If they were litigants, a judge might very well have declared them in contempt — of COVID-19.
But they were judges, and in the words of a longtime court official, no one tells a judge what to do.
So it has gone at the Douglas County Courthouse in recent weeks as one judge didn’t require trial spectators to wear masks in his courtroom and reassured attorneys that they didn’t have to, either.
Douglas County District Judge Peter Bataillon also routinely asks inmates appearing remotely from the Douglas County Jail to remove their masks, frustrating corrections officials.
The judge said he does so because the mask and the computer software make it nearly impossible for his court reporter to hear and take an accurate account of an inmate’s pleadings.
Another district judge, Greg Schatz, felt ill the last week of October and began exhibiting COVID-19 symptoms. A first test was negative; the second was positive.
Within a day or two, he showed up at the courthouse and was told to go home.
He did for the weekend, then returned Nov. 2 — despite two judges telling him to stay away and despite guidelines from the federal Centers for Disease Control and Prevention that recommend a 10-day quarantine. Schatz has told others that he had a third test that was negative.
And, of course, the pandemic hasn’t stopped at the courthouse doors. Two Juvenile Court judges and their staffs are in quarantine after positive tests among their staffs or family members. A County Court judge tested positive and another is in quarantine.
One court official estimated that seven to 10 staff members of the County Court have tested positive. In addition, a handful of employees of the Douglas County Attorney’s Office have tested positive. That has prompted those who have it, and others around them, to quarantine.
Those developments are the latest canaries in the courthouse coal mine as the coronavirus pandemic spares no part of society.
The increasing COVID-19 cases in the community and the courthouse led Presiding District Judge Horacio Wheelock and others, including Chief Deputy Douglas County Attorney Brenda Beadle, Public Defender Tom Riley and City Prosecutor Matt Kuhse, to request that the Nebraska Supreme Court allow the state’s largest courthouse to scale back to partial shutdown mode, as it did in May. In his letter requesting the partial shutdown, Wheelock pointed out that the county is currently at “severe risk of Covid-19 spread.”
The courthouse is open, but the public is asked to come only if they are in need of services. Jury trials are postponed until Jan. 1.
Likewise, federal courts in Nebraska have stopped jury trials through Dec. 1 and are urging judges and litigants to seek alternative ways to conduct hearings.
“It is the Court’s responsibility, as a careful steward of public safety, not to unnecessarily or unduly endanger its own personnel ... or members of the community,” U.S. District Judge John Gerrard wrote. “The Court must do its part to mitigate the effects of this public health emergency, rather than contribute to the problem.”
Since the pandemic began in March, Douglas County district judges have been able to pull off just two jury trials — and each of those lasted only a few days. Other trials have started only to end abruptly. One double homicide trial had just started when the defendant’s sister, who was in the gallery, contracted the coronavirus. Another murder trial had to be delayed after a law clerk in the County Attorney’s Office came down with COVID-19 and the prosecutor working with him had to quarantine.
The trial of gang member and once-accused (and acquitted) kidnapper Fabian Inda — charged with weapon possession — ended during jury selection. The reason: A police officer was in quarantine and wouldn’t be able to testify.
Riley said he worries that the delays will cause trials to stack up. He said the courts have been able to take care of low-grade felonies through plea bargains. So the jail roster has about the same number of people awaiting trial as it always has, Riley said.
More serious felony cases are a tougher challenge. Riley said he and his clients want their day in court. But they also don’t want a jury that is so distracted and paranoid by a pandemic that they rush.
“Deliberation means taking your time and talking things out before coming to a conclusion,” Riley said. “As the numbers in COVID spike, you worry to yourself, ‘Are the jurors going to be so anxious that they’re going to want to get to a resolution quickly?’ Which could be detrimental to our clients.”
Others worried about decisions that could be detrimental to their health. A few attorneys grumbled about Schatz’s apparently quick quarantine after his positive test. He didn’t return a reporter’s message Thursday.
Bataillon, meanwhile, disputed complaints that he isn’t enforcing Omaha’s mask mandate. Technically, the mandate doesn’t apply to “those seeking federal, state, county or city governmental services.” It would be difficult to argue that those watching from the gallery — such as during Bataillon’s bench trial in a sexual assault case two weeks ago — are seeking government services. But the mask mandate also includes a broader exclusion, saying it doesn’t apply to “courts of law.”
There’s another exception Bataillon points to: The judge said people who were watching the trial from the gallery were more than 6 feet apart and, therefore, didn’t need to wear a mask. That issue also came up Thursday when Douglas County Judge Stephanie Shearer told a correctional officer that he wasn’t wearing his mask correctly during jail court. The officer told the judge that he didn’t have to; he was more than 6 feet from those gathered.
Indeed, the mandate has a catchall that critics say weakens it. It allows people to take off their mask if they maintain “six feet of separation or social distance.”
“If they’re 6 feet apart,” Bataillon said, “it’s really up to them.”
Bataillon said most people wear masks in his courtroom. But one court official said that of more than a dozen people attending a trial in Bataillon’s courtroom, virtually no one but the prosecutor was wearing a mask. Not the defendant. Not his attorney. Not a defense witness.
To be sure, other judges are more strict and have posted signs requiring masks. In previous cases, high courts have found that judges have the power to impose stricter restrictions on their own courtrooms, and to hold in contempt anyone who doesn’t follow them.
As for Bataillon, the judge himself doesn’t wear a mask while he’s on the bench, unless someone comes within 6 feet of him.
Asked if he believes in the efficacy of masks, Bataillon said: “Whether I have a doubt or not is irrelevant. It’s the city’s mandate. It doesn’t make any difference what I think.”