury selection and trials.
“We will be making changes as we go along,” Kim told the participants. “We want the public to understand we are doing everything we can to protect them.”
He also warned if the COVID numbers spike again, there could be additional delays.
Participants, portraying potential jurors, were led into the courthouse, adhering to social distancing guidelines and followed the safety measures Kim put in place.
Kim explained a jury summons will be sent out to prospective jurors. Prospective jurors will be requested to report over multiple dates and times.
“Smaller jury pools over multiple days will help us maintain proper social distancing,” he said also noting the normal two to three day jury selection will be “out the window.”
A flyer will be included in each jury summons directing all potential jurors to reschedule their jury service if they have a fever, cough, shortness of breath or difficulty breathing, or other symptoms of respiratory illness; have had close prolonged contact with a person who has or is suspected to have COVID-19; have traveled interisland and a 14-day period has not passed since such travel or have traveled outside of Hawaii in the past 14 days and have not satisfied the negative test exception to the mandatory 14-day quarantine and the post-arrival test requirements as set forth by the County of Hawaii.
Masks are mandatory and social distancing will be maintained throughout the courthouse. A temperature check will be administered at the entrance to the courthouse. Disposable gloves will be provided upon request.
Prospective jurors will then be taken to the jury assembly room or courtroom where chairs are spaced six feet apart. A large screen television will be placed in the jury room where a video conference will be established between the courtroom and jury assembly room so the court and prospective jurors can see and hear each other.
Kim said currently unoccupied Courtroom 2B, which doesn’t have a jury box, will be utilized for jury trials as it affords more room for social distancing.
Once the court conducts a general qualification examination, those not excused from service will be released until instructed to return.
Once they return for selection, in which they are questioned by attorneys in the courtroom, sanitizing of seats will be performed after each potential juror is either chosen or dismissed.
After a jury of 12 and two alternatives have been selected, trials may begin.
Trials, which normally take place from 8 a.m. to 4 p.m. will be abbreviated to 8:30 a.m. to 1 p.m. with two breaks. This will extend lengths of trials, however Kim said reducing the amount of time spent in the courtroom is the safe way to go.
“Our courthouse is state of the art, best in the state with the best HEPA filters,” he said. “But we don’t want to keep everyone together in one room for eight hours.”
With a backlog of trials due to emergency orders suspending jury trials, Kim said he would be proceeding with cases with defendants who have been in custody the longest.
The first trial in Kona, State of Hawaii vs. Zeth Browder will commence Nov. 17.
Browder has been confined at Hawaii Community Correction Center in lieu of $166,000 bail since his arrest in June 2019. He has pleaded not guilty to two counts each of first-degree sexual assault and third-degree sexual assault, and one count each of first-degree burglary, kidnapping and tampering with evidence.
According to prosecutors and police, the female victim, now 79 years old, reported she had been sexually assaulted by a man who was also camping at Spencer Beach Park, a county facility in South Kohala. Police identified and subsequently charged Browder in connection with the alleged crime.
Jurors will utilize the courtroom gallery, spaced 6 feet apart. Everyone in the courtroom is required to wear face masks that cover the mouth and nose.
“No bandannas, no face shields. Only masks,” Kim said.
The only exception to this rule is when a witness is called to testify. Instead, Plexiglas will be placed around the witness stand to protect others in the courtroom. Disposable gloves, hand sanitizer and wipes will be placed next to the witness stand and after testimony is complete, court staff will wipe down the microphone, desk surface of the witness stand and witness chair.
Two large TV screens will display views of attorneys, witnesses and exhibits for the jury.
Since the courtroom gallery will be used for jurors, interested parties will be seated in an “overflow courtroom” where they will be able to see and hear proceedings via large screen TVs.
Should a defendant’s family member request to be present in the trial courtroom, defense counsel must notify the court at least three days in advance of trial. Kim said every effort will be made to accommodate the request, taking into consideration security concerns and social distancing guidelines.
“It’s not a perfect solution, but it’s the best we could do,” said Kim. “We’ve got to go.”