SC defense lawyers’ group opposes first in-person jury trial since coronavirus hit
A woman sat behind a plastic shield on the witness stand in the Laurens County courthouse on Tuesday describing a horrendous stabbing she witnessed, according to court observers. Jurors sat with empty rows of chairs between them. Everyone — including witnesses, attorneys, the defendant, jurors and the judge — wore masks when required.
The court proceeding is South Carolina’s first in-person jury trial since Chief Justice Donald Beatty shut down those trials in April because of the coronavirus outbreak.
But a group of defense attorneys believe the trial in Laurens County is dangerous and shouldn’t be happening.
The South Carolina Association of Criminal Defense Lawyers opposes the resumption of in-person jury trials for now. The group said that with a spike in coronavirus cases in South Carolina since June, the health of defendants, lawyers, jurors, witnesses and all the others involved in a face-to-face trial would be at risk.
The association sent a letter to Beatty expressing their concerns on July 2.
“The resumption of jury trials is not safe,” wrote Andrew Potter, the group’s president.
“The members of the SCACDL all have a strong desire to be able to move client cases in a fair and speedy manner,” Potter wrote. “However, this desire does not alleviate the need to protect the health and welfare not only of our clients, but all the individuals involved in the Court system.”
The homicide that led to the controversial trial happened on Oct. 27, 2018.
Lutavious Elmore, who was 31 years old at the time, showed up to the home of his ex-girlfriend and found her with 26-year-old Sergio Lindsey, according to authorities. Elmore got a knife and stabbed Lindsey multiple times, including in the chest, authorities said.
The Laurens County Sheriff’s Office charged Elmore with murder, burglary, domestic violence, kidnapping and a weapon offense.
Courts in South Carolina all but shut down by early April because of the virus. All in-person jury trials and scheduling of those trials were halted by order of Chief Justice Beatty.
Elmore, who is being defended by Laurens County Chief Public Defender Chelsea McNeill and Assistant Public Defender Tristan Shaffer, was already scheduled to stand trial in August before Beatty’s April order, according to lawyers.
On July 30, Beatty ordered that social distancing, face masks, temperature checks and other measures were required in courthouses, allowing the Laurens County trial, which is being presided over by Chief Administrative of the 8th Circuit Judge Don Hocker, to go on as scheduled if the precautions were followed.
The Greenwood Index-Journal reported that Beatty attended the first day of the trial to ensure his order was being followed.
Rauch Wise of the criminal defense lawyers association has been attending the trial to observe for the group. He said the new precautions have some flaws. It’s difficult to stay 6 feet apart at all times. Juror aren’t asked each day if symptoms have developed, a particular problem because the trial seems like it will last more than a week., meaning jurors will have more time to contract the virus.
“Success is proven not by whether or not you have a trial,” Wise said. “Success will be measured whether the precautions taken prevent COVID.”
The trial is being prosecuted by Deputy Solicitor Dale Scott and Assistant Solicitor Margaret Boykin of the 8th Circuit Solicitor’s Office, which is led by Solicitor David Stumbo.
Stumbo issued a statement thanking Beatty, Hocker, Laurens County Clerk of Court Lynn Lancaster, and other court staff for their “hard work and creativity” in holding the trial. “The plan that they have implemented has allowed the critical work of jury trials to resume this week while also ensuring to the greatest extent possible the health and safety of all involved parties, particularly our citizen jurors,” he said.
“We are hopeful that Laurens County and the 8th Circuit will lead the way in working toward the resumption of normal court operations across South Carolina in the coming months,” Stumbo said.
As much as the defense lawyers association wants to resume jury trials, the group’s concerns go beyond people’s health to include a defendant’s constitutional rights, it said in statements to Beatty. The Sixth Amendment right of a trial by jury may be compromised during the pandemic.
The defense lawyers association expressed concerns about the pool jurors available for trials during the pandemic. The association worries that those who feel threatened by the coronavirus will not show up for court or exaggerate their symptoms on health questionnaires in order to avoid jury duty.
“If the jury selected consists primarily of people who do not believe that COVID-19 is real, the jury will not reflect the composition of the community at large,” the association wrote.
When a jury goes to its chambers to discuss a verdict, defendants may not get a fair shake, Potter said.
“How are the jurors going to feel confined with other folks?” Potter said. Will new rules “allow them to be comfortable to do their duty? ... Or are they just going to want to get out of there?”
Other worries are going to be tested at the trial as well.
Defense attorney’s might not be able to effectively and confidentially counsel defendants if they have to be spread out, Potter said. Normally, defendants would sit next to their lawyers, allowing the two to whisper or write notes.
Defendants might not be allowed to have as many family members in the courtroom to show support, and jurors’ evaluations of witnesses may be affected by the witnesses wearing masks, the association said.
Along with the letter to Beatty, the defense lawyers association sent a 10-page outline of concerns and safety enhancements for trials. The recommendations were written before the most recent spike in coronavirus cases, the association said.
South Carolina has had more than 1,000 new virus cases reported nearly every day since June 24. The percentage of tests that turn up positive has been high, hovering around 20% daily for the last 28 days.
Some of the recommendations by the association include that the court consider the size of the room for a jury trial before scheduling, asking jurors questions about having symptoms and allowing defense attorneys to speak with their clients in private rooms instead of the courtroom among other suggestions. The first two recommendations were adopted in the Laurens County case.
Potter said he hopes more of the recommendations are enacted in the future.
The defense lawyers association wants to partner with law enforcement, prosecutors and everyone else involved “to find the best way forward,” Potter said.
This story was originally published August 6, 2020 at 2:46 PM.