By Cara Salvatore

Law360 (February 12, 2021, 3:58 PM EST ) Courts around the nation are locked in a holding pattern, halting trials for month after month, or resorting to Zoom, which requires courts to create new procedures and systems to be effective. But in Texas, Houston's Harris County has found its own way to keep in-person trials galloping along.

It wouldn't work everywhere, but famously, everything's bigger in Texas — meaning Harris County has the raw space to fulfill one of the pandemic's most critical safety measures, putting distance between bodies.

Judge Rabeea Collier, co-chair of the county's COVID-19 judicial task force, told Law360 about the county's deal with NRG Arena to assemble jurors there (when the rodeo's not in session), buying new headsets and seat cushions, and testing the mix of jurors starting with a grand jury last summer.

This interview, conducted Feb. 9, has been condensed and lightly edited for clarity.

What is it about Harris County and the court system you have that makes it possible to hold in-person trials right now?

It's the resources Harris County has that are pretty unique, and the geographical reach. We're the third-largest county in the country. So we have Harris County supporting us to make sure that we have a facility that's large enough for us to do it; there's not this physical restriction. And having the resources to have NRG Arena really helps for jury assembly. I think that not all counties in the country have that.

I'd hate for someone to kind of assume that what we're doing here would be able to work in other places, or for members of the bar or for members of the public to say, 'Oh, it's happening down in Harris County; that means we can do it here.' Well, no. There's a ton of things that really aligned for Harris County to do what we're doing, and one of those things is having a facility large enough to safely assemble jurors.

Then, having a process in place that allows the judges to have an in-person jury trial from beginning to end in compliance with the CDC guidelines — so with masks, face shields, and everyone being six feet apart.

NRG Arena facilitates us summoning four panels of 65 per day, five days a week. There's a little bit of a start-stop there because of the rodeo. Although the Houston Rodeo has canceled portions of their schedule, the youth show is still moving forward, and that's where we're assembling jurors. So we'll be back the beginning of April, and our lease ends Oct. 30.

And it's worth it to note that our jury assembly where the jurors used to assemble prior to COVID was affected by Hurricane Harvey. It was still under reconstruction by the time COVID happened. When COVID happened, we in Harris County were still in the recovery process from Hurricane Harvey, and so when we talk about a backlog from COVID, we also have a backlog from Harvey.

What was the initial planning like that laid all this groundwork to get trials up and running?

I have a co-chair, Judge Kristen Hawkins of the 11th District Court. Both of us have been working hand in hand from March 2020 to July 2020 putting together the entire process for in-person jury trials. In July 2020, that's when we really started the whole process with picking our grand jury. And since then, Harris County has picked more than 60 juries, and we've had more than 60 trials in person during the pandemic.

What's the pace like these days? Since getting up to speed, have you been able to keep up a steady pace of trials?

In the beginning it was a little bit slower, because we wanted to make sure that our process was working. So as we go through the months since July, there were issues that we needed to fix. One of those things, I can tell you, is sound. Picking a jury in an arena or stadium is pretty difficult for sound purposes.

What we ended up doing is having individual voice-activated microphones and headsets so that all the jurors could hear properly, could hear the questions, and the lawyers could hear the court and the court reporter. And we have headset covers that are changed out from juror to juror; it's only used once a day, and we provide a new cover. The headsets, those are cleaned once a day.

Jurors are only allowed to sit in one seat a day. So we really have tried to limit any type of cross-contamination and have tried to the best of our ability to reduce the risks to the public of contracting COVID. They have zip-tied the seats to maintain and enforce social distancing. If you picture stadium seating, they have literally zip-tied the chairs that you cannot sit in. And it's cleaned every night.

After about — totally rough estimate — a month or so, we had a good number of courts going to trial, and it's remained steady. The only part that the courts have had to work around is really the schedule at NRG; some of those dates are just not available. And so the only gaps you'll see in us trying cases is because the jury selection facility is not available to the courts.

We've worked with local public health officials and through our regional administrative judge, Susan Brown, to work with the state Office of Court Administration to make sure that the process that we have in place has been thoroughly vetted by public health.

So that's the arena; what happens when jurors are picked and they get to the courthouse? What did you learn there?

From the jury assembly room, they're moved to the courtrooms. When they're in the courtroom and they're in a seated position, they're instructed by the court to put on their face shield. When I've picked a jury, I've told the jury that this is a little bit like you stepping into a sci-fi movie, but to have a ton of patience and grace throughout the entire trial. If you're trying a case throughout COVID, those are two things that you need. Everyone understands.

And it's a process — everyone has to go a lot slower, but it's a process that works, and it keeps our justice system moving. It's important that even during the time of a pandemic, we emphasize to potential jurors the ability of the judicial branch to function: that the rights and protections afforded to us by the Constitution are upheld even during times of pandemics.

