Ashland County Courthouse in Ohio. Photo: Courtesy Photo

The case that had been set to become Ohio's first trial to be held in the midst of the COVID-19 pandemic has been pushed back more than a month, following an appeal to the state's Supreme Court and a decision by the common pleas judge as the trial date approached.

On Tuesday, Ashland County Court of Common Pleas Judge Ronald Forsthoefel granted a continuance in the case against Seth Whited. A new trial date has been set for June 29.

Whited had initially been ordered to face trial earlier in the month, in what was likely the first case to start during the pandemic. Those proceedings, however, were cut short when Whited had to be escorted out of the courthouse after suffering breathing problems and nearly collapsing. Although the incident was thought to be a panic attack, both Whited and his lawyer were quarantined following the episode, which was first reported by Law.com.

WATCH THE PROCEEDINGS: This video shows the first half of the proceedings that took place on April 28 in the Ashland County Court of Common Pleas in the first voir dire to occur following the COVID-19 outbreak.

The judge initially set to have the case move forward again on May 12. Forsthoefel's efforts to push the case forward garnered criticism from the defense bar, and eventually prompted Whited's attorney, Adam Charles Stone of Bucyrus, Ohio, to file a petition to the state Supreme Court, raising a host of constitutional issues that could come into play if attorneys are forced to wear masks and practice social distancing during trial.

On May 6, Forsthoefel issued an opinion holding that, although he believed the case could still go forward while practicing social distancing, he did not want the case to force the Ohio Supreme Court to have to make any "hastily drawn opinions or snap decisions" about constitutional questions unique to the COVID-19 health crisis.

"This court is not aware of any constitutional right under the Sixth and Fourteen Amendments to the United States Constitution and/or Article I, Section 10 of the Ohio Constitution to whisper into a client's ear, or that attorney-client communication can't be effectively completed with a pencil and a ruled legal pad, an accommodation for the use of silenced cellphones to communicate by text message, or to simply request a brief recess to confer verbally in a separate room outside the presence of the jury and other trial participants," he said. "This court is not convinced that the requirement of the use of face masks, unless standing or seated in a stationary position, adversely impacts defense counsel's ability to meaningfully cross-examine witnesses or present witnesses."

WATCH THE PROCEEDINGS: This video shows the second part of the proceedings in the voir dire in the trial against Seth Whited. The defendant can be seen exhibiting signs of a panic attack around the 2 hours and 25 minute mark.

However, the trial judge said the state's highest court should not be forced to determine these issues on an emergency basis.

"Hasty, rushed decisions can lead to unintended, negative consequences, and perhaps lead to a determination of rights that after additional thought and reflection would become regrettable later," he said. "This court certainly doesn't wish to put the justices in such a position with so little time to deliberate."

On Tuesday, the judge issued an order saying jury selection should begin June 29.

Forsthoefel's decision came two days after Stone filed a complaint to the state Supreme Court, which argued that the prior trial attempt had been "bereft of constitutional protections[.]" The filing noted that, in an effort to comply with social distancing procedures, the judge had ordered everyone to wear masks, and that the gallery be used for the jury. Although the proceedings were livestreamed, the move barred the public from the courtroom.

The changes, Stone argued, made it difficult for him to communicate with his client, and made it impossible in some instances to perform cross-examination. He further argued that the need to wear masks hid the jurors faces, making voir dire difficult, and increased jurors' anxiety, making it hard for them to focus on the case.

He also said that, in the weeks before the trial, the state's stay-at-home orders made it difficult for him to interview potential witnesses and he had been unable meet with Whited in person before the trial. Further, Stone argued, the proceedings violated the confrontation clause, since the defendant would not be able to be face-to-face with his accuser, and went against the right to a public trial.

The petition asked not only that Forsthoefel be ordered to stay Whited's case, but also that the justices establish constitutionally sound procedures that courts across Ohio could follow.

" This action involves the need for this honorable court to promulgate uniform trial procedures during the current COVID-19 pandemic that will protect the constitutional rights of defendants, while also protecting their safety and the safety of their attorneys, jurors, court staff and personnel[,]" the petition said.

In a response to the high court, Forsthoefel argued that the issue was moot, since he agreed to postpone the trial another month. Regarding the constitutional arguments, he said those boiled down to ineffective assistance of counsel claims, which were premature.

" These are matters that appellate courts routinely review in direct appeals from criminal convictions," he said. "For [Stone] to raise these claims at this stage is mere speculation; while there may have been practical difficulties experienced during the jury selection process on April 28, there is no guarantee that these same problems will occur when the case is ultimately tried, or that [Stone] will be able to demonstrate prejudice if they do occur."

On May 11, the high court dismissed the petition, saying that, since the trial wasn't imminent, Stone's claims were not ripe for review.

Although Whited's case was set to become the first trial to commence in the wake of the COVID-19 outbreak, another case is likely to win that distinction, as several cases are now set to potentially begin trial in Ashland County on June 2, a court official said. Also, according to its website, the Darke County Court of Common Pleas, which is on Ohio's border with Indiana, is set to begin a trial on May 15.

Stone did not return a call seeking comment, and a court representative said Forsthoefel was declining to speak about the pending Whited case.