No ‘sick days’ for constitutional rights: Missouri Supreme Court rules against virtual trials

There are no “sick days” for constitutional rights, the Missouri Supreme Court ruled Tuesday as it overturned the results of a juvenile case partly held online because of the COVID-19 pandemic.

The court issued rulings in three cases that test whether courts can have witnesses, defendants or both appear via remote link software when the accused are in jeopardy of being imprisoned or confined to a juvenile facility.

In each case, Judge Zel Fischer, with a unanimous court agreeing, said there is no substitute for in-person proceedings when the stakes are that high. The Sixth Amendment to the U.S. Constitution guarantees the accused the right “to be confronted with the witnesses” and the Missouri Constitution requires that the accused be given an opportunity “to meet the witnesses against him face to face.”

“Neither the United States Constitution nor the Missouri Constitution are entitled to take ‘sick days,’” Fischer wrote in a case involving a juvenile who was not allowed to appear before a judge.

All three cases were brought before the court by the Missouri State Public Defender’s office.

“We are very happy with decisions,” Mary Fox, director of the office, wrote in an email to The Independent.

Attorney General Eric Schmitt’s office, which could ask for a rehearing in the cases or seek an appeal to the U.S. Supreme Court over the federal constitutional questions, did not respond to a request for comment.

In the adult case, tried before the pandemic, Rodney Smith of St. Louis was convicted of two counts of statutory rape in a trial that included testimony from a police lab employee conducted via two-way video. 

Without the testimony, Fischer wrote, DNA evidence linking Smith to the assault would not have been admitted. The woman involved had recanted her accusations, he noted.

“The error of admitting (the lab technician’s) two-way live video testimony was not harmless beyond a reasonable doubt,” Fischer wrote.

The ruling in Smith’s favor creates two important guideposts for Missouri courts, said Nina McDonnell, who argued the case on appeal.

“First and foremost, the right to face-to-face, in person confrontation is secured in Missouri,” she said.

Secondly, the ruling limits the use of video testimony to cases where there is a finding a child victim of sexual assault would experience additional trauma by appearing in court, she said.

That is already established in law, but she said the ruling ensures those are the only cases where that can take place.

The two juvenile cases, both out of Jackson County, did involve the courts’ interpretation of emergency rules established by the Supreme Court to reduce the likelihood of COVID-19 outbreaks tied to courtrooms.

In one, a 12-year-old juvenile, identified as C.A.R.A. because of confidentiality in juvenile cases, was accused of sexually molesting another child and was placed in residential custody at a June 19, 2020, family court hearing. 

With access limited because of COVID-19 restrictions, only the judge, the judge’s staff, the juvenile and the juvenile’s attorney were present in the courtroom. The juvenile officer and other witnesses, including the alleged victim, appeared remotely via videoconference.

In the other, a 14-year-old identified as J.A.T. was accused of acts that would be first-degree assault and two counts of  armed criminal action if committed by an adult. In that July 2020 hearing, the judge required J.A.T. to participate via two-way live video from the juvenile detention facility while everyone else, including his attorney, his parents and the witnesses appeared in person.

The judge limited the number of people present because of the danger of coronavirus infections getting into the juvenile detention facility. At the time, the Missouri Supreme Court had ordered courts to limit their proceedings to absolutely necessary actions.

“Contrary to the circuit court’s statements, this court was careful to ensure its order incorporating  the operational directives would not be interpreted to permit the violation of a juvenile’s constitutional or statutory  rights,” Fischer wrote.

Jeff Esparza, who leads the children’s appellate system for the public defender’s office, said there are at least three other cases pending at the state Courts of Appeals with similar circumstances. He expects those cases will now be returned to the circuit courts for further proceedings.

A video hearing cannot replace a courtroom, with the judge seated high on his bench and the accused looking directly at the witness, Esparza said.

“When people are remote, they say and do things and act in ways different than they would ever do in front of somebody,” he said.

The U.S. Supreme Court, in its rulings upholding the right to confront witnesses, has found there are two purposes for face-to-face trials — seeking the truth and symbolism.

“The truth-seeking purpose includes notions of promoting reliability, impressing upon witnesses the seriousness of their testimony, allowing the trier of fact to observe the demeanor of witnesses, and subjecting the witnesses to cross-examination,” Fischer wrote. “The symbolic purpose consists of promoting ‘an open and even contest in a public trial.’”

A group of 14 law professors who teach and write about criminal procedure, including former Missouri Supreme Court Judge Mike Wolff, filed a friend-of-the-court brief in Smith’s case arguing that the court should require testimony at trials to be conducted in-person.

Chad Flanders of St. Louis University, one of the authors of the brief, said in an interview Tuesday that the decision upholds the points the brief urged on the court.

Nothing can replace an in-person hearing, Flanders said. When someone is testifying remotely, usually those in the courtroom can only see their face.

“What else is going on that we can’t see?” Flanders said. “Is he nervously drumming his fingers? Is someone coaching him offline?”