Mask Confusion: Judge begins enforcing Central District warrant, 2 months later

Before starting a recent hearing in a lawsuit related to local homeless services, a California federal judge introduced an unusual guest: the head of the courthouse clerk’s office, there to make sure everyone in the courtroom wore a mask at all times.

“Do we have to mask ourselves?” U.S. District Judge David O. Carter asked Terri Steele, deputy in charge of the Southern Division of the Central District of California in Santa Ana.

“That’s right, your honor,” Steele replied.

“And I asked the administrative officer to make sure we are in compliance?” Carter asked.

“Yes, your honor,” Steele replied.

“And masks at all times, right?” Carter asked.

“Yes, your honor,” Steele replied.

“Ah, great. So if you don’t have a mask, we have one in the hallway for you,” Carter told the audience.

What the judge did not mention was that for two months prior he had allowed anyone who wanted to go without a mask into his courtroom, in violation of an order he said he had learned existence until long after its publication.

“It changes all the time for me,” Carter told attorneys in another hearing later in the week. “I think it’s still discretionary; I learn that it is mandatory.

Confusion at the clerk’s office

The judge’s confusion highlights the challenges within the judiciary as lawyers, judges and court staff navigate COVID-19 protocols, which can differ from courthouse to courthouse and even from one courtroom to another.

At the Santa Ana federal courthouse, the confusion seems to have spread to the clerk’s office. Steele said in an Aug. 23 email that the use of masks in court was at the discretion of each judge, which Law.com reported in a Sept. 3 article about Carter telling unmasked attorneys, ” If you get COVID, congratulations.

But under an order from Central District Chief Judge Philip Gutierrez and a notice from Clerk Kiry Graymasks changed from optional to mandatory July 28, after the Centers for Disease Control and Prevention began recommending that all people in areas with high or substantial COVID-19 transmission wear masks indoors, regardless of their vaccination status. Orange County’s transmission area has not fallen below “high” since this recommendation.

It’s unclear why the clerk’s office said in August masks were still discretionary and officials didn’t return multiple messages seeking comment. But the judge made it clear in court that he felt left in the dark about the changing policy.

U.S. District Judge David Carter of the Central District of California. (Photo: Meghann M. Cuniff/ALM)

“I was out of the country; I didn’t realize we had moved to the mandatory masking stage,” Carter said, referring to a trip to Poland. “Whatever those rules are, it changes for me.”

Carter was at the courthouse and had a schedule in person on the day the warrant was issued on July 28 and again on July 29, but then traveled to Poland and did not have another schedule until August 16. He began a civil lawsuit shortly after returning in a civil rights case against the Orange County Sheriff’s Department. It was the trial in which he told the lawyers, “If you get COVID, congratulations. You are totally responsible. I’m not kidding.” and said they were personally responsible for cleaning up their own areas.

The plaintiff’s attorney, Narine Mkrtchyan, said she did not recall any concerns from jurors or witnesses about the lack of masks.

“We didn’t mind either, because you can’t communicate well with masks on anyway,” Mkrtchyan said in an email to Law.com. “I actually appreciated that Carter didn’t force it on us because of my accent.”

Judges’ protocols differ for witnesses

In some ways, however, judges at the Orange County federal courthouse still have discretion over mask use in the courtroom.

During Michael Avenatti’s criminal fraud trial, U.S. District Judge James Selna allowed witnesses to testify wearing transparent face shields instead of masks, with plexiglass surrounding the witness box.

And in a civil lawsuit between bioscience companies ChomaDex and Elysium Health, U.S. District Judge Cormac Carney allowed witnesses to testify without face shields or masks because the witness stand was protected by plexiglass, which was cleaned at the end of the day.

Carney said in an email to Law.com on Thursday: “Obviously I would not allow any witness to testify if they have symptoms of COVID, or if they have been exposed to someone who has the virus or has symptoms.”

“Every attorney who has appeared before me in a jury trial has felt the same way about witnesses removing their masks while testifying, again as long as the witness is behind the plexiglass. I also think the plexiglass in the witness box is a far superior protective measure than a mask or a shield,” Carney said.

Gutierrez, the chief justice, did not respond to messages seeking comment, but he made it clear in emails to his colleagues on the bench that masks are mandatory for everyone in court.

Kate Corrigan, a partner of Corrigan Welbourn Stokke in Newport Beach who frequently appears in Carter’s courtroom, said many people in the court system were confused about the protocol change, but “it’s all kind of settled.” “, with masks now being the norm.

Yet outliers face few consequences if they are federal judges appointed for life. Reminder emails and “mask required” signs from the General Services Administration, and posted around the courthouse, address the scope of enforcement efforts, in addition to Carter’s invitation to court administrator.

Gutierrez emailed Central District judges on Sept. 27 and Oct. 4 informing them of the transmission rates for each county in the Central District and reminding them of the order he issued in June.

“As a result, pursuant to General Order 21-08, all persons present in the courtroom are required to wear masks for all court proceedings in all divisions of the District given the current levels of community transmission of COVID- 19,” according to the September 27 email.

Other “mask required” signs appeared around the courthouse that week, including one outside Carter’s courtroom.

A day after Gutierrez’s email, Carter told lawyers in his courtroom for a bench trial that there was no mask mandate and that they could remove their masks if they wanted it. But that all changed for the September 30 homeless trial hearing, where Carter introduced the head of the clerk’s office and said his own clerk had informed him of the change two days prior.

Nationwide contentious masks

The mask issue has been litigated in courts across the country.

Avenatti’s attorney, Dean Steward, objected to jurors wearing masks during the voir dire and trial, but Selna rejected it. Selna’s decision was similar to one made a week later by Carter.

In this case, Carter rejected a new trial offer of Steward for an ex-chiropractor convicted of insurance fraud, after Steward argued that masked jurors interfered with the voir dire and key trial decisions, such as whether the defendant should testify .

Carter’s order cited similar mask-approval rulings in New York, Georgia and New Mexico, and he noted that he also gave witnesses the option to testify wearing masks, but none did. ‘did. The jurors, however, mostly remained masked, and Carter said that was fine.

“The accused and the defense lawyer were also able to observe the behavior of the jurors during the trial. In particular, their body posture and their eyes expressed their expressiveness, whether positive or negative, and highlighted their alertness.

The trial took place in June, so masks were not yet mandatory in Central District courtrooms.

Carter’s new compliance with the July 28 warrant has caused some concern among lawyers who had grown accustomed to the absence of masks, and one asked during an October 1 hearing in a case of murder in a maritime jurisdiction if witnesses would be required to bring them to their next trial, currently scheduled for next month.

Carter said he would address issues as they arise, “but right now it’s mandatory.” That’s it.”

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