‘I need to see your faces.’ Judge tells lawyers to lower masks in his courtroom.
A Mecklenburg County judge last month asked two attorneys to lower their masks inside his courtroom, telling them: “I need to see your faces when you’re talking to me.”
District Court Judge Sean Smith made the statement to an assistant public defender and an assistant district attorney during a May 22 bond-modification hearing. The attorneys complied.
In an Tuesday interview with the Observer, Smith confirmed the details of the exchange. He said he learned later through a friend that his actions were considered controversial in parts of the Mecklenburg County Courthouse.
The judge said he did not consider his request an order and did not find it to be adversarial. Nor, he says, was he attempting to make a political statement about masks or the COVID-19 pandemic.
Instead, Smith says, he simply wanted to hear and fully understand what the lawyers had to say, which included noting the expressions on their faces. The masks impeded both.
“I’m trying to do my job, which is hard enough as it is,” Smith said. “Sometimes, it comes down to whom you believe more, who’s telling more of the truth. ... It seems to become more difficult to decide if you add an obstruction (such as a mask). You’re allowing people to hide. But we also have to do what we can to keep people safe. And we’re doing the best we can to balance that.”
Both District Attorney Spencer Merriweather of Kevin Tully, who heads the Public Defender’s Office, told the Observer this week that they do not think Smith’s request had been confrontational or threatening.
Yet the masks — already a political and cultural trigger — illustrate the complexities of reopening courthouses during a spreading pandemic. Inside a courtroom, what is said and heard can decide guilt or innocence, freedom or jail. And then there is this: While a face covering may keep people in the courtroom safer, does it also violate a defendant’s constitutional right to confront his or her accuser?
Across town, federal judges, clerks and other personnel planned for weeks before resuming jury trials Monday. The level of pandemic prevention detail extended to the Bible used to swear in witnesses, and whether there would be multiple to choose from or a single copy to clean after every use. U.S. District Judge Bob Conrad chose the latter.
Smith has put the Bible away in his own court, swearing in witnesses with an oath and a raised right hand. He says his own feelings about the masks have evolved, and that he now uses the start of the hearing to ask all parties to lower their masks when they talk to him so no one is caught by surprise. If witnesses wear masks, he said he requires them to lower their masks while testifying, and that the jury box sits at a safe distance from others in the courtroom.
As for himself, Smith says does not cover his face except for meetings at the bench or in his chambers with attorneys. He says he sits a safe distance away from other personnel while also being protected by a Plexiglas shield that has been installed at various spots in the courtroom.
“Assessing the credibility and sincerity of both ... witness and counsel is one of the critical tasks for a judge to perform in court,” he said in an email to the Family Court attorneys who practice in his courtroom. “Additionally, if a judge were to misunderstand or misinterpret or simply fail to hear a portion of what was actually said .. (it) could have material effects upon the ultimate decisions made.”
Yet, Smith’s practices appear to collide with the recommendations of a June 1 administrative order by the county’s presiding judges on how the courthouse should hold in-person proceedings.
In it, Chief District Judge Elizabeth Trosch and Senior Resident Superior Court Judge Bob Bell say all courtroom personnel, including judges, “should wear a face-covering while participating in a court hearing.” That guidance, they say, following recommendations by public health experts and courts around the country.
Those who cannot or refuse to do so “may be permitted to remain so long as he or she can remain six feet from any other person in the courtroom,” the judges wrote.
Trosch declined to comment when asked if Smith is violating the June 1 order. She said at least three District Court judges so far are not wearing masks in their courtrooms, saying that they impede courtroom conversations that all sides need to hear. The number of Superior Court judges going maskless is unknown; Bell did not respond to a phone call seeking comment for this story.
“A big part of a judge’s job is to gather information and assess credibility ... And a lot is lost when a face is covered during a conversation,” Trosch told the Observer on Tuesday. “But ... that is outweighed by the evidence that face coverings slow this disease.”
Such courthouse precautions have gained urgency now that five inmates in the Mecklenburg County Jail have tested positive for COVID-19, as has a member of the clerk’s office. A public defender and an assistant district attorney also contracted the coronavirus, though both cases occurred while their offices were closed and they were working at home, Trosch said.
“The spread of this disease has not slowed in Mecklenburg County since June 1,” Trosch said. “This is not the time to relax compliance with public health guidance.”
On Tuesday, Mecklenburg government leaders took steps toward a possible mandate requiring residents to wear masks in public spaces where social distancing is difficult. Gibbie Harris, the county’s public health director, has repeatedly urged anyone venturing out in public spaces to wear a mask.
Public Defender Kevin Tully said finding the balance between keeping the courtroom efficient and safe has proven difficult.
“The answer is not to remove your masks, it is not to hold court,” he said. “We have permission from the chief justice to hold court, but only it can be safely done. If it has to be held without masks, it’s not safe.”
‘I’m sorting this out’
On May 22 in Smith’s courtroom, the prosecutor and public defender had just begun presenting a joint motion to alter the bond for a criminal defendant when Smith broke in.
Neither the DA’s office nor the public defender’s office would identify for the Observer the two attorneys in the courtroom that day.
Smith said neither of the attorneys raised concerns. Still, he said he would handle the matter differently now and not leave his actions open for interpretation.
“I would explain to them some of the complications of this issue. ‘Hey, you can wear a mask. But to make sure I fully understand what you’re saying, make sure you speak up,’” Smith told the Observer this week.
“I’d make it more of a conversation: ‘I’m sorting this out, guys. Let’s make sure we’re all on the same page.’”
With witnesses, Smith said he draws a harder line. As both judge and jury in District Court trials, he said he needs to assess their statements and credibility, which becomes more difficult “when half to two-thirds of their faces are covered by a mask.”
If a witness eventually expresses discomfort in lowering the mask, Smith says he will try to find a nearby room where witness can testify remotely.
Jonathan Feit, a Charlotte attorney, said he was back in Family Court on Monday for the first time since March, appearing before District Judge Christy Mann. He wore a mask in the courtroom, he said. He also said he lowered it when talking to Mann or witnesses.
“I certainly understand and agree with Judge Smith’s view on the matter,” Feit said.
