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A trial can be won or lost during jury selection — every potential member of the panel gets scrutinized by the lawyers and the judge, who pepper you with questions and study not just your responses, but everything from your body language to the look on your face.
But what if they can’t see your face?
A growing number of lawyers in South Florida are balking at the idea of picking juries without being able to see potential jurors’ faces, and while experts can’t agree on the effect of masks, few want to take chances when the stakes are high.
Defense lawyers H. Dohn Williams and Mitch Polay originally wanted jurors in their clients’ upcoming murder trial to wear masks. It was a matter of health in the time of a pandemic, they said. But when masks became mandatory at the Broward courthouse, the lawyers realized they had to contend with a different challenge.
“No one wanted to pick a jury when we couldn’t see their faces,” Williams said. “It’s difficult to connect with them when you’ve lost the ability to gauge their reactions to your questions.”
Williams and Polay aren’t the only ones to make an issue of picking masked jurors.
“There are a number of issues raised by COVID when it comes to guaranteeing a fair trial,” said lawyer David Bogenschutz, who wants a delay in the upcoming trial of a client charged in a 2015 fatal hit-and-run case. “Masks are significant because not only do we want to see the jurors’ faces when we’re questioning them, we also want to make sure everyone understands the lawyers and the witnesses when they speak.”
Mask requirements were behind the decision in Palm Beach County to delay the murder trial of Jullian Alexander Cathirell, accused of killing his roommates Brandon and Brian Allen in 2017 and setting their bodies on fire to cover up the crime. The trial, originally to begin earlier this month, is now set for March.
For Williams and Polay, the stakes can be no higher. They represent Richard Andres and Jonathan Gordon, two men who face the death penalty if convicted of first-degree murder in the 2015 death of Ivan Brandt in Tamarac.
“A DUI is one thing, but no one wants to experiment when the ultimate punishment is in play,” Williams said. “No judge is going to want to be reversed for taking a chance like that.”
Prosecutors agreed, and the trial, also originally set to begin this month, is now on hold indefinitely.
But judges, experts and other lawyers are not unanimous on whether a masked jury hinders a defendant’s right to a fair trial.
“[The] defendant will still have the opportunity to question potential jurors and observe their responses and demeanor so as to obtain information to detect bias …” Palm Beach Circuit Judge Rosemarie Scher wrote in a May decision on a felony case.
Psychologist Marshall Hennington, owner of Hennington and Associates Trial and Jury Consulting, said mask requirements should not be a deal-breaker for criminal trials.
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“I’ve picked several juries since the pandemic started, and it’s never impacted our ability to hold a trial,” he said. “I’m looking at other issues. I can still get valuable information, even with them wearing a mask.”
No one can tell when masks will no longer be necessary (or at least recommended) to protect public health, Hennington said. The justice system can’t afford to stop moving over it, he said. “The show must still go on.”
Defense lawyer Eric Schwartzreich has tried four cases since jury trials resumed in Broward earlier this year. In each, jurors were masked at every stage.
“They say the eyes are the window of the soul,” he said. “When they’re wearing masks, their eyes are highlighted. Their face can’t do anything without their eyes giving them away. That’s where we have to look. COVID is going to be here for a while. The game has changed. We have to adapt.”
Staff writer Marc Freeman contributed to this report.
Rafael Olmeda can be reached at firstname.lastname@example.org, 954-356-4457 or on Twitter @rolmeda