“The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate.” Section 7 of the Kentucky Constitution forever enshrined the principle that, when an injury occurs or a dispute arises, a jury of peers from the community resolves the issue, rather than a bureaucrat or politician like in most other countries. Additionally, the U.S. Constitution’s Sixth Amendment states that in criminal matters, a defendant “shall enjoy the right to a speedy and public trial.”
The COVID-19 pandemic has upended Kentucky’s constitutional system for both criminal and civil jury trials. Putting 12 jurors in close proximity inside a courtroom in a jury box creates concerns about social distancing and spreading the disease, leading the Kentucky Supreme Court to repeatedly postponed jury trials throughout the Commonwealth beginning in March 2020.
For a brief period between August and October 2020 some Kentucky courtrooms were able to hold jury trials by seating the jury in the larger gallery instead of the jury box, by using plexiglass shields, and by having everyone masked except for testifying witnesses. However, when infection rates spiked with colder weather, trials were again postponed. The most recent order postpones all jury trials until April 1, 2021 at the earliest, with criminal trials taking precedence because of the Sixth Amendment’s right to a “speedy” trial.
The postponement of jury trials created a massive backlog of both civil and criminal cases. In October 2020, Kentucky Chief Justice John Minton sent a blistering letter to Jefferson County district courts concerning a “shocking backlog” of nearly 22,000 low-level criminal cases which never received a hearing during the pandemic. Scott County (Georgetown) Chief Circuit Judge Jeremy Mattox predicted “jury trials being backed up by at least one year” due to the pandemic.
Kentucky is not alone in facing tremendous backlogs in its trial courts. In New York, the nation’s largest city, only nine criminal trials were conducted from March through the end of 2020. In Texas, which averaged 186 jury trial a week in 2019, there were zero trials from March through June 2020. And in Britain—one of the few countries in the world other than America to use jury trials—there are concerns that criminal defendants will not receive a trial until as late as 2022.
The upshot of this is that many cases go unresolved, with criminal defendants unsure of their fate, victims of crimes unable to get resolution, and injured plaintiffs unable to have their claims decided by a jury. Additionally, plea deals and settlement negotiations have also been held up as parties have less incentive to resolve cases without a trial date looming.
It is not all doom and gloom. Kentucky court staff and legal professionals qualify for “Phase 1c” as essential workers and may be eligible for vaccination as early as February 1, 2021, with the potential that as early as mid-March court staff and lawyers would be fully vaccinated, with more of the population to follow. Hopefully, by mid-year, Kentucky’s “ancient” and “sacred” mode of jury trials will once again become the norm.