TRIAL PROTOCOL DURING THE COVID PANDEMIC CRIMINAL CASES BEFORE JUDGE BLAKEY

All parties participating in trials in criminal cases before Judge John Robert Blakey during the COVID pandemic are advised of the following:

A. Trial Dates/Courtroom Assignments. A set to start during a particular week is subject to starting any day that week, and/or in any courtroom in the courthouse, based upon prioritization and available space. The Court will advise counsel of their jury trial’s exact start date, and location(s), about two weeks in advance.

B. COVID testing. All prospective jurors, lawyers, as well as others (including witnesses) who will be in a courtroom for more than two days during a trial will be required to report in advance of the trial for free COVID testing on the second floor of the courthouse. Testing is required for everyone, including those who have been vaccinated. All persons must take a COVID test exactly three business days prior to the date the trial starts. For example, if a trial starts on a Monday, the test must be completed the previous Wednesday. For information about how to schedule a COVID test at the courthouse, please see the Case Participant COVID Test Letter from the Clerk of the Court. Please be advised that if the trial lasts more than two days, jurors, lawyers, and others who will be in the courtroom for the duration of the trial will have to be retested twice a week. This Court will adjust the trial schedule to allow for mid-trial testing of court staff and jurors, but the parties remain responsible for scheduling on their own the timely testing of attorneys and witnesses at the courthouse. Please be advised that everyone required to undergo testing must sign up through the testing portal and be tested at the courthouse. Testing elsewhere does not fulfill this requirement.

C. Face Masks. Face masks are required for all who enter the courtroom. The Court may make exceptions allowing a person who is or will be speaking to remove his or her face mask, i.e., a prospective juror during voir dire; a witness during testimony; a lawyer during questioning or argument.

D. Presentation of Evidence and Argument. Lawyers must examine and argue from their position at table or from the podium. Lawyers will not be permitted to roam around the courtroom and must not approach witnesses or opposing counsel to pass exhibits. Exhibits will be displayed electronically only, using the computer hookup for most regular exhibits and demonstratives, and using the Elmo for physical exhibits and hard copies. In order to ensure an accurate transcript of the proceedings, counsel must speak into their microphones at all times.

E. Sidebar Procedures. Lawyers need not leave their position at table for sidebars. If a sidebar is necessary, the court reporter will project white noise throughout the courtroom while counsel and parties don headphones and conduct the sidebar from their seats with the Court. Only those with headphones will be able to hear the sidebar conversation. During a sidebar when a witness or prospective juror is being questioned, the witness or prospective juror is directed to go to the sidebar microphone near the bench, where the Court will supply a real- time-transcript feed to an iPad set up near the microphone. The witness or prospective juror then reads, rather than hears, the questions/comments from the Court and the attorneys, and answers by speaking into the microphone.

F. Venire Size. A criminal venire size is limited to forty persons per day.

G. Voir Dire Questionnaires. Prospective jurors will complete the Court’s written voir dire questionnaires when they report for testing in advance of the first day of trial. The Court will make available the completed questionnaires to counsel on the first day of trial. The Court’s standard questions can be found in its Standing Order labeled “ Protocol (Criminal).”

H. Jury Selection Procedure. The following describes the standard procedure for jury selection in criminal cases before Judge Blakey during the COVID pandemic:

(1) Before bringing in the venire, Judge Blakey’s staff organizes the completed voir dire questionnaires in the order in which the prospective jurors will be called, based upon the randomly shuffled list provided by the Jury Department, and provides copies of the completed questionnaires to counsel;

(2) Voir dire for criminal jury trials is conducted in two shifts. The first group of twenty prospective jurors (first Group of 20) is brought into the courtroom and seated on benches in a way to ensure adequate spacing. The Court then makes some preliminary remarks about the case, the responsibilities of jury service, and the jury selection procedure itself; (3) The attorneys and parties introduce themselves to the first Group of 20;

(4) The Courtroom Deputy swears the first Group of 20 for the purposes of jury selection;

(5) The Court may pose several brief questions to the first Group of 20 as a whole, with responses being expressed by a show of hands and noted by the Court as needed;

(6) The prospective jurors are then called one by one in the sequence in which they appear on the randomly shuffled list provided by the Jury Department. Each juror approaches the podium, where he or she is instructed to pick up a microphone cover and place it over the microphone. Each juror will verify their answers to the questionnaire, and the Court may ask questions regarding any matters in the questionnaires that require follow-up. If any questions require private answers, the Court will pose them on the record but at sidebar.

(7) After the entire group has been questioned by the Court, each party (the Government then Defendant) will be given the opportunity to question the prospective jurors as a group or individually, subject to a time limitation imposed by the Court. The parties must avoid repetitive, argumentative, or indoctrinating questions. The Court will sustain objections as to any questions that are improper in either form or substance, and will do so on its own motion when necessary. The parties must also request sidebars for any questions requiring private answers;

(8) After questioning, the Court asks the parties at sidebar if they have any supplemental questions to propose regarding any member of the first Group of 20. If proper, the Court asks the supplemental questions, and, once again, any questions requiring private answers are handled on the record but at sidebar;

(9) The Court then sends the first Group of 20 to the assigned jury room, and the attorneys for each side are given a few minutes to prepare their challenges for cause, and peremptory challenges;

(10) With the Government going first, the parties then make motions to strike for cause specific individuals within the first Group of 20, articulating all potential challenges for cause applicable to each individual. After hearing argument from both sides as to a potential juror challenged for cause, the Court grants or denies the motion to strike as to that individual. The Court then hears any additional motions by the Government to strike another individual within the first Group of 20. The same process then goes forward for the Defendant’s motions to strike for cause specific individuals within the first Group of 20. After completion of all challenges for cause applicable to the venire from all parties, the parties are given a few more minutes to prepare their peremptory challenges;

(11) After the short recess, each side writes on a piece of paper the name and number of all of their peremptory challenges applicable to the entire first Group of 20 (who have not already been dismissed for cause) and submits the note to the Court. In all non-capital felony cases, the Government normally has six total peremptory challenges (plus one peremptory for alternates for a total of seven), and, absent special circumstances, the Defendant normally has ten (plus one peremptory for alternates for a total of eleven);

(12) After reviewing the written peremptory challenges, the Court announces all of the strikes from each side on the record. If both parties use a peremptory strike against the same member of the first Group of 20, then that peremptory strike counts against the total allotment of peremptory strikes for both parties. All potential jurors within the first Group of 20 are then brought into the courtroom. Potential jurors that have not been struck for cause or by a are given the standard admonishments, advised to return the following day to be sworn as members of the jury, and then released for the day. The Court will also thank and excuse all jurors within the venire that have been successfully struck for cause or struck by a peremptory challenge;

(13) The Courtroom Deputy then calls for the second group of twenty prospective jurors (second Group of 20) from the jury room;

(14) Upon arrival of the second Group of 20, the Court repeats Steps 2 through 12 above for this new panel, this time with the Defendant going first and the Government second for questioning and striking. During this phase, the alternate(s) will be selected as well;

(15) The selected jury is not sworn for trial purposes until the beginning of trial. If, at any time, either side wishes to raise any legal motion or challenge regarding jury selection, then they must do so outside the presence of any members of the venire.