Lawyer says she saw exercising, laying down and other distractions during online voir dire

After summary defeats over juror masks at the state Court of Appeal and the California Supreme Court, civil defendants now want a mistrial declared in an asbestos case because they say the virtual voir dire was "riddled with various problems".

Jurors appeared to sleep, exercise and leave the room at times during a virtual questioning session this week, according to Tina M. Glezakos, lawyer for Fryer-Knowles Inc., a co-defendant in a personal injury case in Alameda County.

But the plaintiff's counsel, David L. Amell, said Friday he saw only minor, inconsequential issues with remote voir dire and that all jurors were attentive and took their oaths seriously.

A panel was sworn in virtually on Thursday.

Glezakos wrote in a declaration to the court Thursday, "The Zoom platform was configured such that, even in gallery view, it was not possible to see all 18 prospective jurors that were questioned as part of the first panel of jurors." She added, "As such, it was not possible to see in one screen shot the reactions and facial expressions of the potential jurors simultaneously when the attorney conducting voir dire was asking questions."

Glezakos said she witnessed the following: One juror "was laying in what appeared to be a bed, curled up and it is unclear if the juror was sleeping." Another was "working out on an elliptical machine" and one "had a child that was in and out of the room and appeared to leave the room at times with the child." Another juror had the camera feature disabled so it wasn't possible to see what that juror was doing or where the juror was.

"I also observed jurors that appeared to be using computers while having the Zoom meeting playing on another device," Glezakos wrote.

The allegations are the latest twist in the case that saw Glezakos's partner, Edward R. Hugo, a lead defense counsel in the case, booted from the courtroom Wednesday, after he showed up in person for the first day of voir dire.

Judge Brad Seligman wanted to conduct juror questioning without a mask and didn't feel that could be done safely with Hugo in the courtroom, according to court papers filed by the defense.

Hugo said he was sent home and never made it to the virtual jury questioning.

Hugo claimed the latest wrinkles have impacted his client's right to due process, and a chance for a fair trial is irreparably harmed.

"This court should declare a mistrial before the court, the parties and the public expend additional resources on a virtual voir dire process that has already proven -- after only one day -- to not only be unworkable, but also highly prejudicial to Fryer-Knowles Inc.," Hugo's motion read.

Wrinkles include mute commands being dictated by the moderator, thus hampering defense's abilities to raise objections, Hugo wrote. Objections were neither noted on record nor ruled upon, he said.

Hugo maintained that the judge's initial order allowed jurors to appear in court in person or remotely.

"The closure of the courtroom is at odds with the COVID-19 section of the Alameda Superior Court's website, which anticipates 'visitors to court facilities' and provides guidelines for their admittance," Hugo argued. "Instead, the court's decision to close its doors to counsel appears to have been based on convenience, i.e., to allow the judge to remain unmasked."

Hugo's crusade challenging Seligman's July 7 mask mandate for jurors was met with summary dismissals by the 1st District Court of Appeal and the California Supreme Court.

Hugo maintained masks shield jurors' facial expressions and body language, hampering his ability to assess their honesty.

Amell, counsel for preference plaintiff Ronald Wilgenbusch, opposed Hugo's petitions and any trial continuances. Voir dire is entirely a verbal exercise and face masks have no effect, he argued.

Wilgenbusch filed his lawsuit last year after he said he was diagnosed with mesothelioma. Wilgenbusch v. American Biltrite Inc. et al., RG19029791 (Ala. Super. Ct. filed Aug. 2, 2019).

Opening statements are to begin Tuesday.