Video Tech Glitches, Masked Jurors Spark 'Inevitable' Appeals

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Technical hiccups in videoconferencing, masked jury selection and off-screen witness coaching are some of the pandemic-related issues cropping up in a growing number of appeals attorneys call inevitable.

Across the country, lawyers are increasingly pointing to glitches and delays with videoconferencing technology, distracted jurors caught exercising or napping, the wearing of masks in courtrooms and other procedural idiosyncrasies caused by COVID-19 as reasons why verdicts in both civil and criminal trials should be overturned.

The appeals may be novel, say attorneys, but they're not surprising.

"We all thought it was probably pretty inevitable that these issues would be sorted out in appeals if we were going to attempt to do any kind of litigation during all of this," Berks County, Pennsylvania, Assistant District Attorney Pamela VanFossen told Law360 Pulse.

VanFossen's office is battling several such appeals, including one in which a defendant is challenging the reliability of the courtroom identification a witness made of him while he was wearing a facemask.

Another defendant, Mark Delmonico, is appealing his drug conviction, claiming the fact that potential jurors were required to wear masks and socially distance during jury selection made it impossible to choose an impartial and competent panel.

Delmonico's and most of these appeals do challenge other issues as well as those involving COVID-19, according to attorneys. But they say it's not at all surprising that they also point to pandemic-related problems.

"I don't think anyone who's been involved in the criminal justice system for any length of time was surprised that there would be appellate issues related to the variations in the procedures and the issue of masking," VanFossen said.

These issues aren't just being raised by criminal defendants.

Defense attorneys filed several mistrial motions after a raft of technical issues arose in a California asbestos trial, according to one of those attorneys, Tina M. Glezakos of Hugo Parker LLP.

During a jury selection process held partially online, potential jurors lost their internet connections, defense attorneys were unable to voice objections because they had been muted by the clerk, and jurors were scattered across multiple screens filled with tiny boxes, Glezakos said.

"And as I'm scrolling through, I'm seeing people laying in bed, people taking care of their children, literally someone exercising on an elliptical machine," she added.

Another defendant in the case also asked for a mistrial after several jurors chatted with the plaintiff when they were left alone together in the virtual courtroom while the judge held a sidebar with attorneys in a breakout room, according to Glezakos.

The incident "could and would never happen if this case were tried to a jury in person," the defendant insisted.

An attorney for the plaintiff in that case did not respond to a request for comment.

Oil and gas company Kinder Morgan Inc., meanwhile, challenged its loss in a tax dispute with Scurry County, Texas, in May after health problems forced the company's lead counsel to navigate the trial remotely while the county's attorneys appeared in person. Technical problems subsequently kept Kinder Morgan's attorney from participating meaningfully in the case, according to the company's brief.

An attorney for the Scurry County Appraisal District insisted the trial was fair.

"Any technical difficulties did not impair the presentation of the case," Kirk Swinney told Law360 Pulse in a statement. "The case was decided on issues of law that precluded Kinder Morgan's experts from testifying to the jury. The fact that the court accommodated Kinder Morgan's counsel being present by Zoom was not related to the legal issues that decided the case."

Attorneys and representatives for Kinder Morgan declined to comment.

While these appeals may have been predictable, no one can predict how they'll turn out, said Andrew S. Pollis, director of the Appellate Litigation Clinic at Case Western Reserve University School of Law.

"Whether or not a particular malfunction on Zoom is reversible error depends on so many individual factors," Pollis said.

Those factors include whether the technical problem is reflected in the record, whether there's any indication of what the trial court did to mitigate the problem and how significant the issue was to the resolution of the case.

The nature of the record itself could also be a factor, Pollis said. Every court has its own rules about what constitutes the record, and while some jurisdictions rely only on court transcripts, it's unclear whether the recordings of virtual proceedings — and their technical glitches — could be used in others.

Whether a case is criminal or civil in nature is important as well. Courts are likely to be more concerned with issues that may have resulted in a criminal conviction than a civil judgment, so appeals in criminal cases will have "more teeth to them," Pollis said.

But so far, both trial and appellate courts have seemed skeptical of arguments that procedural irregularities caused by the pandemic interfered with litigants' rights to a fair trial, attorneys said.

A California trial court rejected the mistrial motions in the asbestos case, Glezakos said, and an appeals court knocked down objections as well.

And the Pennsylvania Superior Court refused to overturn Delmonico's conviction, ruling in May that masks and social distancing didn't interfere with jury selection.

VanFossen, who was not the trial attorney in the Delmonico case but has tried other cases during the pandemic, said the masked and socially distant voir dire "was not tremendously different" from a pre-pandemic jury selection process and the appeals court's decision "was legally sound."

"I think that we have toed that line and implemented procedures that kept everyone safe while giving the defendant a speedy trial and a fair trial," she said.

Delmonico has filed a petition for appeal with the Pennsylvania Supreme Court, according to VanFossen. His attorney did not respond to a request for comment.

High courts in New Jersey and Massachusetts have also rejected defendants' constitutional challenges to various pandemic-related procedures in recent months.

But not every decision made in virtual proceedings has stood.

The Appellate Division of New Jersey in May threw out a restraining order issued during a virtual bench trial due to "numerous trial irregularities stemming from the remote proceedings," according to the appellant's attorney, Barry J. Serebnick of Helmer Conley & Kasselman PA.

One of those irregularities was that two witnesses in the case, the plaintiff and his mother, sat side by side during testimony while the mother allegedly coached the son, the appeals court wrote.

"That's clearly a no-no," said Serebnick, who added that had the hearing been conducted live in court, the judge would never have allowed two witnesses to communicate with each other.

"The whole reason we have one witness in a courtroom at a time is so the subsequent witnesses don't tailor their testimony to be consistent with the witnesses who just testified," Serebnick said.

The appeals court also found that the trial judge engaged in inappropriate questioning of the witnesses that "at times approached advocacy."

The judge could have made that same mistake in a courtroom, Serebnick acknowledged. But as a former assistant prosecutor who spent much of his career in courtrooms, "I just kind of think in my experience that a judge would not have engaged in that questioning in a live proceeding," he said.

With many courts wrestling with whether to maintain some pandemic-spurred procedural changes, including virtual hearings, after the pandemic, appeals like these could become more common, Pollis said.

But they may have different outcomes after COVID-19.

There's a big difference between virtual trials held during the pandemic when those measures seemed reasonable and those held after, when they may seem less necessary, Pollis said.

"I don't see a Zoom trial being the basis for a reversal just because it's a Zoom trial when it was during the pandemic," he said, but appellate courts may take a closer look at that after the coronavirus has waned.

The lack of case law, though, means how courts will rule in those appeals is still anyone's guess.

"While I think we have struck that delicate balance of the safety of everyone involved versus the defendant's right to a fair trial," VanFossen said, "there's no perfect answer."

--Editing by Brian Baresch and Alyssa Miller.

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