Most Mondays FIJA hosts a brief Zoom session covering highlights of recent jury-related news and how it intersects with jury nullification as well as FIJA resources, events, etc. and other related items of interest we come across. This is an abbreviated summary of the presentation on 7 November 2022.
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Litigation Regarding Masking in Jury Trials During the Pandemic
Litigation regarding courtroom practices that arguably lowered standards for justice during the pandemic continues, most recently in the case of State of Washington v. Justin Dominic Bell. Bell is appealing his criminal conviction after jurors for his trial were permitted to wear cloth facemasks throughout the trial, thereby obscuring large portions of their faces and the expressions that would normally be seen by attorneys assessing their demeanor. In the same trial, however, witnesses wore clear face shields, a tacit acknowledgement that this information can be critical to the outcome of a trial.
According to the appellant, the judge had the power to have prospective jurors wear the clear face shields and they were available, yet the judge did not require them. “I can only defend my client to the full extent of my ability if I can see the jurors’ entire faces; including whether they’re smirking, opening their mouth in surprise,” argued Washington Appellate Project attorney Oliver Davis.
I have no estimate of when the court will rule in this case, but looking to other similar cases, I’m not optimistic for an outcome that raises the bar for justice in this way back to its original level.
Consider another recent ruling from the Maryland Court of Special Appeals just a couple of weeks ago. In the criminal trial of Radee Prince, the defense requested that prospective jurors wear clear face shields or be unmasked during jury selection—a request that was denied by the trial judge.
Despite citing a case that asserted “the substantial right of the prisoner to be brought face to face with the jurors at the time when the challenges are made” and claiming that “we acknowledge that an individual’s facial expressions play a role in nonverbal communication,” the panel of judges in this appeal nonetheless gave the government a pass on the masks. The 3-judge panel all agreed that “the marginal diminution of everyone’s ability to see the lower halves of the potential jurors’ faces didn’t affect the answers they gave or the court’s ability to evaluate and rule on motions to exclude them.”
And earlier this year, the Superior Court of Pennsylvania gave the government a pass even on masking of witnesses in the case of Commonwealth of Pennsylvania v. Theodore B. Dixon. The appellant argued that “the jury could not assess the witnesses[’] credibility by observing their behavior because the witnesses were prohibited from temporarily lowering their masks while giving testimony[,] even though the witnesses were more than six feet away from others and guarded by plexiglass.”
But the government gave itself a pass in this case, ruling that the accused’s Sixth Amendment right to confront accusers was not violated because “The jury was able to assess the witnesses’ credibility and demeanor by (1) observing their movements, body language, appearance, eyes, and posture; and (2) listening to the tone of their voices.”
My strong suspicion from what I’ve seen so far is that the bar has likely been permanently lowered regarding what body language the defense can be denied access to when selecting jurors and assessing their demeanor throughout a trial, as well as what information both the defense and the jury can be denied access to when assessing the credibility and demeanor of witnesses testifying.
It is my sincere hope that enough of these sorts of appeals pile up, and with more dissent than so far seems to have surfaced, that the issue may eventually be taken up by the United States Supreme Court and corrected. That, however, is incredibly unlikely I am afraid.
Did Jury Masks get in the way of a Fair Trial?, Northwest Newsradio, 3 November 2022
Oral arguments in the case of State of Washington v. Justin Dominic Bell, Division 1 Court of Appeals, 3 November 2022
Radee Labeeb Prince v. State of Maryland (.pdf), Maryland Court of Special Appeals, 26 October 2022
In Novel Ruling, Superior Court Finds Mask Mandates Didn't Violate Defendant's Right to Face-to-Face Confrontation, Law.com, 27 May 2022
Commonwealth of Pennsylvania v. Theodore B. Dixon (.pdf), Superior Court of Pennsylvania, 26 May 2022
Maryland Court of Special Appeals Rules on Speedy Trial Violations
Bad news from the Maryland Special Court of Appeals for two defendants and, presumably, a sigh of relief for one other in the appeals of Garrick Powell, Niran Henry, and Lateekqua Jackson.
The three agreed to have their related criminal charges tried in a single, consolidated trial. A trial date was set at a status conference at which two of the defendants and their attorneys were present. At that conference, a trial date of October 26, 2021 was proposed. One of the defense attorneys expressly agreed to the date while the other attorney remained silent. Later that day, the attorney for the third defendant may or may not also agreed to that trial date, which we’ll discuss a little bit later. Now let’s put a pin in that while I explain speedy trial rules in Maryland.
