SAN FRANCISCO (CN) — Witnesses testifying in an upcoming criminal trial will be required to wear transparent face masks to keep the court in compliance with San Francisco’s public health directive, a state court judge ruled Thursday.
“This court’s number one priority is the health and safety of those who enter the courthouse and the prisoners in county jails,” San Francisco Superior Court Judge Vedica Puri said at a pretrial hearing at the Hall of Justice Thursday morning.
Holding up a bundle of transparent masks wrapped in plastic, she added, “The court finds this to be a solution.”
Puri’s ruling comes in response to a motion filed by Deputy Public Defender Sierra Villaran to allow face shields to be used during the critical moments of a jury trial for a man accused of residential burglary.
Villaran had proposed that the court require both cloth face masks and transparent shields for witnesses, who would remove the masks on the stand and testify while wearing just the shields, so jurors could still read their facial expressions and assess their credibility. Witnesses will also sit behind plexiglass panels.
“Micro-expressions are so critical,” Villaran said, adding that her client has the constitutional right under the Sixth Amendment to confront witnesses in open court.
But Puri said “transparent masks more than suffice to protect the right to confrontation.”
She cited Maryland v. Craig, where the U.S. Supreme Court held that the Sixth Amendment does not guarantee a criminal defendant the absolute right to a face-to-face confrontation with witnesses.
Puri said protecting the public from a deadly virus is also the court’s primary concern, and that the Sixth Amendment’s confrontation clause must be interpreted in that context.
“I was a trial lawyer. I’m very sympathetic to the notion of reading faces — jurors’ faces, witnesses’ faces, everyone’s faces,” Puri said. “But we are in a pandemic and that takes precedence.”
The Covid-19 pandemic and resulting stay-at-home orders has thrown a wrench into the whole process of holding a jury trial. Courts throughout California put trials on hold while they tried to figure out how to safely assemble jurors and have multiple attorneys, court employees, bailiffs, and the press and public in one place while keeping everyone six feet apart.
“We have adapted to a new way of life,” Puri said. “The very way we have been functioning has been upended and has forced us to change. So must our court operations.”
The judge nixed the face shield idea, saying it wasn’t up to her to determine whether shields are more or less effective than masks at preventing the spread of Covid-19. “It’s not for me to undo the current order we are under,” she said.
Villaran had filed a declaration from Dr. Peter Chin-Hong, an infectious disease specialist and professor at the UCSF School of Medicine, who said face shields could keep people safe in the courtroom for hours. Puri found Chin-Hong’s declaration conclusory and noted that San Francisco’s public health order on face coverings makes no mention face shields as an option.
Villaran had also asked that jurors be given face shields during voir dire, and that her client be allowed to wear only a face shield during the trial to inhibit juror bias.
When Puri wondered how Villaran’s client, David Brown, would be prejudiced by wearing a face covering when masks will be required by everyone in the courtroom, Villaran said, “Cultural bias runs deep.”
Jurors often watch defendants for facial cues during trial, Villaran said, noting their reactions to rulings, testimony, and exhibits. Villaran also worries that jurors may have a biased reaction to seeing a young Black man with his face covered.
Puri drew a comparison between the potential prejudicial impact of face coverings with a defendant’s refusal to take the stand in their own defense. “A lot could read into that,” she said, adding that judges usually instruct the jury not to consider a defendant’s lack of testimony in evaluating their guilt or innocence. “How does that not cure the problem?” Puri asked.
“It’s shifting the burden for Mr. Brown to be expressive in other ways,” Villaran said. “This is a visual cue that could trigger things in jurors’ minds.”
But Puri didn’t waver and said Brown would have to wear a mask — though he can opt for a transparent one provided by the court.
“We’ll make it abundantly clear that the reason the defendant is wearing a mask is because he is under a court order because of the pandemic,” Puri said. “Is it going to be perfect? No, not given the circumstances we’re under. But everybody in the courtroom will be under the same masking order.”
On Monday, prospective jurors will assemble for voir dire in a courtroom set up for social distancing with orange numbered placards on chairs spaced six feet apart. The main courtroom has the same arrangement.
Puri did not explicitly order jurors to wear transparent masks during questioning, but their faces will have to be covered.
One other thing is for certain — Brown won’t be allowed to sit next to his attorney. In the courtroom Thursday, Brown, clad in khakis, a light blue button-down shirt and an orange face mask, sat to the side of the counsel table conspicuously apart from Villaran, who objected to the new arrangement.
“I don’t think there’s any way for Mr. Brown to have a fair trial from six feet away,” said Villaran. “The perception of the jury is that I don’t trust him, that I don’t want to be near him. There’s an implication of guilt.”
Villaran also said that the distance will impede Brown from conferring with counsel during the trial.
Puri said she had been remiss in not ordering Brown and Villaran to stay six feet apart earlier.
“Nothing is the same,” she said. “The days of counsel whispering to a client seated next to them with the pandemic is bluntly, over. I cannot take a chance at allowing a break in social distancing.”
As a compromise, Puri said she would allow as many breaks as necessary for Brown to confer with Villaran. Both the public defender’s office and the district attorney have also looked at using the same devices as interpreters use to communicate with non-English speakers.
Outside the courtroom, Villaran said she still preferred a face shield and was disappointed that Puri had not allowed Chin-Hong to testify about their efficacy. She also noted Governor Gavin Newsom’s statewide face-covering guidance, which supersedes any local public health orders, allows for face shields as an alternative to masks.
But she seemed hopeful about Puri’s transparent face mask solution.
“We’ll have to see how they pan out,” she said. “It’s not a bad alternative.”