By Daniel Siegal

Law360 (June 12, 2020, 8:39 PM EDT) -- While judges and attorneys worried whether jurors would be willing to brave the coronavirus so the Eastern District of Texas could host its first jury trial since the pandemic hit, East Texas denizens showed no fear before delivering a verdict on Wednesday.

The trial in Sherman, Texas, began on Monday and concluded on Wednesday when an eight-person jury rendered a verdict for defendant Rosa Lopez, who does business as A&R Rent-A-Fence and faced claims that a negligently placed construction barrier caused plaintiff Frostine Newberry to trip and break her wrist.

U.S. District Judge Amos L. Mazzant III and attorneys for both Newberry and Lopez all said they were surprised at just how little concern about the virus jurors expressed from voir dire to verdict, and said the trial itself went off without a hitch.

"[One of the attorneys] asked some questions regarding COVID itself, and not one hand went up saying they were concerned in any way, and that surprised me," Judge Mazzant told Law360. "After the fact when I spoke to the jury, I asked again, and I will tell you they had no concerns whatsoever."

This extended even to one juror that had an underlying health condition that would make COVID-19 fatal for them, and who told Judge Mazzant after the trial that "they were not going to live in fear."

Newberry's attorney Mark Underwood echoed these thoughts, saying he heard from jurors after the verdict that they had felt it was their duty to serve on the jury.

"If I had been summoned to jury duty and I was sitting there going through voir dire, it would have been really easy for me to say, 'I'm afraid of COVID-19, I don't want to be on this jury,'" Underwood said. "And nobody did that."

Jurors aside, the trial couldn't proceed exactly as usual. Judge Mazzant noted that the Sherman courthouse is over a century old and his courtroom is much larger than those in contemporary courts, allowing the participants to maintain social distancing throughout.

Before jury selection began, everyone entering the courtroom had their temperature taken with a no-contact thermometer. And everyone was required to wear a mask during this process — when 35 potential jurors were brought in and spread around the gallery for an accelerated voir dire.

Perez attorney Adam T. Hamilton of Fox Rothschild LLP said this was the most challenging and different aspect of the trial, as selecting a jury without being able to see their faces posed an obstacle.

"It is difficult, because I draw a lot from what kind of reaction I get from people. I do try to connect to jurors as much as I can," he said. "You ask broad questions, and a lot of those questions just drew no response."

Hamilton also said that in order for the jury to understand him while he wore a mask, he had to "shout pretty good."

Once the trial got underway, however, things felt close to normal, according to the judge and attorneys. Although jurors were spaced out within the jury box, they were permitted to take off their masks — and seven of the eight jurors did so right away, according to Judge Mazzant.

The only juror to keep their mask on throughout the trial was the one with the aforementioned health conditions, the judge said.

Attorneys and witnesses were not allowed to wear masks during questioning either.

"I don't know how you can judge credibility if you can't see facial expressions, so that's why I did that," Judge Mazzant said.

Hamilton said that after jury selection, it was "like any other trial."

There were six fact witnesses and two expert witnesses during the trial, with two of the witnesses testifying via videotaped deposition — but not for any coronavirus concerns, according to Hamilton.

The courtroom staff disinfected the courtroom multiple times throughout the day, and there was hand sanitizer and wipes available as well.

Judge Mazzant said that his plan for the trial came out of discussions with Chief U.S. District Judge Rodney Gilstrap and Senior U.S. District Judge Ron Clark.

Judge Mazzant noted that he sent out a letter with the jury summons informing the potential jurors about the safety measures the court would be taking and asking anyone who had been diagnosed with COVID-19 or was self-quarantining to inform the court.

Judge Gilstrap told Law360 that he would be sending out a similar letter before the next jury trial in his courtroom, noting it can reduce potential jurors' "fear of the unknown."

"Doing that I think sends an important message that the court is aware and doing the best to be mindful of the public health issues and tells citizens what to expect when they get there," he said.

Judge Gilstrap also said that the strong juror response for this trial had assuaged some concerns around the district that people would be reluctant to come in for jury duty.

For this type of trial, the court would usually send out around 70 jury summonses, aiming to have 50 of those people show up to the courthouse, and around 35 of those people actually participate in jury selection, according to Judge Mazzant.

For this week's trial, the court played it safe by sending out some additional summonses — around 80 — and got around the same number of responses as normal, according to the judge.

The court is keeping contact information for all of the participants in the trial so they can contact them if one of those participants informs the court that they have tested positive for COVID-19, Judge Mazzant said.

Sherman is the seat of Grayson County, which saw its total number of reported COVID-19 cases spike in May, going from less than 50 to over 300 during the month, according to the Grayson County Health Department.

The county's total positive cases has now cracked 400, but the majority of that number refers to people who have since recovered, according to the department data.

Sherman itself has been the site of an outbreak at a Tyson meatpacking plant.

Underwood said that with cases around Texas continuing to rise in the wake of the Memorial Day holiday and the lifting of stay-at-home orders, it made sense to try the case now rather than wait. He added that his client is around 70 years old and has underlying health conditions that could make catching COVID-19 "a death sentence."

"I think the judge kind of had the same thought process that now is a pretty good window of time to do it — it might be worse in a month," he said.

Underwood added, however, that he would have liked to have had the temperature checks continue throughout the trial. He also noted it could be useful to seat alternate jurors, even if it's not the judge's normal practice, so that if a juror did come in with a fever one day, they could be sent home and the trial could continue without interruption.

And Hamilton highlighted one unexpected choke point: the restroom. With only one small restroom available for attorneys and witnesses, it was "almost like one-in, one-out."

Underwood said that all things considered, he would be willing to try another case in front of Judge Mazzant during the pandemic, and that was because of how the judge and his staff handled things.

"A different smaller court, a more modern courtroom with court personnel that aren't as diligent as these court personnel — I would think long and hard about," he said.

The Newberrys are represented by Mark Underwood of Underwood Law Office.

Lopez is represented by Adam T. Hamilton of Fox Rothschild LLP.

The case is Newberry et al v. Discount Waste Inc. et al., case number 4:79-cv-00147, in the U.S. District Court for the Eastern District of Texas.

--Editing by Emily Kokoll and Philip Shea.

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