Privacy concerns prevented positive COVID test from being reported to court

A line prosecutor in the San Mateo County District Attorney's Office tested positive for COVID-19 last month, but the office didn't notify the superior court because of concerns about protecting the prosecutor's privacy.

The courtrooms where the prosecutor appeared were identified informally among attorneys who work at the courthouse, many of whom said they know who she is and whether they were near her.

A week and half later court leaders said they found out that the virus could have been spreading within the Redwood City Hall of Justice following the attorney's last appearance on June 16.

At least one defense attorney who appeared in the same courtroom as the prosecutor quarantined himself. It's unclear how many court staffers have done so, as court officials would not release that information.

The court leadership learned of the positive test when a county risk management agency sent an email asking to do a deep clean of the courtrooms, San Mateo County Superior Court Executive Officer Neal Taniguchi said in an interview Thursday. He said court staff didn't think that was needed because they clean the courtrooms sometimes twice a day.

"But it begged the question as to why we're getting this request, and it turned out that in the sequence of emails we figured there was a deputy DA that had been a potential exposure," Taniguchi said.

The attorney, whom District Attorney Stephen M. Wagstaffe would not identify, had quarantined herself after her husband tested positive on June 16 -- the day she last appeared in court. A day later she tested positive, and a second test on June 19 confirmed it. That's when she alerted Wagstaffe.

Wagstaffe said he notified some 30 staffers in his office who had come in contact with her, as well as the county health department, whose job it is to do contact tracing. But he said it wasn't his responsibility to report it to the court. It was the health department's job, he said.

"If I notified the court, I'd have to identify who the person is," Wagstaffe said in an interview. "And that violates their privacy, and I'm not going to do that to my employees."

"Now, if the employee had said, 'I'm willing to sign a waiver,' I would have done it differently," Wagstaffe added. "Then I would have notified people."

Charles Smith, the defense attorney who quarantined himself after realizing he had appeared in the same courtrooms as the infected prosecutor on June 15 and 16, said enough information was given out so the lawyers could figure out if they had been exposed.

The San Mateo County Private Defender Program "was informed which calendars they weren't on and there are so few calendars I figured it out," Smith said. "The PDP has made sure not to disclose who the DA is."

Taniguchi said while he thinks Wagstaffe makes a valid point about the privacy of his deputy, the court still wants to find a protocol "so that we can at least then discuss with our employees whether or not they were in close contact" with the prosecutor.

Wagstaffe said the health department told him if everyone who was exposed to the prosecutor who tested positive had worn a mask and socially distanced, the danger of the virus spreading was minimal.

Smith agreed his risk of contracting the virus is statistically low because he wore a mask."It's more of an issue of wanting to know," said Smith, who expressed concern about possibly being asymptomatic and spreading the virus to his wife, who works in a hospital. "Because then we can make a decision for ourselves about whether we want to go back to the courthouse or for that matter if we want to go to the grocery store."

"A lot of people in the courthouse don't feel like they're being given any reassurance that they're not going to be exposed," Smith added in a Thursday interview.

Since April, the court has mandated everyone who enters court buildings must wear a mask and socially distance. San Mateo County Presiding Judge Jonathan E. Karesh said in April that based on his observations, everyone was abiding by the rules.

Lisa McGuire, chief defense attorney for the Private Defender Program, said she learned of the positive test through word of mouth several days after the results came back. She said she immediately called Wagstaffe and he confirmed it was true.

"These are all new circumstances and new decisions to be made," she said. "I would like to think that going forward, there will be a different response to any such information. I hope we will all err on the side of caution. For me, more information is obviously better than less."

On June 23 the court held a meeting with the DA's office, the Private Defender Program and several county entities, including the health department, to develop a protocol for reporting positive tests without breaching privacy laws. No agreement has been reached.