“I don’t understand why I have to be put at risk"

January 26, 2021 8:45 PM

Oregon Assault Case Dismissed After Witness Refuses Court's Demand to Testify Without a Mask "Sanchez asserted his right to meet his accuser face-to-face and, with the support of the Judge, insisted that Fawcett testify without a mask—despite the trial occurring in the midst of the coronavirus pandemic."

"The presiding Judge Jennifer Chapman ordered that instead, witnesses in the case must wear a clear face shield and no mask while testifying. When Fawcett asked if she would be permitted to wear a mask with a clear window over the mouth as an alternative to the face shield, she was told they wouldn’t arrive in time for the trial."

The guy ends up going free, just because of this requirement.

Welp, I'm in a rage now, how about you?

posted by jenfullmoon (39 comments total)

That's... not what the Oregon Health Authority says you're supposed to do. Here's their reporting portal.
posted by aniola at 9:07 PM on January 26, 2021 [4 favorites]

A judge in the court where I frequently practice told a courtroom packed with lawyers that if they didn't like not being able to social distance they could leave.

A couple of weeks later the judge was dead from COVID.

"Cooperating with the judge" shouldn't involve putting your life, or anyone else's life, at risk. If there was no genuine dispute about the witness' identity then this was a bad call.
posted by 1adam12 at 9:08 PM on January 26, 2021 [124 favorites]

The witness did cooperate and was willing to wear a clear mask; she simply refused to risk her life. Face shields are poor protection on their own.
posted by tavella at 9:10 PM on January 26, 2021 [22 favorites]

The US Constitution has some leeway when it comes to the right to confront one's accusers. The US Supreme Court held in 1990 that "although face-to-face confrontation is not an absolute constitutional requirement, it may be abridged only where there is a 'case-specific finding of necessity.'" Maryland v. Craig, 497 US 836, 857-58 (1990). In that case a child witness was permitted to testify against their accused abuser via one-way closed circuit television; they weren't even physically in the room with the defendant. And that was, of course, long before HD.

The Oregon constitution does state that "In all criminal prosecutions, the accused shall have the right ... to meet the witnesses face to face". But it's pretty ridiculous that the Oregon courts (or at least this particular judge?) are construing that to mean it must be literally face to face, even if it would pose a serious risk of physical harm or death to the witness and their family.

The theoretical reason for the right of confrontation is to increase the likelihood that the case gets to the truth. If not allowing the sole witness in the case to wear a mask causes them to make the very reasonable decision not to testify, then that is patently counter to the supposed goal of the right.

(All that said, this does have to tempered against the fact that this is a re-trial of a previously non-unanimous jury verdict, which were recently held unconstitutional because the clear intent and effect of non-unanimous guilty verdicts in Oregon and Louisiana was to make it easier for almost-all-white juries to convict non-white defendants despite a token non-white juror. The defendant in this case, who has already served something like five years, was convicted only 10-2.)
posted by jedicus at 9:14 PM on January 26, 2021 [20 favorites]

Really not a good look for the judge.
posted by panhopticon at 9:17 PM on January 26, 2021 [7 favorites]

And if you, as the the only surviving witness, aren’t going to cooperate with the judge in charge of the trial seeking justice for a crime against you, well, it’s going to be a bad day.

No, this is a symbol of another aspect of the rot in the American legal system - the near-absolute power that judges hold in their courtrooms. It is absolutely ridiculous that the judge can countermand mask orders.
posted by NoxAeternum at 9:19 PM on January 26, 2021 [85 favorites]

Whoops, that reporting portal is not useful in this circumstance. Not sure where that gets reported.
posted by aniola at 9:25 PM on January 26, 2021

$20 pre-Trump bucks says the judge follows qanon. If the case was held outside Portland, I'll give 5:1 odds.
posted by They sucked his brains out! at 10:06 PM on January 26, 2021 [12 favorites]

So does this judge require all witnesses be clean shaven as well? A bushy beard is just as concealing.
posted by Mitheral at 10:24 PM on January 26, 2021 [14 favorites]

What would happen if an observant Muslim woman were to appear as a potential witness in this judge's courtroom?
posted by jamjam at 12:31 AM on January 27, 2021 [2 favorites]

Probably nothing special, since most observant Muslim women don't wear face coverings. But those that do are already often barred from courtrooms if they refuse to reveal their faces.

