CLEVELAND, Ohio — An Ohio judge who insisted on holding what legal experts believe was the nation’s first trial under coronavirus stay-at-home orders agreed on Wednesday to postpone the case, a day after the defendant was rushed from the courthouse to the hospital with COVID-19-like symptoms.
Ashland County Common Pleas Court Judge Ronald Forsthoefel pushed to start the trial on Tuesday and forced defense attorney Adam Stone to violate a doctor’s recommendation to self-quarantine after he came into contact with another client who tested positive for the virus. Forsthoefel wanted to continue the trial Wednesday morning, Stone said in an interview.
The defendant, Seth Whited, was released from the hospital Tuesday after a COVID-19 test came back negative. The doctor ordered him to self-quarantine and monitor his symptoms for six days in case the test was a false-negative, Stone said. Forsthoefel ordered both Stone and Whited to break the self-quarantine recommendations and come back into the courthouse Wednesday morning, Stone said.
“There was a lively discussion between myself and the judge,” Stone said. “Ultimately, with the prosecutor joining in, we agreed that it was appropriate to continue the case.”
Video of Wednesday’s proceedings posted on the court’s website showed Forsthoefel, wearing a black face mask to match his black robe, took the bench shortly after 9 a.m. Wednesday to tell the potential jurors that he would postpone the trial until May 12.
“Some people are more concerned about this and their exposure to the virus than others. And those viewpoints are all over the place,” Forsthoefel said from the bench. “I count myself as an old person these days. Some of us older folks are probably less concerned than some of the younger folks. But I don’t know, that’s not a real true, across-the-board statement either.”
Leaders of criminal defense groups on Wednesday denounced the judge’s multiple refusals to delay the trial, despite the Ashland County Prosecutor’s Office saying it had no objection to a delay. Stone presented the court on Tuesday with a doctor’s weekend recommendation for him to self-quarantine because he had contact with an inmate at Mansfield Correctional Institution who had later tested positive for COVID-19 as an asymptomatic carrier.
The Ohio Association of Criminal Defense Lawyers said in a statement that Forsthoefel “took an unnecessary risk by forcing a jury to assemble for a non-essential trial” and “endangered the health of everyone in the courtroom and threatened the defendant’s right to a fair trial.”
Nina Ginsberg, president of the National Association of Criminal Defense Lawyers, said her group believes Forsthoefel is the first judge around the country to try to hold a jury trial since states imposed stay-at-home orders.
“We’ve been expecting this to happen, but I didn’t expect it to happen so soon,” Ginsberg said. “I didn’t think we’d see judges trying to force jury trials while most of the country is still under stay-at-home orders.”
Forsthoefel, one of two elected judges in this largely rural county of about 50,000 people an hour southwest of Cleveland, declined through the court’s administrator Tina Carpenter to comment to cleveland.com on his decisions to move the trial forward and the court’s efforts to install safety measures.
Carpenter said she did not know that Forsthoefel was likely the first judge to try to hold a jury trial since shut-down orders swept the country in March. She said she thought it was unfair for groups to criticize the judge for attempting to push forward with the trial.
“We’re coming to work every day, business as usual,” Carpenter told cleveland.com. “Then all of a sudden, your court is being talked about.”
Judge’s refusals
Whited is charged with endangering children, a third-degree felony, and low-level felonies and misdemeanors that accuse him of hacking into the computer and email accounts of his ex-girlfriend, according to court records. He is free on bond and has waived his right to a speedy trial, and Forsthoefel granted three previous motions to postpone the trial, resulting in a Tuesday trial date.
Stone, on April 7, filed a motion to postpone the trial again, citing the spread of the coronavirus. Assistant prosecutor Victor Perez filed a motion the same day, saying his office did not object.
Forsthoefel denied the motion the following day, writing in his order that Whited should plead guilty, or prosecutors should dismiss the indictment if the sides did not want to go trial.
“If it’s not possible to find a resolution acceptable to the State, the Victim and the Defendant during the 11 months this case has been pending, then this case in (sic) should be tried before other conflicts for witnesses and parties arise during the summer months, or the indictment should be dismissed,” the judge wrote.
Stone filed an emergency motion asking the Ohio Supreme Court to step in and stop the trial. The court’s justices on Monday voted 6-1 to allow the trial to proceed. Chief Justice Maureen O’Connor wrote in the majority opinion that the trial could only proceed if the court refused entry to anyone who showed COVID-19 symptoms or had a temperature of 100 degrees or higher. The Supreme Court also ordered Forsthoefel to excuse any potential juror who expressed concern about participating in the trial. Justice Michael Donnelly, a former Cuyahoga County Common Pleas Court judge, cast the lone dissenting vote.
Hours after the denial, Stone filed a motion asking Forsthoefel to reconsider his decision to hold the trial. The motion said that Stone learned over the weekend that another client of his who is inside the Mansfield Correctional Facility tested positive for the virus, and Stone’s doctor recommended he self-quarantine at home for 14 days to monitor his symptoms and avoid potentially spreading it to others.
Stone said he provided the court on Tuesday morning with a copy of his doctor’s recommendation. Forsthoefel again refused to postpone the trial.
Trial derails
Jury selection began Tuesday morning with several measures in place.
