In October, jurors are scheduled to hear a high-profile double murder trial. But given the state of Virginia’s court systems amid the pandemic, that trial, and others, might be delayed by weeks or months.
On March 16, Virginia Supreme Court Chief Justice Donald W. Lemons signed a Declaration of Judicial Emergency that required all civil, traffic and criminal matters, including jury trials, to be continued in an effort to keep as many people as possible out of courthouses to help slow the spread of COVID-19. On Sept. 4, Lemons extended that order for a 10th time, holding it in effect through Oct. 11.
That means jury trials in Loudoun’s Circuit Court won’t be allowed to move forward for at least another couple weeks. After that, Lemons is expected to sign another extension into effect.
The situation leaves uncertain two criminal jury trials on the docket in October.
The first is the trial of 40-year-old Brian Welsh, who is charged with two counts of first-degree murder in connection with the January 2018 shooting deaths of Mala Manwani and her adult son, Rishi Manwani, at their Tomey Court home in Aldie. That trial is scheduled to run every day of the week from Oct. 5 to Nov. 6.
The second jury trial is scheduled to last three days, from Oct. 27-29, and will center on Brian Foley, who is charged with one count of involuntary manslaughter stemming from an early-morning Ashburn car crash in November 2019 that killed a 31-year-old Maryland woman.
To proceed with the trials, according to Clerk of the Circuit Court Gary Clemens, the Loudoun County Circuit Court submitted a plan to the Virginia Supreme Court outlining how it intended to resume jury trials while adhering to all sorts of social distancing mandates.
According to Lemons’ sixth order extending the Declaration of Judicial Emergency, which he issued June 22, each of Virginia’s chief circuit court judges may develop those plans by consulting with the other judges in the circuit, local sheriffs, public health officials, attorneys and the clerk of the court.
Lemons’ order specifies that those chief judges should consider guidance issued by the judicial system’s Office of the Executive Secretary and Centers for Disease Control and Prevention. They should also consider requirements for personal protective equipment, developing a health questionnaire to prescreen prospective jurors, designating appropriate paths of juror travel from the courthouse entrance to interior rooms, staggering times for jurors to arrive in smaller groups, using large areas or rooms in the courthouse for jury assembly, and planning for a higher number of jurors requesting to be excused based on COVID-19 symptoms, exposure and other health-related concerns.
According to Kristi Wright, the Office of the Executive Secretary’s public relations director, all 31 of Virginia’s circuits—which encompasses 122 individual circuit courts—have submitted plans seeking returns to jury trials.
Of those, a Virginia Supreme Court panel has approved five—for the Alleghany, Fairfax, Henrico, Norfolk and Stafford Circuit Courts. Loudoun’s plan is still awaiting a decision.
Those plans generally outline the ways in which the courts intend to keep jurors, judges, court reporters, bailiffs, clerks, attorneys and others safe from exposure to COVID-19. Fairfax’s plan features four key safety aspects—adhering to social distancing, mandatory wearing of face masks or shields at all times, “substantial and frequent” cleaning protocols, and allowing prospective jurors to be excused if they or someone they live with or care for had or is vulnerable to COVID-19.
But even if the Virginia Supreme Court does approve the Loudoun Circuit Court’s plan for jury trials, there might not be enough time to prepare for the Welsh trial to begin as scheduled on Oct. 5.
While the Virginia Supreme Court allowed the Fairfax Circuit Court to resume jury trials the day it issued the approval letter on Sept. 17, it did not allow the other four approved circuit courts to resume jury trials until 30 days after the issuance of the Aug. 13 approval letters.
Even so, according to the Fairfax Circuit Court’s approved plan, the first jury trial won’t begin until at least 45 days after the approval—creating a potential Monday, Nov. 2 start date. That will give the court staff enough time to retrofit the courtrooms with plexiglass and other protective installations.
The same wait period could be true for Loudoun.
When the Loudoun Circuit Court is allowed to proceed with jury trials, judges will have the discretion to move forward or delay jury trials, as laid out by Lemons’ initial Declaration of Judicial Emergency.
Thomas Walsh, Welsh’s defense attorney, said he is standing by for an answer from the Virginia Supreme Court or from Loudoun Circuit Court Judge James P. Fisher, who will preside over Welsh’s trial.