Should a criminal defendant be required to wear a mask at trial?

by philg

Coronavirus is here to stay, just as the Swedish MD/PhDs said back in February 2020 (“don’t lock down unless you’re willing to keep everyone at home for the next 20 years”). Criminal defendants are also likely to remain plentiful here in the U.S. Where do these phenomena intersect? San Jose!

“At Issue in Theranos Trial: Whether Elizabeth Holmes, Witnesses Will Wear Face Masks” (WSJ, August 16, 2021):

Attorneys for Theranos Inc. founder Elizabeth Holmes told a federal judge on Monday that she plans to attend her criminal fraud trial with three family members or friends by her side and strongly prefers not to wear a face mask.

Should this be at the discretion of judges? Suppose that Dr. Fauci says that the best way to #StopTheSpread is to cover people in hoods, like Al-Qaeda warriors getting into a CIA-chartered Gulfstream for the trip to Guantanamo. Would it be okay for a jury to convict a defendant whose head they’ve never seen? If not, why is it okay for a jury to convict a defendant whose full face they’ve never seen?

Separately, the Theranos fraud (largely perpetrated, according to Bad Blood, by David Boies (on the Theranos Board) and the law firm of Boies, Schiller & Flexner (now representing Palm Beach County in its fight to keep schoolchildren masked against the Florida governor’s order to allow parental choice)), was vaguely predicted here in 2014:

New Yorker magazine carries an article about a young self-made billionaire whose success was partly due to having put in the effort to learn Mandarin while in high school.

Separately, the article covers the question of whether people will benefit from being able to get blood tests more easily and cheaply, e.g., without having to first visit a physician and without having a vein opened up. A doctor friend says “Never order a test unless you know what you’re going to do with the answer.” If he is correct then generally we will not be healthier if we get more numbers more frequently. The article also covers the question of the extent to which the FDA will regulate vertically integrated blood testing labs differently than labs who buy their machines from third-party vendors.

Regarding the second question, I queried a friend in the pharma industry. Here’s what she had to say…

A couple of things struck me, the first being the powerful friends/supporters that she has on her Board. I really do believe that this has insulated her from some rather obvious scrutiny. The second was the FDA representatives who appear to not have a clue regarding their own regulations.

Who was the first to expose what Elizabeth Holmes and David Boies were up to at Theranos? According to Wikipedia, it was coronaheretic John Ioannidis (excommunicated Stanford professor, author of “Why Most Published Research Findings Are False”, and colleague of Dr. Jill Biden, M.D., Ph.D.). Dr. Ionnidis, M.D., Ph.D. pointed out the red flags in February 2015 (a little later than this blog!), which was well before the October 2015 Wall Street Journal article that destroyed the company.

Circling back to the main topic… is it acceptable to run criminal trials in which defendants can be forced by judges to wear masks?

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Posted in Law

6 thoughts on “Should a criminal defendant be required to wear a mask at trial?”

  1. They can force them to wear prison garb in shackles and sit inside plexiglass booths, I believe, so masks shouldn’t be very much of a problem. Someone correct me if I’m wrong. I thought Holmes’ big problem was needles, not fashion masks. She could get a zexy leopard print number or a wide assortment of Crayola children’s masks from Amazon and that would probably suffice. Since the latter come in a pack of 7, washable and reusable, and are the #1 Tools and Home Improvement product on Amazon, the Court could probably pay for them and if she loses, ask David Boies to reimburse the Court.

    I think the real reason she’s objecting to them is because it will muffle her fake voice a little and detract from her “I am channeling Steve Jobs” impression. He was never photographed wearing a mask as far as I know, so it’s difficult to project his reality distortion field while wearing one.

  2. Seems that a judge would be reluctant to force a defendant to wear a mask since there is likely little precedent on the subject and might it might turn out to be reversible error — that masking a defendant suggests guilt since hiding the face is a suggestion of guilt, in western societies anyway. I seem to recall that the French don’t permit burqas in public since the hiding of the face is antithetical to western values or something like that. Also, not clear why the judge would care and unlikely that the prosecutors would bring the issue up since first why would they care and second forced masking might jeopardize a conviction. The typical criminal prosecution is expensive and time consuming and only the defendant typically has the objective of a reversal. On the other hand take the criminal prosecution of Derek Chauvin where the prosecution and court were hell bent on conviction regardless of risking reversible error. We will hear more about that later.

  3. The whole thing is a moot point at the moment. A member of the jury might have been exposed to covid so now the trial will be shut down. Maybe in 10 days after the trial re starts there might be another potential exposure. I don’t see how this trial gets done.

    • TS: So little faith in #Science! Why can’t the judge order everyone, including jury members, to get booster shots? Surely then there won’t be any breakthrough infections. If Dr. Joe Biden, M.D., can order vaccines for nearly every American with a job, why can’t a judge order double vaccines and double boosters for everyone who comes to his/her/zit/their courtroom?

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