Forsthoefel closed the courthouse to the public and live-streamed the trial to ensure public access. The judge also split the jury pool into two groups to conduct jury selection in two sessions of fewer than 15 jurors. The court made potential jurors sit in the back of the courtroom instead of the jury box so they could sit six feet apart, moving the witness stand to the center of the courtroom floor and ordering court staff to sanitize the courtroom multiple times a day.
Many jurors wore masks, but not all did, and the court did not have enough to provide one for each juror.
Stone said during the proceedings, he noticed Whited, who was wearing a surgical mask, started to cry. Whited’s face was red and he was sweating, Stone said. They stopped the proceedings, and Stone and his paralegal took Whited into the court’s law library, where medical staff took his temperature and found he had a low-grade fever, Stone said.
Paramedics then placed Whited on a stretcher and carried him out of the courthouse, in the presence of some of the potential jurors who gathered in the hallway, Stone said.
Whited was hospitalized for several hours and his COVID-19 test came back negative, Stone said. Still, doctors ordered him to self-quarantine for six days to monitor his symptoms, Stone said.
Stone said that when Forsthoefel ordered Whited to come back to the courthouse on Wednesday morning to resume jury selection, Stone told him to sit in his car in the parking lot. Stone objected to Whited coming into the building, but acquiesced when Forsthoefel ordered him to get his client, he said.
Stone enlisted the help of the Ohio Association of Criminal Defense Lawyers’ Strike Force, a group that sends lawyers to represent lawyers. Attorneys Ian Friedman, Mark DeVan and Daniel Sabol to the courthouse on Wednesday morning after Stone said he would refuse to proceed with the trial and prepared to be held in contempt of court if Forsthoefel ordered it to continue.
Forsthoefel backed down and called off the trial. He told the potential jurors on Wednesday that the court was in jeopardy of not having enough jurors to field a 12-member jury with two alternate jurors, and mentioned the previous day’s events “which were a little out of the ordinary.”
“It’s been an unusual experience for all of us,” Forsthoefel said. “We’re trying to figure out how to do this as things move forward."
Stone still stressed that Forsthoefel went to great lengths to implement as many precautions as possible in order to hold the trial.
“He took as strong of measures as you could ask a judge to take under these circumstances,” Stone said. “I just do not believe that under the current environment with the social distancing requirements, that we’re in a position as defense attorneys to go forward on these jury trials.”
Groups decry judge
The trial has drawn the attention of legal observers around the country as a potential bellwether to show how trials could, or could not, go forward in the COVID-19 age.
Friedman, also the president of the Cuyahoga Metropolitan Bar Association, said in an interview that his organization watched the live-stream of the trial and noted several troubling things that show it’s nearly impossible to hold a jury trial that both adheres to coronavirus-related public health measures and protects a defendant’s constitutional rights.
Defense attorneys and private investigators will have a hard time tracking down witnesses and interviewing them to get statements, he said.
Orders to remain six feet apart and wear masks make it nearly impossible for lawyers to communicate in confidence with their client while a witness is testifying, Friedman said. Jurors will have a harder time gauging witnesses’ and defendants’ facial expressions during testimony if they have to sit in the back of the courtroom, and will not be able to do so at all if witnesses and defendants wear masks over their face, Friedman said.
Even approaching witnesses with documents will be difficult, Friedman said.
Ginsberg said potential jurors might feel pressure during jury selection to say that they are not concerned, or give in to a judge’s assurances that the court was taking precautions to ensure the courtroom was safe, while secretly being afraid of contracting the virus. The result could be a desire to rush through deliberations to return home, Ginsberg said.
Friedman said he saw that play out on Wednesday. He said he overheard potential jurors who had said during Tuesday’s jury selection that they would have no problem serving on the jury during the coronavirus expressing concern in the hallway.
The courts’ remedies to allay the fears of potential jurors by excusing those in at-risk categories could also result in a jury that does not truly represent the defendant’s peers, Friedman said.
“People’s well being and right to a fair trial cannot be outweighed merely by a court’s concern for expediency,” Friedman said.
Ashland County Prosecutor Christopher Tunnell said he felt like the trial would have been able to go on successfully “with any other defendant.”
“Absent the defendant having whatever episode that was, we’d still be in trial,” Tunnell said.
Tunnell did say that measures to screen out those who show symptoms of the virus would not catch those who show no symptoms. Health studies and reports that have come out throughout April show that a significant portion of people who tested positive for the virus -- from 25 to 50 percent -- showed no symptoms.
“There’s no way to be 100-percent with this virus,” Tunnell said. “That’s the push and pull.”
The defense groups acknowledge that trials will have to resume at some point, and say that the issues that came up in Ashland County will have to be ironed out well before potential jurors, lawyers, court staff and attorneys are brought into the courthouse. Friedman cited Cuyahoga County’s COVID-19 Legal Task Force, a group of judges and lawyers from all levels of courts and legal practices that hold a weekly virtual meeting to discuss issues as they come up during the pandemic, as a guide for other counties to use to avoid what happened in Forsthoefel’s courtroom.
Friedman worries that judges forcing trials to go forward without addressing these issues will force many lawyers who fall into higher-risk categories, or have loved ones who do, to go back into a courtroom and risk exposing themselves or their loved ones who are vulnerable to the disease.
“When one of those lawyers gets sick and possibly dies, are the judges prepared to accept their responsibility for their role in that?” Friedman asked. “This is a life and death situation right now.”
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