WHY PHASE TWO DOES NOT MATTER

 As a young man returning from Vietnam, John Kerry appeared before the Senate Foreign Relations Committee in 1975 and famously said "how do you ask a man to be the last man to die in Vietnam?"

We pose this questions to the Chief Judges of Florida: "How do you ask a lawyer or juror or trial judge or clerk to die for a trial?"

Because "Phase Two" is just a phrase that is meaningless in a pandemic. The so called "good news" coming from Judicial Circuits and Counties across Florida is that various counties are entering Phase Two is nothing but an artificially created term.  For Courts, Phase Two is defined as 

No confirmed or suspected cases of COVID‐19 in the court facility within a 14‐day  period; or if confirmed or suspected cases have occurred in the court facility, deep  cleaning and disinfecting of exposed areas and applicable employee self‐quarantine  actions have been implemented.  2. Rescission of local and state restrictive movement and/or stay‐at‐home orders. 3. Improving COVID‐19 health conditions over a 14‐day period in the community,  including conditions such as the number of confirmed COVID‐19 cases and related  deaths in relation to a community’s population density, downward trajectory of  positive tests as a percent of total tests, size of particularly vulnerable populations,  and availability of medical facilities including emergency and intensive care capacity.  4. Adequate testing programs in place, increased availability of COVID‐19 tests, and  emerging antibody testing. 

Here is the problem: On September 11, 2020 Florida registered 3,650 cases. There are lies, damn lies, and statistics. One statistic is that the number on 9/11 is a 66% reduction from the high point of infections. But the other way of looking at it is that 3,650 souls on ONE DAY got infected with a disease which can and will kill some of them. And a similar amount were infected the day before and a similar amount will be infected the day after. By the time you read this, more than 10,000 Floridians will be newly infected with Covid-19. Yipee! The numbers are falling- except tens of thousands of people are still being infected every week. These are not the conditions under which it is safe to bring people back into aging Courthouses. Does anyone realize YOU CANNOT OPEN A WINDOW IN THE REGJB OR FAMILY COURT OR JUVENILE COURT? 

Feel like picking six? 

Full disclosure: Judge Soto has repeatedly made it clear that Miami will move very slowly and the announcement of phase two does not equal restarting the jury trial engine. Good for her. But this post is not aimed at just Miami-Dade, although Mr. Markus reported on his blog Tuesday that Judge Moore is sniffing around re-starting Federal Court sooner than January 2021. Nothing in this post is meant to imply criticism of the Miami -Dade State court Judges making this decision. This is a critique of Phase Two- it is meaningless. 

THE VIRUS IS SPREAD BY AEROSOLS: 

The CDC and WHO are resisting what science is telling the world- that the virus is spread by aerosols. Which means 1) Deep cleaning is mostly meaningless. The CDC now recognizes that "fomite transmission" (contact with objects) of Covid-19 is rare. A study of handwashing in England showed a slight decrease in infections; 2) Six feet separation as a safety measure is a fraud.  Six foot separation protects from droplet infection which occurs only when someone coughs or sneezes. No coughing or sneezing makes 6 foot separation meaningless. 

What the CDC and WHO do not want to acknowledge is that Covid-19 is spread by aerosols, not droplets. Aerosols are much smaller than droplets. Whereas gravity affects a droplet (like a cough or a sneeze) and brings it to the ground within moments, an aerosol containing Covid-19 can linger in the air for up to eight hours. 

To understand the scale of aerosols, the diameter of a human hair is about 80 microns, and aerosols smaller than about 50 microns can float in the air long enough to be inhaled. SARS-CoV-2 is only 0.1 microns in diameter, so there is room for plenty of viruses in aerosols.

Imagine a building full of hundreds of people exhaling aerosols smaller than what a mask can trap. How do you get around? It doesn't matter if you only allow one person in an elevator at a time- the aerosols from the last dozen people are in the air. Who wants to sit in a courtroom with 30, 40, 50 members of venire breathing out aerosols that can kill you? It only takes one asymptomatic person to infect a room. 

ER Doctor: I am sorry to tell you that you have Covid-19 and we have to put you on a ventilator.

Lawyer: Cough...cough...please...cough...run another...cough cough ....test. I cannot be ....positive...cough....I was only ....cough...in Court....cough cough cough...after they declared....cough cough ....phase two. How....cough cough...can I have gotten .....cough cough ...sick? 

One need only look at what is happening on college campuses across the country to understand that the simple fact of this disease is that it infects people when they are brought together and social distancing and handwashing and deep cleaning does  not stop transmission of infections. 

And one thing we know for sure is that Covid-19 cares not that a Chief Judge in Podunk County declares Phase Two for the County. 

What aerosol infections mean is that Phase two is meaningless. It is simply NOT SAFE to be inside around people who are breathing. If your judge promises to hold their breath during the hearing, then maybe. But otherwise, as difficult as this is for the Court System of Florida, it is not safe to hold in person hearings and trials until there is quick testing (five minutes or less) AND a safe an effective vaccine. Under those circumstances, a person seeking to enter a courthouse needs to take a five minute test and have been vaccinated. 

Only then will it be safe for people to appear in court. 

Until then, who wants to die for a jury trial?