As courts resume operations, masks are thorny issue

While policies requiring face masks in court have not been especially problematic during the limited in-person hearings, when doors begin opening for jury trials in June the masks might become a major problem, judges and attorneys say.

Yolo County Presiding Judge Samuel T. McAdam, one of the first in the state to implement a face covering policy, said other than court reporters expressing difficulty understanding people through the masks, his court has adjusted well.

Like several other presiding judges, McAdam left room in his policy for judges to exercise discretion in situations where face masks present logistical problems and are allowed to ask parties to safely remove them if they feel it necessary.

Presiding Judge Kevin C. Brazile took a stricter approach in Los Angeles County, announcing Saturday that all superior court judicial officers would be required to wear face masks while on the bench.

"The court is committed to protecting the health and safety of the public, attorneys, justice partners, judicial officers and employees," Brazile said in a statement. "Most medical and health care experts recommend the use of face coverings during this pandemic. Paired with the protocols for social distancing, we can help to slow the spread of COVID-19 in our courthouses and communities."

The Los Angeles courts began providing judicial officers and employees with two face masks to use at work. Employees, also required to wear them, will give out paper masks at courthouse entrances for any member of the public who does not have one.

Most courts are only hearing the most time sensitive matters, such as criminal arraignments, but expect to hold jury and bench trials next month. That brings up the issue of judges, attorneys, defendants, jurors and witnesses not only having occasional trouble understanding what each other may be saying behind the mask, but assessing another party's attitude and truthfulness.

When it comes to jury trials, it will be a "balancing act" between "public safety and the need to assess credibility," McAdam said.

"You can likely have any sort of hearing with a face covering on until you get to that trial, until you get to that dispositive issue," McAdam said. "I think at that point, you would really need to be able to see the whole face and create a safe environment where somebody was able to take the face covering off so everyone can see the person testifying in full," McAdam said.

"In our rules, there is an exception for good cause and that would be if the parties were having a hard time understanding the judicial officer or the court reporter was having a difficult time reporting the case," McAdam said in a phone interview. "If removing the face mask would make a complete record and we could do so in a safe way, you might allow that person to take it off. including the judicial officer."

In Riverside County, Presiding Judge John W. Vineyard and his court have been exploring possible remedies to several challenges in anticipation of jury trials and finding a solution to the mask problem is at the top of the list.

"When credibility is a central issue in the case at the dispositive hearing then I think you're going to have to find a way to take that testimony without the face cover and I agree that we're not there yet but we'll get there this summer," he said.

"We don't have a clear answer yet but we are considering using a plexiglass partition, for example, around the witness box so that somebody can sit there and not have to wear a mask but still protect people in a courtroom," Vineyard said. "We've also been looking at various versions of the plastic face shields, the plexiglass clear face shields that look kind of like a welder's mask. I think we have three versions that we are looking at to make those optional. So, for example, we can tell a lawyer, 'You can wear a mask or you can wear this clear plexiglass face covering but you need to keep your face covered. But we're still working on that."

As in Yolo County, San Bernardino County Presiding Judge Michael A. Sachs said he is considering a practice that would leave discretion to the judge hearing the matter as to whether it is appropriate to have the mask removed.

"Because we've limited the amount of people who can come into the courtroom, typically you only have the lawyer, the court reporter, the judge, the clerk and the judicial assistant and maybe a client," he explained. "And we're able to keep six feet distance from everybody, so the masks are encouraged when you can't keep the six feet apart."

"But again, if you can't get an accurate record, the judge can ask the mask be removed temporarily," Sachs said in a phone interview.

Sachs said his court will begin to open up as soon as June 1.

"Our chief concern is the health and safety of our legal community and that includes our judges, our staff, the lawyers who appear in front of us and of course the inmates in custody. So we will continue to have these procedures in place until we're satisfied that we can forgo the masks," he said. "We've asked our public health officer to take a look at our opening plan and our safety plan and we've gotten a thumbs up at this point in time and that's our main goal at this juncture.

Criminal defense attorney Karen L. Goldstein of the Law Offices Of Karen L. Goldstein in Los Angeles, said aside from various practical issues of wearing a mask in court, her biggest concern is her clients will not be afforded their right to a fair trial if she and they are wearing masks.

"I think we need to tread very carefully as to how we start up again with jury trials," Goldstein said in a phone interview.

For a juror who might already have reservations about coming to court, seeing a defendant wearing a mask could lead to conjuring up of stereotypical images of bank robbers and other criminals, she said.

"The mask almost violates the presumption of innocence optically," she said. "While most people frankly do not commit robberies wearing a mask, the classic image is that a bank robbery is done while wearing a mask. To have a juror, even if they also have mask, staring at your client, they're already inclined to think your client is guilty because the presumption of innocence is in the law but not really in the minds of the jurors."

Considering the difficulties defense attorneys will likely face, criminal defense attorney Lara Yeretsian of Yeretsian Law in Glendale, said she will move for a continuance when possible if masks are required during trials. Her greatest concern is she won't be able to pick up on non verbal cues during trial.

"It's not good enough just to look at someone's eyes. You have to see what's going on with the rest of the face, to read, to see the cues so you know what to ask next for example or to know you are making the impact you need to make."

Mike Arias of Arias Sanguinetti Wang & Torrijos LLP who serves on multiple court committees, said the only civil practitioners going to court right now are doing so for ex parte applications.

"Originally the court was requesting that everybody try to use Court Call, and we pushed really hard to ask the court to consider doing all types of hearings, status conferences, motions hearings, discovery conference remotely," Arias said. "One of the reasons for that, and why I expressed concern, is because when I'm arguing a motion or making an appearance or need to advocate a position, a lot of what you look at is not just the arguments you make, but the body language of the judges, body language of the opposing counsel. What they are doing with their eyes and all that stuff is very important. "

Starting June 22, the Los Angeles County court's preference will be for everyone to appear virtually by video for civil cases, he said, "which will allow us not to have that mask problem."