In Maryland, the rule is generally that the state has 180 days from either the appearance of counsel or the first appearance of the defendant before the circuit court to bring the accused to trial. This date is known as the Hicks deadline after the 1979 case of State of Maryland v. Hicks, which held that dismissal of criminal charges is generally the appropriate sanction for the state’s failure to meet the statutory speedy trial deadline. The ruling, however, carved out an exception saying that the sanction is not proper “where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date” past the deadline.
Now let’s jump back to the three cases in question. It was not until the scheduled trial date, when the prosecution requested a postponement due to the illness of a witness, that the court brought up the issue of the Hicks deadline. Upon doing the math, which was made all the more confusing than usual due to periods of time not being counted against the 180-day clock due to COVID-19 pandemic-related changes, it only then became clear to everyone that the Hicks deadline had passed. Nobody disputed that fact.
However, the prosecution argued that “the trial date, in this case, was agreed upon by all the parties” and that the “defense cannot then go ask for a dismissal based off a trial date they agreed to.” In later arguments, the prosecution also cited the 1981 case of State of Maryland v. Lattisaw, which held that if the defense agrees to a trial date past the Hicks deadline, they have expressly consented to it even if they had no idea it was in violation of the Hicks deadline.
Given this, the Maryland Special Court of Appeals ruled that Henry’s attorney gave up his speedy trial rights by expressly consenting to the trial date with the statement that “[s]tarting on the 26th; that’s fine, Judge.”
Jackson’s attorney denies agreeing to the October 26 trial date, but that didn’t matter, says the Court. The Court ruled that the defendant can, without the participation of the attorney, expressly consent to a trial date that unwittingly forfeits their speedy trial right. It further ruled that Jackson did so in answering questions from the judge, after she had missed a scheduled hearing, about whether she knew what future dates she was to appear:
THE COURT: What’s your August date? * * *
MS. JACKSON: August the 10th, and—
THE COURT: Okay.
MS. JACKSON:—the other one was October the 20 something—I looked on Case Search.
COURT CLERK: Twenty sixth.
THE COURT: Twenty sixth.
MS. JACKSON: Twenty sixth, okay.
Only Powell received the appropriate remedy of dismissal of his charges in this case because his attorney happened to be the one who did not say anything at all. All three were in the same position, but only one, but sheer luck, had his supposedly Constitutionally- and statutorily-guaranteed speedy trial right upheld.
What’s going on here? Two things stand out for me.
First, in my reading of this, Jackson wasn’t agreeing to the trial date so much as just acknowledging it at the judge’s prodding, probably to assure the judge that she was going to be appearing at the times demanded by the government after having missed a court date that morning. But the court bent over backward to interpret this in the way most favorable to the government and against upholding Jackson’s rights.
Second, once again, here we have the government saying basically that we have designed a legal system so complex that you would more or less be a fool to represent yourself without professional legal help. Yet at the same time, the government suggests, it does not matter that it is so complex the average person can’t navigate it effectively by themselves. The government claims it is your responsibility, as the accused, if your professional attorney screws up and agrees to something past the deadline, or if you yourself are misled into agreeing to it. That’s all on you. That’s not the government’s fault.
As I have said repeatedly over the last few years, without trial by jury, there is no jury nullification. One of the ways that government has chipped away and continues to chip away at the benefit of trial by jury that is the potential for jury nullification or other lenity extended to the accused by the jury is to keep people out of trials by jury as long as possible.
The longer people are left in limbo with unresolved criminal charges hanging over their heads, the more likely they are to forfeit their right to trial by jury and take a plea just to be able to move on with their lives. Each time the government gives itself yet another pass on these types of speedy trial violations, it is adding to plea bargain culture and detracting from the culture of Constitutional trial by jury.
Waiver of 180-day trial deadline requires clear statement, Md. appeals court says, The Daily Record, 28 October 2022
State of Maryland v. Niran Marquise Henry, et al., Maryland Special Court of Appeals, 25 October 2022
FIJA Features
Illegality of the Trial of John W. Webster by Lysander Spooner, 1850
Vices Are Not Crimes: A Vindication of Moral Liberty by Lysander Spooner, 1850
Thank you for joining us for 15 Minutes with FIJA. For more information on any of the items covered this week, you can find detailed show notes, complete with links to source material, at FIJA.substack.com. You can help ensure educational information like this continues to be provided to the public at no charge by making your donation at FIJA.org/give. We look forward to you joining us again next week.
15 Minutes with FIJA - 7 November 2022