PERILS OF REOPENING THE COURTS. NACDL’s CHAMPION magazine has a splendid new issue devoted to virtual trials. The president of the organization, Nina J. Ginsberg, warns that future litigants may be forced to choose between a speedy adjudication with questionable constitutionality; or a full, fair trial endangering the health of all concerned.
Numerous authors contribute to the edition, asking such questions as:
- To what degree can a platform such as Zoom substitute for: face-to-face confrontation; the defendant’s ability to be present for trial; and an opportunity to observe the judge’s competency?
- Is Constitutional confrontation lost in video testimony?
- To what degree are telephonic hearings allowable?
- How can virtual criminal trials overcome key constitutional hurdles such as the right to physically face the accuser, the right to powerfully participate in one’s own defense, the right to be “present,” and an accused’s ability to probe for juror bias?
- Does virtual testimony fundamentally alters the psychology of jurors – the ability to assess credibility. What about decreased “virtual juror” attention spans?
- Will be pandemic make it difficult to obtain a representative cross selection; will certain demographics be excluded from the jury pool such as elderly persons, racial and ethnic minorities, and those unemployed or of low income?
- Will we pandemic harm the right to a speedy trial?
- Will the virus impair the effectiveness of counsel, in that it cuts down on client meetings and investigations?
- How are typical objections handled during to videoconference testimony?
- Is a “virtual witness” in fact unavailable to testify? Will remote testimony weaken further Fair Play?
- A live witness sworn and subject to cross-examination presents a demeanor which can be observed by the trier of fact. How does this play during a virtual trial?
- Will a defendant prior to trial be provided an opportunity to take a deposition?
- If there is more than one video-conference witness, is there a danger that the cumulative effect chills the defendant’s ability to confront witnesses and enjoy Due Process?
ETHICS CORNER: Randy, Tom, and Lance were impressive as the “three Galahads” –key to football success for the University of Mississippi in the 1990s. Each year, the three grads proudly fly the traditional Mississippi flag from their front porch at Homecoming.
Mississippi has now withdrawn the Confederate Stars and Bars from its official state flag. The three ex-players have no particular political leanings but nevertheless want to fly their old banners this year.
- Randy lives in a racially mixed area
- Tom is a Vicksburg policeman
- Lance is a Lieut. Col. stationed at Keesler AFB, MS.
What is your advice to each man?
RACE FOR REAL. George Pellecanos writes in his detective story RIGHT AS RAIN:
A lot of people on the street I lived on, they had bumper stickers on their cars – “Teach peace.” “Celebrate the diversity.” I’d see their little girls walking around with black baby dolls in their strollers. But come birthday time, you didn’t see any black children at those little white girls parties – none of those children from “down at the apartments” nearby. These people really believe you put a bumper sticker on your Volvo so the neighbors can see and that is all you have to do.”
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You saw a black man and you saw a criminal and you made up your mind. Yeah, there was noise and confusion and lights. I know about all that. But would you have pulled the trigger if Wilson had been white? I don’t think so… Cut through all the extra bullshit and you’re going to have to just go ahead and admit it, man: you killed a man because he was black.
FOR HISTORY BUFFS. Earlier, we asked whether it was permitted for any member of Parliament to drink alcohol while that chamber was in session.
The answer: the Chancellor of the Exchequer is so permitted– but only during his annual Budget speech! The last three Chancellors have all stuck to mineral water.
THANK YOU. Client TH kindly writes: “You are trying your best for me – I wish I had money supporters like you, asked for help in the military and got the cold shoulder.
REFLECTIONS ON AMERICAN INDEPENDENCE: “This country will not be a good place for any of us to live if it is not a reasonably good place for all of us to live in. Pres. Theodore Roosevelt
America was not built on fear. America was built on courage, on imagination, and an unbeatable determination to do the job at hand. Pres. Harry Truman
National Law Review
The Constitution Protects Faces in the Crowd (“Unlimited law enforcement application of facial recognition software to surveillance footage is an unreasonable search and a violation of Constitutional rights for people in a peaceful crowd.”)
‘Afraid of the President’: Ex-Mueller Prosecutor to Testify of Political Interference in Roger Stone Sentencing Memo (“A pair of DOJ attorneys are set to testify before Congress at a hearing titled ‘Oversight of the Department of Justice: Political Interference and Threats to Prosecutorial Independence.'”)
New York Times
Wrongfully Accused by an Algorithm (“In what may be the first known case of its kind, a faulty facial recognition match led to a Michigan man’s arrest for a crime he did not commit.”)
Can Judges Force People to Wear Face Masks in Court? This Texas County Wants to Know (“Harris County has requested an attorney general opinion about the county’s legal authority to require people to wear face masks in courthouses.”)
New York Daily News
Coronavirus outbreak at San Quentin prison hits almost 200 inmates (“The number of coronavirus-positive inmates at San Quentin State Prison in California has increased tenfold in barely two weeks, according to health officials.”)
National Law Journal/Law.com
Commentary: A Black Lawyer’s Letter to His Son: “My Mission Is to Keep You Safe” (“Greenberg Traurig litigation partner A. Michael Pratt pens a letter to his son upon his college graduation. Typically a time to celebrate, current events weigh heavy on their minds.”)
Pa. Supreme Court Strikes Down Probation Policy Barring Medical Marijuana Use (“Chief Justice Thomas Saylor, who wrote the court’s 16-page opinion, said the language of the law was clear, and any policy concerns expressed by a county court system would best be addressed by the General Assembly.”)
Muslim Woman Was Forced to Remove Hijab for Booking Photo After Arrest, Advocacy Group Says (“More than 100,000 people have signed a petition criticizing the treatment of Alaa Massri, 18, at a correctional center in Miami.”)