Tipping the scales of justice?
Issues of fairness arise due to mask-wearing in court
SANTA FE — As the COVID-19 virus rages, the pandemic has the potential to erode not only public health, but also the constitutional rights of criminal defendants.
So say local defense attorneys who have concerns about holding hearings in virtual settings and mask-wearing protocols, as necessary as they may be to contain the spread of coronavirus.
Since March, when the pandemic hit the state, New Mexico’s courts have been holding virtual hearings online in lieu of in-person proceedings. While this increases safety, defense attorneys say it’s more dif
ficult for them to confront witnesses and communicate with clients.
Jury trials resumed in midJuly after the New Mexico Supreme Court told courts to create a safety plan. Part of the plan is requiring that masks be worn in the courtroom. But masks have the unintended effect of muffling visual information vital to attorneys and juries.
“We have issues of confrontation — that people are not able to assess the witness’s demeanor because a lot of those facial expressions are how we tell people are telling the truth,” said Jennifer Burrill, vice president of the Criminal Defense Lawyers Association. “The last trial that I did, we had jurors say that they couldn’t understand people speaking with a mask on, which raises serious concerns as to whether they actually heard all the testimony and evidence.”
The 6th Amendment of the U.S. Constitution says defendants have the right to confront witnesses, and masks limit the ability to discern expressions, which is part of evaluating witnesses’ truthfulness, Burrill said.
Multiple studies show many facial signals, such as a smile or pursed lips, come from the face’s bottom half. Masking these expressions can hinder nonverbal communication that attorneys and juries use to evaluate whether someone is telling the truth, Burrill said.
Confronting a problem
Defense attorney Dan Marlowe, who represents Estevan Montoya, accused of killing basketball star J.B. White, said there’s no way his client could get a fair trial in front of a virtual jury. The pandemic has also made it more difficult for attorneys to prepare a case.
“It does affect the rights of the defendant, for sure,” Marlowe said. “And pretrial interviews is one of the losses that you have to suffer as a result of that.”
Marlowe said last week that he had just received the Montoya case witness list, noting there’s going to be “a lot of confrontation here.” There are more than 100 witnesses, Marlowe said, and he’s going to try to conduct inperson witness interviews.
For Emilia Chavez, trying to navigate virtual hearings was challenging. She had two hearings in a case brought against her for receiving stolen property, and she said it was hard to understand what was going on. It wasn’t the same as being there in person. “Everybody was misunderstanding everything,” she said.
She said that the appearances, conducted by phone, took “forever” and that she was once almost accidentally marked as a “noshow” to her court appearance because there was no visual contact. She said she wasn’t sure people even knew who was on the call.
Chavez had her case dismissed earlier this month, and, despite the confusion, said she didn’t think her case resolution took longer than it would have normally. She was charged Aug. 3, and her case was dismissed a little more than two months later, Oct. 6.
Masking emotions
When the pandemic arrived, it created a unique and critical problem for all involved in dispensing justice, said Ben Baur, the state’s chief public defender.
Courtrooms were empty for a few months, but the wheels of justice couldn’t be halted. People were still being arrested, awaiting trials and sitting in jail, he said.
Baur said public defenders support going to trial if it’s safe, but there are also due process concerns.
He, too, says masks pose a problem. “Because a lot of judging credibility with witnesses is being able to see their face and the way they move — their body actions,” he said. “As human beings, that’s an important way we determine whether we think someone is telling the truth, and masks cut some of that off, literally, from the finder of fact.”
A lot of trials come down to the credibility of witnesses, he said. It’s not just if witnesses are being truthful, but also whether they saw or heard what they think they saw or heard.
When it comes to that, it’s a little more subtle, as when a witness’s perceived biases are exposed under cross examination, he said.
“Especially when somebody’s freedom is at stake, it has to be done in person,” Baur said. “Witnesses testifying by video is a huge concern for us. I think that has to be extremely limited — almost nonexistent — because you really need to have the person there to be asked questions.”
Another concern is jury selection under COVID-19 rules. Lawyers ask potential jurors questions to bring out any biases they may have with a case.
Usually, when attorneys do this, the jurors are sitting together as a group. Now, jurors are being divided into smaller groups for questioning, and that makes things a little harder, said Mary Carmack-Altwies, 1st Judicial District assistant district attorney.
“It is harder to get a view of someone, because they have their faces covered, but I have personally done a trial, and it works,” she said. “I think because everybody’s in the same boat, there’s a little leeway that the jurors are probably giving for witnesses wearing a mask and not judging them because they can’t see their faces.”
It hasn’t seemed to hurt the prosecution. She said the 1st Judicial District Attorney’s Office has won all seven trials held since courtrooms reopened in July.
Baur raised questions about the impact the pandemic has had on jury composition.
People afraid they may contract the virus might not feel comfortable sitting in a large group of people, so are they thinking, “I want to get the heck out of here as soon as I can?”
Defense attorney Tom Clark said that, similar to witnesses, it’s “hard to get a read on people” during jury selection when their facial expressions are covered. He also said jurors might be worried about catching COVID-19 and deliberate faster than they normally would.
“So there’s the worry that you’ll have these rushes to judgment so people can get done with their jury service, be done with the case, get to go home and not be exposed potentially to a very dangerous virus,” Clark said.
Defense attorney Mike Jones concurred with the others that it’s harder for attorneys to tell how a juror is reacting to a question when they’re wearing masks because they can’t read their facial expressions.
In addition, Jones said, jury selection is more time-consuming under current rules. With the jury pool being divided into smaller groups, attorneys have to go through their questions with each group instead of all at once, as they normally would.
Balancing the scales
While bench trials are still being held virtually, jury trials for civil cases are being conducted in person.
Judge Bryan Biedscheid, who presides over civil cases, said he’s held several virtual trials under the COVID-19 guidelines.
“The only real drawbacks that I’ve been able to discern is that it’s just awkward to have witnesses and lawyers in a litigious setting, none of whom can see each other’s body language, none of whom can really see what the other is doing,” he said.
It’s hard to tell if a person is finished speaking, he said, so there’s been issues of people talking over each other. But in terms of hearing testimony and getting the facts out, things have worked out well, he said.
Chief Judge Mary Marlowe Sommer said she thinks the coronavirus outbreak will have lasting effects, even after the pandemic is over. Some of the same procedures adopted during the pandemic may be kept in place to increase efficiency — and even safety. She mentioned one “beloved” attorney, John Greg Camp, who died in a headon collision as he was traveling between court hearings.
She said virtual hearings cut down on the stress of having to make appearances in different courtrooms, sometimes on the same day.
“It’s the silver lining I think that came out of this,” she said.