Before beginning 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.

"We're mandatorily masking?" U.S. District Judge David O. Carter asked Terri Steele, deputy in charge of the Central District of California's Southern Division in Santa Ana.

"That is correct, your honor," Steele answered.

"And I've asked the administrative officer to make sure we're in compliance?" Carter asked.

"Yes, your honor," Steele answered.

"And masks at all times, is that correct?" Carter asked.

"Yes, your honor," Steele answered.

"Oh, excellent. So if you don't have a mask, we have one in the hallway for you," Carter told the audience.

What the judge didn't mention was that, for two months prior, he'd been allowing anyone who wished to go maskless in his courtroom, in violation of an order he said he didn't learn of until long after it was issued.

"It changes on me all the time," Carter told lawyers in another hearing later that week. "I think it's still discretionary; I find out it's mandatory."

Clerk's Office Confusion

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 courtroom to courtroom.

At the federal courthouse in Santa Ana, the confusion appears to have extended 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 of Court Kiry Gray, masks moved from discretionary to mandatory on July 28, after the Centers for Disease Control and Prevention began recommending all people in areas with high or substantial COVID-19 transmission wear masks indoors, regardless of vaccination status. Orange County's transmission area hasn't dropped below "high" since that 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 clear in court he feels he was left in the dark about the shifting policy. 

"I was out of the country; I didn't know we'd gone to mandatory masking stage," Carter said, referring to a trip to Poland. "Whatever those rules are, it's changing on me."

Carter was at the courthouse and had an in-person calendar the day the mandate was issued on July 28 and again on July 29, but he then traveled to Poland and didn't have another calendar until Aug. 16. He started a civil trial shortly after his return in a civil rights case against the Orange County Sheriff's Department. That was the trial in which he told attorneys, "If you get COVID, congratulations. You are totally responsible. I'm not joking." and said they were personally responsible for cleaning their own areas. 

Plaintiff attorney Narine Mkrtchyan said she doesn't recall any concerns from jurors or witnesses about the lack of masks.

"We did not mind that either, because you cannot communicate well with masks anyway," Mkrtchyan said in an email to Law.com. "I actually appreciated Carter not forcing it on us because of my accent."

Judges' Protocols Differ for Witnesses

In some regards, however, judges at the Orange County federal courthouse still have discretion over courtroom mask usage.

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

And during a civil trial 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 Thursday in an email to Law.com, "Obviously, I would not allow any witness to testify if she or he is showing COVID symptoms, or has had exposure to someone who has the virus or is showing symptoms of it."

"Every lawyer that has appeared before me in a jury trial has felt the same about the witnesses removing their masks when testifying, again as long as the witness is behind the plexiglass. I also believe that the plexiglass on the witness stand is a far superior protective measure than a mask or shield," Carney said.

Gutierrez, the chief judge, didn't respond to messages seeking comment, but he's made clear in emails to his bench colleagues that masks are mandatory for everyone in court. 

Kate Corrigan, a partner with Corrigan Welbourn Stokke in Newport Beach who frequently appears in Carter's courtroom, said many people across the judiciary have been confused about shifting protocols, but "everything's kind of settled down," with masks now the norm. 

Still, outliers face few consequences if they're federal judges with lifetime appointments. Reminder emails and "masks required" signs from the General Services Administration, and posted around the courthouse, are about the extent of enforcement efforts, besides Carter's invitation to the court administrator.

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

"Accordingly, pursuant to General Order 21-08, everyone in the courtroom must wear masks for all in-court proceedings in all the District's divisions given the current COVID-19 community transmission levels," according to the Sept. 27 email.

More "masks required" signs appeared around the courthouse that week, including one outside Carter's courtroom.

One day after Gutierrez's email, Carter told attorneys in his courtroom for a bench trial that there was no mask mandate, and they could remove their masks if they wished. But everything changed for the homeless lawsuit hearing Sept. 30, in which Carter introduced the head of the clerk's office, and said his own clerk had informed him of the change two days prior.

Masks Litigated Nationwide

The issue of masks has been litigated in courts across the country.

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

In that case, Carter rejected a new trial bid from Steward for an ex-chiropractor convicted of insurance fraud, after Steward argued masked jurors hindered voir dire and key decisions in trial 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 with masks, but none did. Jurors, however, remained mostly masked, and Carter said that was fine.

"Defendant and defense counsel were further able to observe the jurors' demeanor during trial. In particular, their body posture and eyes expressed their expressiveness, whether positive or negative, and made apparent their alertness."

The trial took place in June, so masks weren't yet mandatory in Central District courtrooms.

Carter's new compliance with the July 28 mandate has caused some concern for attorneys who'd become accustomed to no masks, and one questioned during an Oct. 1 hearing in a maritime-jurisdiction murder case whether witnesses would be required to wear them during their upcoming trial, currently scheduled for next month.

Carter said he'd deal with the issues as they arose, "but right now, it's mandatory. That's it."