Last week’s announcement that the Guilford County courthouses would resume jury trials for the first time since March has caused concern among attorneys and courthouse staff. On Monday, Nov. 9, YES! Weekly received an anonymous tip alleging a positive COVID-19 case on the third floor of the courthouse in Greensboro. The source also alleged that the office was only being deep-cleaned and not shut down.
“What about the people who work in that office that have been exposed?” the source asked. “Just because the office has been cleaned doesn’t mean the employees there are safe. If they are infected, they are just reinfecting the office, and anywhere else they go in the courthouse.”
In an email on Tuesday, Nov. 10, Amanda Leazer, Guilford County Trial Court Administrator, and Courthouse COVID-19 Coordinator, confirmed a positive case on the third floor, but wrote:
It is up to the department heads if their employees come in after the positive case is identified.
The first Guilford County Courthouse jury trial of the pandemic began on the morning of Nov. 10 in room 4C. Brennan Aberle, the defendant’s attorney, said his client was 17-years-old at the time of his arrest on what Aberle called “a nonviolent drug charge.”
In a phone call on Nov. 9, Aberle criticized the courthouse for resuming jury trials while COVID-19 numbers climb, a decision Aberle called “a fresh and raw concern right now for Guilford County.” According to the North Carolina Department of Health and Human Services website, there are 13,170 COVID-19 cases in Guilford County and 215 deaths— one of which was 26-year-old Guilford County bailiff LaKiya Rouse, who left her shift at the courthouse on Tuesday, Oct. 20, and died within 24 hours.
“In Guilford County, we have a group that has been making most of the decisions in consultation with the health department,” Aberle told YES! Weekly. “That [group] is our Chief Superior Court Judge John O. Craig, Chief District Court Judge Teresa Vincent, our District Attorney Avery Crump, our Chief Public Defender John Nieman, and our Chief Clerk Lisa Johnson-Tonkins.”
Aberle said that he believes the judges and D.A. “are doing the best that they can” and are taking the situation seriously, “I am just concerned that we may not be ready to do this as safely as it needs to be done at this point. I do have some concerns about the prioritization of which cases we are willing to try when we are putting people’s lives at risk.”
Also on Nov. 10, Leazer emailed the following statement, with the note that it was “Per Senior Resident Superior Court Judge John O. Craig, III”:
The Chief Justice of the North Carolina Supreme Court and the Administrative Office of the Courts, which is the administrative branch of our judicial system, authorized the North Carolina Courts to recommence jury trials after Oct. 15. It is up to the Chief Justice to decide if the upward trend in Covid-19 cases would warrant any further suspensions or closures.
No aspect of our society can be 100% safe from the pandemic, and our local court system is no exception. But the judicial leadership, in conjunction with Guilford County facilities administrators and the Guilford County Health Department, has worked very hard to ensure that access to the courts remains open; that citizens’ constitutional rights are protected, and that safety measures are in place to minimize the risk to the health of potential jurors who have been called upon to fulfill their civic duties.
The guidelines promulgated by the Administrative Office of the Courts, as well as our local jury trial resumption plan, should provide sufficient measures to mitigate the risks associated with entering the courthouse. It is no easy task to balance safety concerns with the need to fulfill the obligations our judicial branch owes to the citizens of our state in order to uphold our democratic way of life. But we would not remain open and accessible if we felt there was a significant danger to the people of Guilford County.
Over the last 14 days, deaths in North Carolina have decreased by 3%, and hospitalizations are down 1%. We are fortunate that NC has not experienced the drastic spikes in new cases, hospitalizations, or deaths that many states have.
In addition to the larger public health issue, Aberle said he is concerned about specific dangers to clients and their attorneys.
“There are a lot of Constitutional concerns that get raised when you do a jury trial this way,” Aberle said. “I have to sit six feet away from my client, so you know, my client has a right to have his attorney talk to him, and we haven’t been provided with any kind of radio equipment. I put myself at risk just being an effective attorney who leans over and talks to his client as the evidence comes out. We don’t know what is going to be like having people testify either with masks on or if they are ordered to take the masks off when they get in that jury box even though it has glass around it, obviously if we believe the scientists that COVID-19 is aerosolized over a period of time if everybody gets in the same box and takes their mask off there could be some serious concerns there for safety.”
Aberle asked that YES! Weekly observe the courtroom during jury selection and pay particular attention to the area where chosen jurors would be seated.
“They’ve got a jury box where they have pulled the juror seats out— because they are bolted to the floor— and tried to space the chairs out," Aberle said. "Jurors have to be six feet in all directions from each other, and nobody really knows if this is going to be accomplished. Of course, these aren’t short periods of time people are sitting next to each other; these are jury trials.”
Observing courtroom conditions on Nov. 10, reporter Ian McDowell confirmed that Aberle’s description of the jury box was accurate. In an earlier phone conversation, Aberle told Katie Murawski that his concerns go beyond just the close proximity of jurors over an extended period of time.
“Before coronavirus, you get your jury summons— you come to court, there would be a point where we call a jury venir, which is everybody who could potentially be on the jury. There are like 40 or 50 people they bring into the courtroom, and then they call 12 up in the box at a time, and the attorneys get to question them to see if they can be fair and unbiased. If someone has a hardship where they can’t be there, they can raise their hand and go in front of the judge.”
