President’s Message: A Slippery Slope Usually Begins with a Delicate First Step

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On August 6, 2020, a Travis County Justice of the Peace named Nicholas Chu took a perilous stride down an icy constitutional declivity when he announced — in a press release! — his plan to preside over the nation’s first “binding” criminal jury trial via videoconference. (Or, at least as binding as any other Class “C” misdemeanor in a court with no reporter and in which the defendant has the right of appeal de novo.)

But still.

The accused would be tried for the offense of Speeding in a Construction Zone. Importantly, for reasons only the defense attorney can explain (which he did, of course, to the press), the defendant consented to this ill-advised experiment. So did the prosecutor. Most notably so did the Office of Court Administration — the government agency charged with approving all Texas trials during the pandemic until October 1, 2020.

The “Zoom trial” took place on August 11, 2020. It was beset with technical glitches ranging from muted audio and choppy video, to venire members being excused because they couldn’t login, to an empaneled juror being excused because his screen froze. (Good thing they had an alternate.) But while some of the technical challenges in Zoom trials can be addressed with public education and faster, more reliable internet connections, what can’t be fixed are the constitutional violations that arise from the denial of an accused’s rights to effective assistance of counsel and confronting the witnesses and evidence against him.

In but one example, the jurors who served in the speeding ticket trial were unable to observe the body language (or what the United States Supreme Court has called “demeanor”) of the police officer who testified. Maryland v. Craig, 497 U.S. 836, 837 (1990). In a trial of greater consequence — for example, when an accused is facing jail or prison time — a person’s liberty cannot be left to the best guesswork of jurors who can’t see anything more than a two-dimensional view of a witness’ face. Every experienced cross-examiner can tell you about trials won and lost because jurors observed a key witness physically “squirming on the stand.” Additionally, the accused and her lawyers in the speeding ticket case couldn’t see the body language of the jurors. Oftentimes that’s crucial in knowing whether a message is getting through to them. (For whatever it’s worth, prosecutors usually sit closest to the jury. Losing their ability to study jurors up close would be a major blow.) Two-dimensional Zoom faces and an inability of jurors, lawyers and the accused to fully observe demeanor are a poor substitute for some of the cherished constitutional rights that Americans have fought and died for on battlefields all over the world.

In the speeding ticket trial, as YouTube viewers stared into jurors’ homes, took note of their eclectic furnishings and hoped no children would come strolling by, Judge Chu prepared to read the verdict. He paused for what seemed like a long time. It turned out that the defense attorney was somehow locked out of the virtual trial and in a different Zoom “room” (which is probably the technological equivalent of getting trapped in a courthouse restroom). Eventually, Judge Chu pronounced that the defendant had been found not guilty of the charge or Speeding in a Construction Zone, but guilty of the lesser charge of speeding. At least we can be confident the jurors didn’t reach a split verdict because they wanted to beat the traffic home.

The true danger in Class “C” Zoom trials is not that speeding defendants will get clobbered in greater numbers (although, that’s part of it). It’s that there really are some appealing characteristics in virtual trials. They are cheaper, require less security, save jurors and witnesses from having to show up at the courthouse and probably move trial dockets faster because there are fewer continuances. It is these attractive features that may one day convince judges to lobby for virtual Class “C” misdemeanor trials without consent of the parties. Then, of course, some public officials will wonder why we can’t just have Zoom trials in all misdemeanor cases. Perhaps Classes “A” and “B” misdemeanor Zoom trials will start as consent only. But then judges may complain — as they did in convincing the Texas Supreme Court to abandon the consent-of-the-parties clause from its Emergency Orders governing trials during the pandemic — that litigants shouldn’t get to decide whether, when and how to go to trial. Only judges should.

Judge Chu’s Zoom trial is exactly how slippery slopes begin. A delicate first step, followed by another, and then an irreversible momentum toward a really bad policy for accused citizens and everyone connected to the Texas criminal justice system.

When something is cheap and easy it eventually becomes irresistible to those in power. We are absolutely kidding ourselves if we believe that Zoom trials will never happen without consent of the parties or that they won’t be seriously considered in criminal cases punishable by jail or prison.

Mark my words on this.

TCDLA
TCDLA
Grant Scheiner
Grant Scheiner
Grant Scheiner is the 50th President of TCDLA. He is Managing Attorney of Scheiner Law Group, P.C. in Houston. Grant has practiced law since 1992, representing clients in state and federal courts. He is board-certified in criminal law by the Texas Board of Legal Specialization (TBLS) and currently serves on the TBLS Board. He is a Life Fellow of the Texas Bar Foundation, a Life Member of the National Association of Criminal Defense Lawyers, a former Large Section Representative to the State Bar Board of Directors, and a former Chair of the Computer & Technology Section of the State Bar of Texas. Grant is a single dad, a relentless trial lawyer and a passionate advocate for the rights of criminal defense attorneys and their clients.
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