A sign reminds customers to wear a protective mask to stem the spread of the Coronavirus at a MOM's Organic Market in Baltimore. June 16, 2020. Photo: Diego M. Radzinschi/ALM

Can a lawyer effectively pick jurors when they are all wearing face masks?

It's not just a theoretical question. A defendant set to begin voir dire this week in an asbestos trial in Oakland cited face masks on prospective jurors as a primary concern in a July 9 petition before the California Supreme Court.

Face masks "conceal their appearance, demeanor and reactions," which does not comply with California Code of Civil Procedure's rules pertaining to jury selection, according to a lawyer for the defendant, Fryer-Knowles Inc. The petition suggests that prospective jurors "may give one answer while smirking or smiling under their masks."

More broadly, the petition asked the high court to implement rules for jury selection among the state's 58 counties to avoid "a patchwork of inconsistent procedures."

"There is literally no uniformity," said Edward Hugo, of San Francisco's Hugo Parker, an attorney representing Fryer-Knowles, whose trial is set to take place in Alameda County Superior Court. "And there should be—the trial rules, basic rules and procedures. Due process shouldn't change because you're in one California county, versus another California county."

The high court denied the petition July 10.

But the issue promises to resurface as courts across the nation struggle to hold jury trials amid a growing COVID-19 pandemic.

The California petition comes as judges in West Virginia and South Carolina have threatened to hold asbestos trials during the pandemic. In Texas, the first civil jury trial since courthouses reopened there took place last month, and a federal criminal trial restarted this week in San Francisco.

In California state courts, Hugo said San Francisco Superior Court Judge Harold Kahn was dealing with similar pretrial questions about jury selection last week in another of his asbestos cases before it settled.

"To my knowledge, my writ was the first," Hugo said. "And I would bet my house that my writ will not be the last."

David Amell, who represents the plaintiffs in this week's trial, Ronald and Judith Wilgenbusch, said his clients "absolutely disagree" with the defense argument, which "fails to acknowledge that all prospective jurors take an oath to tell the truth prior to answering questions."

"Facial coverings do not prevent a prospective juror from articulating their opinions in response to questions from a lawyer," Amell, of Maune Raichle Hartley French & Mudd in Oakland, wrote in an email. "There is no reason to believe that an experienced lawyer skilled in the art of questioning cannot fairly assess a prospective juror's impartiality simply because they wear a covering over their nose and mouth."

He also wrote that Ronald Wilgenbusch, diagnosed with mesothelioma, a deadly lung cancer tied to asbestos exposure, "would not live to see his day in court" with more trial continuances.

"The court closures have been a boon to asbestos defendants and their insurers who predictably, are using every tactic available to them—including this writ—to keep the courtroom doors shut," he wrote.

On March 23, California Chief Justice Tani Cantil-Sakauye suspended civil jury trials for 60 days due to the COVID-19 pandemic.

Jury trials resumed June 8 in Alameda County Superior Court, with potential jurors receiving summonses to report June 29.

In this week's asbestos trial, Alameda County Superior Court Judge Brad Seligman, in a July 6 pretrial order, clarified that, under the Judicial Council of California's emergency rule, the court could hold judicial proceedings remotely. The order, noting that the plaintiff was 85 years old, also rejected a July 1 motion from another defendant to delay the trial. That defendant, Metalclad Insulation LLC, represented by Dentons, raised similar concerns about the planned jury selection process and trial.

The trial plan, Hugo said, is to have a sworn jury seated in one courtroom, wearing masks and six feet apart, with the lawyers and the judge in an adjoining courtroom, speaking to the jury remotely. All witnesses would appear by video.

Prospective jurors already showed up in the assembly room, going through a questionnaire and various hardship forms.

For voir dire Wednesday and Thursday, Hugo said, four of the prospective jurors plan to appear in person in one courtroom, wearing masks, while 65 will log in via teleconference. The lawyers, he said, will be in another courtroom, asking the questions remotely.

"So whether or not people show up by Zoom or are physically present, it's not going to be the way you used to be, which is you look at the person and see their facial expressions, see their body language," he said. "I have no idea what we're going to see in terms of the prospective juror—a part of their face, their entire face, what they're wearing, where they are. No clue."

Opening statements could begin next week, Hugo said.

Amell noted that California Gov. Gavin Newsom has mandated all residents in the state wear masks.

"Had the California Supreme Court granted defendant's writ petition and directed the trial court to vacate its order requiring the use of face coverings during voir dire, the result would not simply be an order telling prospective jurors that they cannot wear a facial covering during voir dire; the result would be that the case will not proceed to trial at all as long as Covid-19 precautions are necessary," he wrote in his email.

On Monday, Newsom issued a new order rolling back reopenings of certain businesses, such as in-room dining, and imposing new restrictions on about 30 counties, with Alameda County likely to join the governor's "watch list."

That could add another wrinkle to the upcoming trial, Hugo said.

"If it's unsafe to be in a restaurant six feet apart, how safe is it in the courthouse?" he said.