COVID-19 courts task force discusses unmasking witnesses, in-person precautions at final meeting

Listen to this article

The Wisconsin Courts COVID-19 Task Force has put the final touches on its recommendations for safely continuing jury trials and other in-person court proceedings as Wisconsin starts to reopen.

The task force on Thursday held its final meeting on its 19-page recommendation detailing criteria to promote safety in courthouses during proceedings. Task force members took up a series of final language changes to the document and last-minute questions about some of the requirements.

Much of the discussion concerned face masks. Members had questions about who would receive a surgical-grade face mask and if there would be enough masks for staff employees and everyone at the courthouse for court proceedings. Chief Justice Patience Roggensack assured members there wouldn’t be a shortage.

“We aren’t going to lose the supply chain,” Roggensack said. “If the hospital can maintain it for every floor in the hospital, come on. I have the money to buy the masks, so I just need to know where to get them to make sure to get the right thing, but we will work it out, and for each county there will be an opportunity to have what we need.”

St. Croix County Judge Scott Needham asked if the recommendation could make an exception for unmasking witnesses during testimony. Milwaukee County Chief Judge Mary Triggiano said that was a big question in her county as well.

Dr. Dennis Maki, professor emeritus at UW Madison, said unmasking witnesses was a risk the courts may have to take in the interest of protecting a person’s right to a fair trial.

“If you don’t think it’s absolutely necessary, then I think everybody should be masked,” Maki said. “If you think it’s essential to having fair judicial proceedings, then I think you have to live with a little bit of risk, assuming that masking everybody else will provide a great element of protection.”

He recommended mitigating some of the risk by using plexiglass barriers and air purifiers placed near witnesses on the stand.

Members also voiced concerns on behalf of court reporters and bailiffs who have said masks might impair communication. Maki and UW Medical School Dean Robert Golden pointed out that doctors working in emergency settings are able to effectively communicate while wearing surgical masks.

Roggensack requested language changes several times during the meeting to ensure the task force’s recommendations were accurately represented and conveyed to the other state Supreme Court justices.

During the discussion about masks and other personal protective equipment for staff, she said she had a “huge problem” with saying the items are preferred, rather than required. She said she knew the task force couldn’t legally require such a change, but she said it would make a difference when she hands off the recommendations to the other justices.

“If we don’t have a foundation like masks and hand sanitation and hopefully testing of temperature as people come in, we’re going to have a problem,” Roggensack said. “What I surely don’t want to do is give people more problems than they already have by coming to court.”

Golden agreed with the change.

“There’s a difference between having a speed limit and saying we prefer you don’t drive above 65 miles per hour,” Golden said. “We’re fortunate in that we’re a task force making recommendations. It’s up to the supreme court to make the decision. If we water down our recommendations, that is easily interpreted.”

The task force went through the recommendation’s executive summary, 19 pages, conclusion and appendices during the roughly one-hour meeting. Diane Fremgen, deputy director for court operations and chair of the task force, said her team would make the changes agreed on at the meeting and then send its recommendation to Roggensack.

Roggensack will then share it with the other state Supreme Court justices for approval.

“I will do my very best with my colleagues to get everything we recommended,” Roggensack said at the end of the meeting. “You all have done a phenomenal job. I could not be more pleased.” Follow @WLJReporter