Potential COVID-19 exposure delays Avenatti trial

SANTA ANA -- The jury hearing Michael J. Avenatti's fraud trial was sent home early Wednesday after one of the panelists disclosed she was exposed to COVID-19 at a gathering last weekend.

"I simply propose we take the day off. I simply prefer we be safe than sorry," U.S. District Judge James V. Selna said. "If the situation isn't clarified by tomorrow, we'll excuse the juror and we'll proceed."

Avenatti is in his third week of trial on federal charges that he stole about $10 million from client settlement funds. USA v. Avenatti, 19-CR-00061 (C.D. Cal., filed April 10, 2019).

This is the second time a juror in the Avenatti trial has had a COVID-19 scare. A juror was excused a few days into testimony after telling the court his roommate was experiencing symptoms. The roommate tested negative, but the trial resumed with an alternate juror.

The specter of jurors becoming sick is an issue judges are grappling with as courts resume longer trials with infection rates rising in California, even among those who have been vaccinated against COVID-19.

On Monday, in the courtroom next to Selna's, the fraud trial of a neurosurgeon was briefly halted after one of the jurors tested positive for the coronavirus over the weekend. U.S. District Judge Josephine L. Staton determined that it was safe to proceed with an alternate on Wednesday after a two-day break. USA v. Tauber, 18-CR-140-JLS (C.D. Cal., filed July 12, 2018).

Judges and lawyers are trying to find ways to prevent coronavirus related disruptions, especially in long jury trials. Earlier this month, in preparation for a three-month legal malpractice trial across the street in the Orange County Superior Court, lawyers agreed with the judge that they would dismiss from the panel anyone who was not vaccinated for COVID-19. CashCall Inc. v. Katten Muchin Rosenman LLP, 30-2017-00914968 (O.C. Super. Ct., filed April 4, 2017).

That case settled last week, on the eve of trial. Jennifer L. Keller, a partner at Keller/Anderle LLP in Irvine and one of the attorneys in the case said Wednesday that judges are facing a problem that doesn't have easy answers. Remote jury trials are something that most judges and lawyers are loath to do. Sequestering jurors to keep them safer would be too costly, Keller said.

"It's hard enough already to get jurors to commit to long trials. So imagine the response if they're told they're going to be locked up for several months away from family and friends. I just don't see that happening," Keller said. "Still, we're living in unprecedented times, and variants may emerge that could change the rules. If a new variant were especially deadly, I could see the courts considering all kinds of measures that look unlikely now."

The issue may arise again soon. Jury selection is scheduled to begin in San Jose this month for the fraud trial of Elizabeth Holmes, founder of the blood testing company Theranos.