Jury box. Credit: Jason Doiy/ ALM 

A Merced County judge declared a mistrial in a three-defendant homicide case Thursday after an expected witness told prosecutors he had been in contact with a police officer who tested positive for COVID-19.

Alex Martin, an appointed defense counsel in the case, said a deputy district attorney in the case informed the court after a lunch break that the witness, identified as a Merced public safety employee, was on his way to an emergency room Thursday after falling ill with a fever. A police officer the employee had contact with earlier in the week had been diagnosed with COVID-19, the respiratory illness caused by the novel coronavirus.

The 18-member jury was not in the courtroom at the time. But the expected witness had previously been in the courtroom when the jury was present, Martin said. He had also been in the room when lawyers were questioning members of a 160-person jury pool last week, Martin added.

"Everyone's been exposed," the lawyer said.

Merced County Superior Court Judge Carole Ash declared a mistrial and advised everyone in the courtroom to talk to the public health department or a doctor. The court's executive officer released a one-paragraph statement saying the courtroom will be disinfected.

"The court … has not been informed of any individuals testing positive for COVID-19 having direct contact with personnel and being in any buildings or courtrooms," the statement said.

Merced Court Executive Officer Amanda Toste did not respond to questions about whether members of the excused jury pool had been informed of the situation or whether court personnel, including Ash, have self-quarantined.

A message to court employees on the court's website explains that courts have been deemed an "essential" state service.

"If you are scheduled to report to work, please prepare to come in as planned," Toste wrote.

The office of Merced County District Attorney Kimberly Lewis referred a message to a county spokesman who could not be reached for comment.

More than 17,000 cases of COVID-19 have been reported in the United States, and some states, including California, have embraced "stay at home" orders in an attempt to stop the spread of the highly contagious virus. Across the globe, hundreds of thousands of people have contracted the virus, and the deaths of thousands of others have been attributed to the virus.

The Merced court mistrial and exposure fear are a nightmare scenario for California's 58 trial courts, whose leaders have approached the pandemic in different ways. Many courts have closed to the public and are offering only emergency services. Others are still handling cases while urging litigants to appear by telephone or to voluntarily agree to a delay.

Each trial court has been dispersing information differently as well, with some relying on emails and others press releases or messages to local bar associations.

"Information from the courts is patchy, sketchy and willy-nilly," said Eric Schweitzer, president of the defense bar's California Attorneys for Criminal Justice. "And it's not just from courthouse to courthouse. It's from department to department. It's a balkanized justice system."

In a letter to presiding judges and court executive officers Friday, Chief Justice Tani Cantil-Sakauye said her office received clarification from the governor that his shelter-in-place order does not apply to courts.

"The courts are—and continue to be—considered as an essential service," she wrote. "I recognize, however, that this new adjustment to health guidelines and direction likely may require further temporary adjustment or suspension of certain court operations, keeping in mind, as we all are, that we are balancing constitutional rights of due process with the safety and health of all court users and employees."

Merced County Sheriff Vern Warnke told the Merced Sun-Star on Thursday that the infected public safety employee is a Merced city police officer who was in contact with many people inside the Merced courthouse.

Martin said that before the jury was empaneled lawyers in the case had requested at least twice to continue the matter given the increasing numbers of reported coronavirus cases in the state and the expected length of the trial, which was not projected to finish until April 30. But Ash said she could not cite any legal basis for a delay, said Martin, who added that he thought the judge was making a reasonable decision.

Tani Cantil-Sakauye, chief justice of California. Credit: Diego M. Radzinschi / ALM

Merced received an emergency order extending the deadlines for trials to start from Cantil-Sakauye on Wednesday. The court on Tuesday announced procedures to reduce the number of people coming to the courthouse. But trials underway continued.

Martin said that, as far as he knows, his client was sent back to the county jail. Martin said he has not heard anything from the court since he left the courtroom Thursday. He remains at home, caring for his children. He said he feels fine but has not been able to get a coronavirus test.

Martin said he represents clients in three counties and is fortunate "to have a good network of friends" who have been able to handle his cases, for now.

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