I don't know what precedents there are in Oregon law but I wouldn't expect her to be treated any better by this judge.
posted by Kutsuwamushi at 12:57 AM on January 27, 2021

This is the perfect chance to use one of those repurposed clear full face snorkel masks with a big exhalation vent over the head, aimed at the judge.
posted by benzenedream at 1:39 AM on January 27, 2021 [13 favorites]

Why does "face to face" even need be physically in the same room rather than through video-conferencing? I understand the need for accusations to not be secret, but there's no reason why someone needs to be particularly close, even in the best of times.

This is a ridiculous finding.
posted by explosion at 5:28 AM on January 27, 2021 [6 favorites]

these are ridiculous times
posted by philip-random at 5:51 AM on January 27, 2021 [6 favorites]

What an awful thing for that woman. What strikes me as just weird is that her ex boyfriend and his brother, the only other witnesses, have both died. How? I can't believe all the articles about this just leave you hanging with no explanation.
posted by james33 at 6:34 AM on January 27, 2021 [2 favorites]

I don't think it's ridiculous at all for a defendant to demand that a government's witness testify with their face visible, there's a reason it's part of the Sixth Amendment. Given the circumstances, I think allowing the witness to testify via video would have been reasonable, if a continuance was out of the question because the defendant was incarcerated. There's a lot more to a witness' face than just confirmation of identity, and I hate to see any precedent that makes pro forma adherence to a constitutional right the norm.
posted by skewed at 6:37 AM on January 27, 2021

Yeah, the basic reason this is nuts is simply that judges have incredibly broad discretion in running their courtroom and there's a hundred workarounds that could satisfy all parties unless you're lazy or pointlessly textualist about a constitutional clause with aims easily satisfied.
posted by fatbird at 7:00 AM on January 27, 2021 [13 favorites]

Welp, I'm in a rage now, how about you?

Most rideshare drivers wont pick up at the jail but I do because the patio of the adjacent bar will often be where the passenger actually is and they laugh and tip well when I explain why 5 drivers canceled on them. Sometimes I do get someone humble and honest about what they did but 2020-wow!

One woman told me the reason she was charged with 3 felonies was because she borrowed her mom's car. Weapons charge, fentanyl, something else.

Guy tells me assault on a female should just be assault so I agree cause he's behind me and smells like bourbon and then I figure out we are heading right back there and umm... Only his stench was in the car when I got there and told her he had been released.

They were just letting everybody out on personal recog for a while.
posted by Mr. Yuck at 7:26 AM on January 27, 2021 [3 favorites]

I don't think it's ridiculous at all for a defendant to demand that a government's witness testify with their face visible, there's a reason it's part of the Sixth Amendment.

All the Sixth Amendment has to say on the matter is the following:

to be confronted with the witnesses against him;

There is nothing in the Constitution saying that the witness' face must be visible, just that the accused must be "confronted" with the witness. Allowing the witness to wear a mask during a fucking pandemic is in no way violating the Sixth.
posted by NoxAeternum at 8:09 AM on January 27, 2021 [17 favorites]

Allowing the witness to wear a mask during a fucking pandemic is in no way violating the Sixth.

That's true as far as it goes, but this wasn't a Sixth Amendment case. The objection was made under the Oregon state constitution, which says "In all criminal prosecutions, the accused shall have the right ... to meet the witnesses face to face".

I don't know enough about Oregon law to say whether this has been super rigidly interpreted to mean bare face to bare face, while physically present in the same room, under all circumstances. I would hope not, but I haven't been able to find a copy of the actual order and thus the judge's specific legal reasoning.
posted by jedicus at 8:35 AM on January 27, 2021 [4 favorites]

Related and non-rage incuding: Costumes and the Confrontation Clause from the Law and the Multiverse blog by lawyers about comicbook legal issues.
posted by star gentle uterus at 8:50 AM on January 27, 2021 [1 favorite]

Certainly the spirit of both confrontation clauses could be abided without forcing a witness to literally risk infection during a pandemic. How long could it possibly take to procure a suitable mask or even a respirator if necessary? Probably less time than it took to brief and consider the motion to dismiss.

The judge actively chose to be an asshat. The Constitution is not a suicide pact, whether state or federal.
posted by wierdo at 8:57 AM on January 27, 2021 [7 favorites]

There is nothing in the Constitution saying that the witness' face must be visible, just that the accused must be "confronted" with the witness. Allowing the witness to wear a mask during a fucking pandemic is in no way violating the Sixth.

