Opinion
Criminal No. 2007-61.
August 8, 2008
Jason T. Cohen, AUSA, St. Thomas, U.S.V.I., For the plaintiff. Leonard B. Francis, Esq., St. Thomas, U.S.V.I., For defendant Monica Browne. George Hodge, Esq., St. Thomas, U.S.V.I., For defendant Judy Stowe. Jesse A. Gessin, AFPD, St. Thomas, U.S.V.I., For defendant Vishma Shivana Persad.
ORDER
Before the Court is the motion of the government to close the courtroom during the trial testimony of a government witness; to have that witness testify from behind a screen in order to conceal his identity from the defense, the jury and the public; and to seal the trial transcript of that witness's testimony.
I. FACTUAL AND PROCEDURAL BACKGROUND
The defendants in this matter were initially indicted in November, 2007 on various charges of harboring illegal aliens. A fourth superseding indictment was filed in July, 2008, alleging substantially the same offenses but adding one conspiracy count. The trial of this matter is currently scheduled for August 11, 2008.
In its motion, the government asserts its intention to call a foreign wire technician as a witness at trial. In support of its motion, the government has submitted certain documentation. That documentation states that disclosure of the technician's identity could imperil the technician's life and jeopardize other investigations in which the technician is involved.
The government asserts that the technician, with respect to this matter, activated the wiretap, ensured that the machinery was functioning properly, and downloaded information obtained from the wiretap onto a disk, which he kept in his possession until turning it over to a foreign law enforcement agency with which the technician works undercover. The government further asserts that the technician's testimony will be used at trial for authentication and chain-of-custody purposes.
On August 6, 2008, the Court held a status conference with the parties in this matter. The Court heard from all parties in this matter regarding the government's motion and, at the end of the conference, ordered the parties to file briefs. The government, Persad and Browne have all filed a brief. Stowe has not filed a brief. Persad and Browne oppose the motion.
The government's motion was filed ex parte. Because of the significant issues raised by the motion, the Court had the government explain the basis for the motion to the defense and afforded the defense an opportunity to be heard.
II. DISCUSSION
Broadly speaking, two significant interests are implicated by the relief the government seeks. The first such interest is the Defendants' Sixth Amendment right to a public trial and to confront witnesses against them. The second such interest is the First Amendment right of the public to view court proceedings.
The Sixth Amendment's Confrontation Clause provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. That provision also "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (citations omitted); see also Ohio v. Roberts, 448 U.S. 56, 63 (1980) ("[T]he Confrontation Clause reflects a preference for face-to-face confrontation at trial."). "This interpretation derives not only from the literal text of the Clause, but also from our understanding of its historical roots." Maryland v. Craig, 497 U.S. 836, 844 (1990) (citations omitted). It is also "premised on the well-accepted notion that `eye-to-eye' contact between the accused and his accuser is more likely to lead to the truth." United States v. Abu Ali, 528 F.3d 210, 239 (4th Cir. 2008) (citing Coy, 487 U.S. at 1019-20 ("It is always more difficult to tell a lie about a person `to his face' than `behind his back.'").
The right to face-to-face confrontation is not absolute. Craig, 497 U.S. at 849-50. "[W]here a defendant's right to confront a witness against him will be affected, the determination of whether a particular case requires a departure from usual procedures must be made, by the trial court, on a case-by-case basis." United States v. Yates, 438 F.3d 1307, 1315 (11th Cir. 2006) (en banc). Specifically, a court must find that "(a) that the denial of physical, face-to-face confrontation at trial is necessary to further an important public policy and (b) that the reliability of the testimony is otherwise assured." Id. (citing Craig, 497 U.S. at 850, 855).
Before reaching the merits of the government's motion, a brief discussion of the Supreme Court's decisions in Coy and Craig is instructive.
In Coy, the defendant was convicted of sexually assaulting two young girls. 487 U.S. at 1014. The prosecution asked the trial court to allow the two girls to testify via closed-circuit television or to allow a screen to be placed in the courtroom. Id. The trial court permitted the latter option, thus enabling "the complaining witnesses to avoid viewing appellant as they gave their testimony." Id. at 1014-15, 1020. On appeal, the Supreme Court reversed the defendant's conviction, holding that a criminal defendant has the right to confront a witness against him face-to-face, and that the screen in that case denied the defendant that right. Id. at 1020-21. The Court left "for another day . . the question whether any exceptions exist" to the face-to-face requirement. Id. The Court specified that if such an exception existed, it "would surely be allowed only when necessary to further an important public policy," and "[s]ince there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception." Id.
