Trial by COVID-19

On Feb. 20, Randy Sue Pollock went to Kentucky to represent a client in a federal trial on drug and money-laundering charges. By the time she flew home nine weeks later, both Kentucky and Pollock’s home state of California were in lockdown; two health scares had delayed the trial; and she and her paralegal had spent two months in an Airbnb trying to social-distance from each other.

She did get an acquittal for her client on all counts.

“Other lawyers and friends could not believe that we were still in trial,” says Pollock, who practices criminal defense at the Law Office of Randy Sue Pollock in Oakland. “Once we both returned and have seen how life has changed here in the Bay Area and have read the depressing daily newspapers, we realized that we could not have focused on the trial as necessary if we had known the depth of what was happening.”

Testimony began on Feb. 25 in Judge Karen K. Caldwell’s Lexington courtroom in the Eastern District of Kentucky. Then on March 16, Kentucky Gov. Andy Beshear began a series of lockdowns in response to rising COVID-19 numbers. The federal courts were allowed to proceed with trials already in session at the judge’s discretion. Caldwell gave the jurors a questionnaire and individually met with them to see if they were willing to continue, which all were.

“For me—and, I think, for the other attorneys—I couldn’t let this impact me psychologically,” says Pollock. “I was trying to stay focused and not lose my adrenalin.” 

But two days later, everything came to a standstill when one of the four defendants—not Pollock’s—came down with a fever and sore throat. The defendant was tested for coronavirus, but the results were slow in coming. Caldwell recessed court for a week, and a mistrial was discussed. The judge was worried that jurors would forget some of the testimony in two weeks, but the lawyers on both sides opposed a mistrial.

When court reconvened on March 30, the jurors said they, too, wanted to go forward. The suspected COVID-19 case turned out to be a sinus infection. However, at another point, a juror came down with stomach flu and the trial recessed again—this time for only one day. But that wasn’t even all the distractions challenging participants’ focus. In mid-April, the son of one of the attorneys came down with COVID-19 in Tennessee, and the judge’s granddaughter was hospitalized with COVID-like symptoms. Both are doing well, Pollock says.

“We all just tried to put our own personal fears and concerns aside and continue to stay the course for the sake of our client,” Pollock says.  “The judge was most considerate of the wishes of the jury and the parties to proceed; she questioned the jurors daily to see how they were; opened up an extra room that they could socially distance in during recesses and delivered lunches for them. … The courtroom and entire floor were sanitized every day, the public was not allowed into the courthouse, and there were no spectators allowed unless approved by the court.”

Extra precautions were taken, like spacing jurors out by extending the jury section into the spectator area—which was mostly empty anyway—and offering masks, which only one juror wanted.

The lawyers weren’t quite as well protected. “When counsel had to approach the bench, we were all (seven) together, and I just hoped for the best,” Pollock says. “We used the sanitizer a lot. We were all seated close to each other. We wanted to continue, so we put the risk out of our minds as much as we could.”

After the trial, at which three of four defendants were found not guilty, Judge Caldwell praised the jurors for their commitment and joked that they all deserved cars from Oprah for their commitment to jury duty. But Pollock says the judge also deserves kudos: “For such an extraordinary situation, Judge Karen K. Caldwell handled everything in a concerned yet sensitive approach that ensured that the defendants were given a fair trial.

“I think everyone handled the situation that we found ourselves extraordinarily well. As attorneys, we had to adapt to the situation presented by having witnesses’ testimony live-streamed into the courtroom and the presentation of other witnesses’ testimony via video depositions. This was not the way we wanted to present our cases.

“We were in an extremely stressful trial with clients looking at 10-year minimum mandatory sentences. We had to handle the stress of trial and the pandemic and the fact that, each day, we were facing jurors who were braving an unimaginable health crisis to serve as jurors.” 

Looking back, Pollock says she and her paralegal, Carey Lamprecht, could see how stressful it was to try a case with a pandemic as the backdrop. “What we went through as the only federal trial in the U.S. during the pandemic was historical, but at the time we could not appreciate that,” Pollock says. “We were fortunate to be in front of an exceptional federal judge and to be judged by a jury that was so invested in serving their role in our judicial system.”