The first case that I called to trial, it was a case that was pretty lengthy, and I realized during the trial that sitting in the gallery for the duration of the trial was very difficult on the jurors, because those benches are hard. Because of COVID, our jurors don't sit in the jury box; they're socially distanced in the gallery. In my first trial I recognized that to be an issue, and so I had to order cushions, lumbar cushions and seat cushions for my jurors.

You mentioned that you started out by testing everything with a grand jury. How did that go, and are those still going on as normal? How is the criminal side looking?

Grand juries normally only serve for a limited time period, and because of COVID they served over that time period. Judge Hawkins and I understood early on that we needed to develop a system that allowed for a safe process so that we could relieve the grand juries that had already been assembled. There are approximately five of them that run concurrently or are staggered. We needed to make sure that we had everything in process by July so that we could impanel a new grand jury.

Have you had criminal cases go to trial during the pandemic as well as civil?

We have had criminal district court cases; we've had felony cases go to trial, we've also had misdemeanor criminal cases go to trial. We've had family district court cases that have gone to trial. The vast majority of divisions have gone through the process.

What have you seen in terms of being able to draw a jury pool right now that fulfills the requirement of having a jury of one's peers?

We have discussed this issue in great detail, because it's important to make sure that the jurors are representative of our community. And we have been able to, up to this point, not see a big difference between COVID and pre-COVID appearance rates. So by ethnicity, if you look at the various years prior to COVID, they seem pretty similar from year to year, and with COVID there's not a dramatic change. You'll have the African-American community, Hispanic community, Asian community, the white community, that appear. There's not a significant difference from year to year.

Initially, we had no idea who was going to be appearing or who was going to be responding to their jury summons, and our fears were put to bed when we initially did the grand jury. If we started with the grand jury, that would show us an indication on whether or not there was going to be a particular community that would be significantly impacted — not necessarily whether COVID had an impact on a particular community, but the intersection between COVID and jury duty. Clearly COVID has impacted some communities more than others, but I'm talking about the intersection impacting grand jury duty.

When you impanel a grand jury, you have to meet all these requirements, percentage-wise, making sure that you have a certain percentage of all the various ethnicities, of genders, and just making sure you have a jury that is made up of your peers. With the grand jury, we realized, OK, we're looking at a situation where we are still having jurors from various communities appear and respond to their jury summons. As each trial happened, we are still seeing the same pattern, where you had similar percentages from the various communities appearing for jury duty. So that hasn't turned out to be a substantiated concern, thankfully — not for Harris County.

It really matters what's happening in a particular community.

Can you talk a little bit about what you've heard from lawyers regarding continuing to conduct in-person trials in Harris County?

One of the concerns that we've heard over and over again from members of the bar is whether or not you can have a fair trial, essentially. I'm really boiling it down to that. A lot of the concerns have been, what if my witness has to appear via Zoom? What if my witness has to wear a face shield? Will the jury be able to judge the credibility of the witness right now, given the climate? Is the community more pro-plaintiff or more pro-defendant right now? Is this an appropriate case to be trying right now?

I will say that the trials that I've had that I've presided over so far — and I've had a total of four — one we started back in January, and there was a COVID exposure concern. So we recessed and we're continuing the in-person jury trial tomorrow, and it should finish on Friday. But I can tell you from the other three, the first one settled in the middle; the second was a fairly quick defense verdict; and the third one was a plaintiff's verdict.

And so we come back to, are the concerns that are being raised about trying an in-person jury trial during the pandemic, are those concerns being substantiated based on what we're actually seeing when we're trying cases during the pandemic? I would say they're not. And the juries that I've spoken to after the fact have all been very much of the perspective that they understood all of the safety precautions, they appreciated the safety precautions, and those safety precautions did not prevent them from assessing the witnesses' credibility or the evidence. And that has been the overwhelming response by all of the jurors.

And how do judges look at balancing these concerns?

You know, judges want to make sure that when we try a case, we're trying the case in accordance with the law. I mean, no one wants to have to do it twice, to try the same case over again. And so we're looking at the same or similar concerns that the bar may be looking at. But there has to be something that substantiates these concerns. At least in Harris County, because we have a process in place, when the lawyers are advocating for a continuance, they need to be very specific about why shouldn't this case be tried during the pandemic.

The flip side is making sure other jurisdictions understand that they may not have the resources to have the kind of processes or procedures that we've put in place, that maybe it just looks different for them. Judge Hawkins and I have invested an incredible amount of time and effort to make sure we have a process in place.

I think not knowing when the end date is is the most critical component for judges. If there's a date certain, that's different, because then, OK, this date we can have everything back on track. But if we don't know when people can sit next to each other again, we have to figure out, how do we keep the judiciary functioning while we're in a process in which we don't have an end date?

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