Aberle acknowledged that the courthouse was attempting to be more accommodating to people concerned about doing that.
“There is a way to say that you have a health issue, and you are requesting a deferral. I think they are going to give people deferrals without asking too many questions.” But this, Aberle alleged, raised “another interesting concern.”
“If you can get a deferral without any questions, then down the road, your jury pool is going to look like what a jury pool would normally look like. But right now, we have no idea what people are going to be showing up for jury service— is it going to just be people who are not afraid of coronavirus? Is that going to look like a certain demographic? Is there a way you can get a fair cross-section of a jury pool at the moment because you are allowing people to very easily opt-out?”
Aberle called this “a good thing, because we don’t want people to put themselves at risk,” but said that it could also have a negative impact on the jury pool in a manner that might not bode well for defendants.
“You also have a right to a fair cross-section of a jury, so there is not really any way to police what we are going to see. And even worse, in times past, you could turn around and look at the jury venire and say, ‘hey that looks like what North Carolina looks like, or that looks like what Guilford looks like, it’s racially diverse. But we aren’t even going to know that now because they are not bringing everybody into the courtroom.”
Instead, Aberle said, “they are trying to limit the numbers, so we are getting small batches of people in the courtroom during jury selection. It’s going to be a very interesting process. I am not trying to cast aspersions or disparage anybody who is earnestly trying to make this system work. But that doesn’t change the fact that there could potentially be real consequences on the fairness of the process. We are just treading into the unknown.”
Aberle said his client, Leon Brimley (who is now 19 years old), was arrested two years ago for “possession with intent to sell or deliver cocaine.”
“I am of the opinion that the smaller the charges, the less reason there is to put human lives at risk here in Guilford County, and it is very concerning that they would call a case like this for trial right now when we are in Day 4 of the largest coronavirus spike we’ve had in the country,” Aberle said. “North Carolina, in particular, has set a record for the last several days. There are people charged with robbery, rape, violent assaults— if we are going to take the opportunity to try some cases before we have a vaccine widely available, then perhaps we should be focusing on ones where victims of crimes want justice, and not ones where we are going to be playing around with jurors lives over nonviolent drug offenses.”
Aberle repeated that he deeply respects those “who are trying to put this together and make it happen,” but emphasized that “I do think the public has the right to see what is going on and to question whether this is the smartest move right now. Because the numbers are worse now than they were when we shut down in March and April, so it seems to me to not be the safest move right now.”
That phone conversation with Aberle occurred on Monday, the day before his case was due to start. That Tuesday, the case was dismissed for lack of probable cause before the jury selection began.
Aberle gave YES! Weekly the following statement:
“While I understand that jury trials must at some point proceed, particularly in the cases of incarcerated persons hoping to prove their innocence and earn their freedom, this particular one sends the wrong message to the community. If we’re trying to determine which cases are worth risking the lives of jurors, one in which a defendant who was 17 at the time of his arrest and was charged with a nonviolent drug offense should never have been on the list, especially after North Carolina raised the age at which teenagers can tried as adults. If I had gone to trial and lost, I would have immediately been able to get it expunged due to the defendant’s age.”
Assistant District Attorney William H. Hill originally asked Judge John O. Craig to commence jury selection prior to litigating Aberle’s request for dismissal, but Judge Craig declined, saying there was no reason to be “parading” the jury back and forth from sequestration every time the defense moved to suppress.
The next jury selection scheduled for that courtroom on Tuesday was at 2 p.m. It was a nonviolent drug case with a defendant who’d been released from custody until trial. Aberle told YES! Weekly he thought this was another example of the court not having the right priorities.
“We are going to call another nonviolent drug offense now when we could just wait until we handle the more serious cases and see what happens after that?”
That case ended up being continued before jury selection began, which meant jurors sat all day in the improvised jury room in the old courthouse (the regular jury room is still being repaired from being set afire during the spontaneous late-night downtown protests that broke out in May after peaceful marchers went home).
On Nov. 10, Chief Public Defender John Nieman emailed YES! Weekly that the “first case set for the trial was dismissed and the second was continued” and that there were no more jury trials scheduled for this week.
Nieman also responded to the following question from reporters McDowell and Murawski, who had asked it of Leazer:
Was there also a positive case in the Public Defender’s office back in October (approximately around Oct. 7-9)? And if so, was that office closed or deep-cleaned?
In early October, an anonymous source told YES! Weekly of an alleged “outbreak” in the public defender’s office.
Nieman sent the following response:
Yes, there was a positive test result in our office last month. A close contact with an employee of our office received a positive test result, and so we advised the employee to stay home and be tested. Several days after the employee’s last contact with the office, the employee received a positive test result. All persons having contact with the employee were advised to be tested, in addition to any mandate from the County Health Department. All of those tests were negative. All protocols were followed regarding notice to the County. Our office remains closed to the public as a result of my decision to limit possible exposure to our attorneys and staff and to the general public. Our attorneys and staff are still representing clients on a daily basis in the courtrooms in Greensboro and High Point. The staff are advised to come into the office only as needed. Most are in the office every day. Clients are advised to call 336-412-7777 and follow the prompts to contact their attorney. They may also access our website or search Guilford County Public Defender.