The definition of being "confronted with the witnesses against him" from the Sixth Amendment has two hundred years of judicial interpretation behind it, it's not just the text itself which rules. Face to face confrontation has long been recognized as the norm, and must generally be preserved unless there's some other right that needs to be balanced (See Maryland v. Craig). When there is a compelling reason, testimony via closed-circuit video has been in use for several decades now, so I'm not sure why they didn't try to do that. It's just my opinion here, but allowing a prosecutor's witness to testify with a mask on makes a mockery of the whole process, and should only be allowed in extraordinary circumstances, and when no other way to testify is available. If I were the defense attorney here, I'd raise hell, too.
posted by skewed at 9:50 AM on January 27, 2021 [1 favorite]

If right now doesn't count as extraordinary circumstances, what does?
posted by augustimagination at 10:02 AM on January 27, 2021 [14 favorites]

but allowing a prosecutor's witness to testify with a mask on makes a mockery of the whole process

Really, though? We're not talking about wearing a Captain Kirk mask or something, we're talking about wearing protective equipment to prevent the spread of a deadly disease. Would wearing glasses make a mockery of the process? I'd say that the judge throwing out this case is what's making a mockery of the process of justice here.
posted by dellsolace at 10:06 AM on January 27, 2021 [30 favorites]

Would wearing glasses make a mockery of the process?

Depends if your state constitution requires parties to see eye to eye.
posted by nickmark at 12:04 PM on January 27, 2021 [5 favorites]

Again, I think testimony via closed-circuit camera is completely reasonable under these circumstances, that would allow her to testify in an empty room without a mask, but still give the jury and defendant get a pretty good opportunity to see the person who is testifying. I have no idea why the judge would dismiss under these circumstances rather than do that, maybe there's a good reason, maybe not.

But yeah, I do think letting a government witness testify without showing their face is generally a really bad idea, even if it's just an N95-type mask. Letting the jury see the faces of the government's witnesses (who are mostly cops) is important. Their affect and expression is often as important as their actual testimony. I'm a criminal defense attorney, I'm sure that's my bias showing, but we shouldn't be making it any easier for the government to convict people.
posted by skewed at 12:22 PM on January 27, 2021 [3 favorites]

The earlier report explains the reason a bit more thoroughly:

Lamborn also said the ability of a juror to “weigh the demeanor of the witness” during testimony is important for a fair trial, and this may include looking at facial cues and expressions that may be covered up by a mask.

The defendant has rights too. We need to keep in mind that five years ago he was unjustly convicted, under provisions for majority verdicts that were found to be unconstitutional and (at least originally) racist. The original trial had three witnesses, two of whom are now deceased, and they still weren't able to reach a unanimous verdict. The new trial was going to depend solely on the testimony of the alleged victim, and, if her request had been granted, would very likely have been subject to appeal.

Given all that - and the fact that the learned judge's stipulation probably wasn't actually a surprise to the prosecution - I can see why she could have reached this decision. How many times do you want to prosecute a weak case against someone who very likely has already served a large part of his original sentence? Who might be (and in the eyes of the law is presumed to actually be) innocent?
posted by Joe in Australia at 12:54 PM on January 27, 2021 [2 favorites]

Literally, she could have testified from another room into an iPhone while a laptop showing facetime was displayed on a big screen. The earlier report is paywalled. Does it mention why any of a hundred reasonable video based solutions weren't considered?
posted by fatbird at 1:10 PM on January 27, 2021 [2 favorites]

But yeah, I do think letting a government witness testify without showing their face is generally a really bad idea, even if it's just an N95-type mask. Letting the jury see the faces of the government's witnesses (who are mostly cops) is important. Their affect and expression is often as important as their actual testimony. I'm a criminal defense attorney, I'm sure that's my bias showing, but we shouldn't be making it any easier for the government to convict people.

People are absolutely terrible at detecting lies from faces though. I'd go so far as to say that faces are really irrelevant distractions.
posted by srboisvert at 2:27 PM on January 27, 2021 [10 favorites]

A judge in the court where I frequently practice told a courtroom packed with lawyers that if they didn't like not being able to social distance they could leave.

A couple of weeks later the judge was dead from COVID.

When someone in my household was arrested at a protest a few years back after a cop hit him while he was wearing a mask and therefore "a threat", he was told by the judge that "only bad guys and cowboys wear masks and you don't look like a cowboy"

We think about that fucker a lot these days. I hope he's dead too.
posted by MCMikeNamara at 4:23 PM on January 27, 2021 [5 favorites]

The fetish for looking your accuser in the eye comes from the same American fantasy that privileges eyewitness testimony over forensic evidence out of masturbatory notions of Imma read them like at the poker table.

