The Fifth Amendment guarantees criminal defendants due process of law. The Sixth Amendment demands they get speedy and public trials where they can confront the witnesses against them. Neither amendment says anything about COVID-19.

But Maine courts do have account for a global pandemic as they deliver those bedrock constitutional rights. So far, judges have expanded the use of communications technology, conducting hearings with remote participants to keep court calendars moving. And this week the courts have resumed holding in-person jury trials, with some new rules that make them look different from what happened in the past.

The court has an obligation to ensure the safety of everyone, including jurors and witnesses, who is compelled to come to the courthouse and participate, whether they want to or not. But at the same time, safety alone doesn’t absolve the state from protecting a defendant’s rights. So far, the courts are finding the right balance, and setting good precedents that will help the system function in the months ahead.

One such decision was reached in the case of Carine Reeves, who is on trial in the 2017 murder of Sally Shaw, in Cherryfield. Reeves’ lawyers moved that it would be prejudicial to require their client to wear a mask during his trial. Superior Court Justice Harold Stewart ruled that Reeves might face more prejudice if he didn’t cover his face.

“Some jurors could be angry that someone in their presence was unmasked, risking spread of infection, while others might resent that they are not allowed to remove their own mask,” Stewart wrote in his order.

It’s no longer unusual to see someone wearing a mask in indoor spaces. It has become part of the culture. Even if it would have seemed strange six months ago, it’s the norm now.

More complicated questions revolve around jury selection. Under the new rules, potential jurors can be excused if they have concerns about exposure to COVID, which has defense attorneys rightfully concerned about the makeup of the jury pool. High-risk groups for COVID include people of color and people age 60 and over. If those subgroups of the population opt out of jury service with greater frequency than the other groups, the list of potential jurors will be less representative of the community.

There is no way of knowing if that will happen, however, without going through the process and seeing the results. Court officials will have to see who shows up for jury duty and who opts out to know whether a problem exists that needs to be addressed.

In the meantime, the trial calendar needs to start moving again. In a best case scenario, we are months away from the approval of a COVID vaccine, and it will take even longer to administer it once it’s developed. The court system can’t sit back and wait for the virus to be eradicated, any more than it can ignore a defendant’s constitutional rights.

The Constitution tells the state what it has to do. For at least a little while longer, COVID is going to tell us what it will look like.


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