The state that was envisioned to be a White Supremacist utopia seems to have taken this cowboy bullshit to a ludicrous extreme in their justice system.
posted by Pirate-Bartender-Zombie-Monkey at 5:04 PM on January 27, 2021 [4 favorites]

On a related note, I also get in a rage any time I see someone insisting that everyone in a jury trial be all in the same room together. FOR THE LOVE OF GOD, USE A CAMERA, as others have pointed out. I keep waiting to hear some horrible story where an entire jury comes down with the virus and the trial....well, whatever happens when you can't conduct a trial because everyone is quarantined/in the hospital/dead, down to the alternates.

But seriously: there were ways around. Judge is a horrible asshat that I hate sharing a name with.
posted by jenfullmoon at 5:35 PM on January 27, 2021

The fetish for looking your accuser in the eye comes from the same American fantasy that privileges eyewitness testimony over forensic evidence out of masturbatory notions of Imma read them like at the poker table.

It's rooted more in the fear of trial by affidavit, and the potential power of the government to imprison someone merely by producing putatively sworn statements that nobody actually has to make in public. But whatever, the vast majority of defendants are guilty so I don't even know why we bother with trials anymore.
posted by skewed at 6:05 PM on January 27, 2021 [1 favorite]

This is one of my sort-of inchoate legal/philosophical/theological interests, wherein I do not have a researched opinion or particularly deep knowledge, but I'm always particularly fascinated when it comes up because it hits at such an interesting intersection of issues, and reveals a lot about Anglo-American (/Western generally) ideas about truth and finding the truth.

Anglo-American legal history -- and Western legal history more generally -- is FASCINATED with the idea that you must see someone's face to judge their honesty. It's an incredibly deep-seated idea, that's reflected in a thousand idioms and metaphors. Dishonest people are "two-faced." The worst kind of liars are "bare-faced liars." When you're ashamed of yourself, you shouldn't "show your face." The truth is "written all over your face." You have to "face the facts." People who wear masks are mysterious, have secrets, are in disguise, hiding their identities -- for good or bad reasons.

Every time someone wants to wear masks or conceal their faces in court or in government proceedings in the West, it's basically guaranteed to cause an outcry, whether it's Amish refusing government ID pictures, France banning face-coverings for Muslims, or people wearing masks during a pandemic in court. (The "law and the multiverse" link is actually really good, read it.)

But it's definitely not just a strong right of the defendant under the Sixth Amendment that's really tough to overcome, it's such a deep-seated belief in Western culture that any time you see someone wanting to wear a mask, cover their face, or not show their face when interacting with the government in any official kind of way, especially that involves oaths or personal identification, you should expect the legal establishment to collectively gasp with horror and be like "BUT WE HAVE TO SEE FACES!" Westerners have such a strong association with the idea seeing someone's face enables us to judge their character that it's very hard to overcome, and there's a strong automatic reaction.

(And there's actually a lot to say about women and veiling in Europe, and how ideas of virtue, virginity, adultery, truth, honesty, etc., all get balled up into this patriarchy thing and women's faces themselves are suspect and women are definitionally untrustworthy and not legally independent persons. Men to bareheaded in Christian churches, to show their respect to God, but women have to cover their heads in church because they are too lowly to face God straight-on. It's also why there's this deep vein of suspicion from Western men about makeup, that pops up everywhere (including today among incels), where there's an uneasiness that they can't see women's "real faces." And at traditional Christian weddings with a veil, the veil is lifted some time before the legal part of the ceremony begins (the vows) because how can she take an oath -- possibly the only oath she's allowed to take in her entire life! -- if her face is obscured? ANYWAY THE HISTORY OF GENDER FACES AND IDEAS ABOUT TRUTH: A TED TALK IN WAITING.)
posted by Eyebrows McGee at 6:27 PM on January 27, 2021 [21 favorites]

But whatever, the vast majority of defendants are guilty so I don't even know why we bother with trials anymore.

I hope this is a joke?
posted by tiny frying pan at 6:34 PM on January 27, 2021 [4 favorites]

Am I missing something here, or wouldn't a simple plexiglass box around the witness stand meet everyone's needs? Use a drummer cage, and you don't even need to permanently mount it.
posted by mikelieman at 3:20 AM on January 28, 2021 [1 favorite]

Air is the problem.Plexiglass doesn't shield her from still breathing his potential virus.
posted by jenfullmoon at 7:36 AM on January 28, 2021 [2 favorites]

There are ways to make even a plexi box much better than bare faced in enclosed space with a bunch of other bare faced people. EG: a simple hack would be to just duct tape the output hose of a PAPR to loosely sealed plexi box. It would create a positive pressure bubble of safe air. This does nothing for the other occupants of the room; but hey, they have the opportunity to mask up.
posted by Mitheral at 9:26 AM on January 28, 2021 [1 favorite]