Two years after Coy, the Supreme Court had occasion to consider an exception to the face-to-face requirement in Craig. In Craig, the defendant raised a Sixth Amendment challenge to a Maryland rule of criminal procedure that permitted minor victims of abuse to testify via one-way closed circuit television from outside the courtroom. 497 U.S. at 858. The defendant was able see the minor witness on a video monitor, but the witness could not see the defendant. Id. at 841-842. The defendant argued that his Sixth Amendment confrontation rights were violated because he was deprived of a face-to-face encounter with the witness. The Supreme Court rejected that argument and approved Maryland's rule, reasoning that "though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers." Id. at 849-850. Specifically, the Court concluded that the "state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify . . . in the absence of face-to-face confrontation." Id. at 855. The Court made clear that "[s]o long as a trial court makes a case-specific finding of necessity, the Confrontation Clause does not prohibit a State from using a one-way closed circuit television procedure for the receipt of testimony by a child witness in a child abuse case." Id. at 860.
The first element in Craig requires a showing that "considerations of public policy and necessities of the case" compromise the right to a physical face-to-face meeting. 497 U.S. at 848. Here, the government correctly articulates the narrow exception set forth in Craig but fails to assert any public policy, important or otherwise, that would be served by allowing the technician to testify under the circumstances the government seeks. Instead, the government focuses almost exclusively on the necessity of the technician's testimony and the risk that disclosure of his identity could jeopardize his life and other investigations. To the extent the government argues that it needs the technician's testimony to proceed in its prosecution of the Defendants, the Court finds that argument unconvincing.
In Yates, the Eleventh Circuit, sitting en banc, expressly rejected the prosecution's need for particular testimony as sufficient to invoke Craig's exception. See 438 F.3d at 1316. The district court in that case considered sufficient the prosecution's asserted "important public policy of providing the fact-finder with crucial evidence" and "interest in expeditiously and justly resolving the case." Id. (quotation marks omitted). The Eleventh Circuit accepted that "the witnesses were necessary to the prosecution's case" and agreed that the prosecution's "interest in presenting the fact-finder with crucial evidence is . . . an important public policy." Id. The court nevertheless held that "the prosecutor's need for the video conference testimony to make a case and to expeditiously resolve it are not the type of public policies that are important enough to outweigh the Defendants' rights, to confront their accusers face-to-face." Id.
The Yates Court further reasoned:
Craig requires that furtherance of the important public policy make it necessary to deny the defendant his right to a physical face-to-face confrontation. In this case, there simply is no necessity of the type Craig contemplates. When one considers that [Federal] Rule [of Criminal Procedure] 15 (which provides for depositions in criminal cases) supplied an alternative, this lack of necessity is strikingly apparent.438 F.3d at 1316 (internal citations omitted).
This Court finds the Yates Court's reasoning persuasive. Accordingly, to the extent the government does no more than assert its need for the technician's testimony, the Court finds that the government has failed to meet its burden of showing that the first Craig element is satisfied.
Even if the government had demonstrated an important public policy, its claim for relief must fail because the government has not made an adequate showing that the second Craig element is satisfied. The second element of the exception set forth in Craig requires a determination of whether the reliability of the non-face-to-face testimony is "otherwise assured." 497 U.S. at 850. The Craig Court explained that while it was "mindful of the many subtle effects face-to-face confrontation[, . . .] the presence of . . . other elements of confrontation — oath, cross-examination, and observation of the witness' demeanor — adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony." Id. at 851 (emphasis supplied).
In this matter, the government makes no attempt to explain what will compensate for the Defendants' and the jurors' inability to observe the technician's demeanor.
In short, the government has failed to establish the necessity of the technician's testimony, the public policy to be served by allowing the technician to remain in total anonymity, and the trustworthiness of the technician's testimony.
It bears noting here as well that the documentation that the government has submitted to the Court in an effort to substantiate its motion, is deficient in many respects. One item is an affidavit that is not based on the affiant's personal knowledge, and thus is not competent evidence. See, e.g., Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128, 1129 (D.C. Cir. 1979) ("Competent evidence is . . . synonymous with `admissible.'"). The other item, while apparently intended to be an affidavit, does not appear to be either sworn or notarized. Accordingly, the Court gives this documentation little, if any, weight. See, e.g., DeBruyne v. Equitable Life Assurance Soc., 920 F.2d 457, 471 (7th Cir. 1990) (noting that because an affidavit was not notarized and did not subject the affiant to penalties for perjury, it "was not within the range of evidence that the district court could consider").
The government's request that the technician's identity be entirely concealed from essentially everyone, save for court personnel, is really a consequence of the technician's refusal to testify in the absence of total concealment. The Court is far from persuaded that one witness's refusal to testify, without more, provides firm enough footing to justify the sharp abridgment, if not the wholesale abrogation, of the Defendants' constitutional rights to confront a witness against them.
At the August 6, 2008, status conference, the government conceded that the technician's refusal to testify is the main basis for the extraordinary request asserted in the government's motion.
Because the Court finds that the government has failed to make an adequate showing of why the Defendants' Sixth Amendment confrontation rights should be curtailed, the Court does not reach the Defendants' Sixth Amendment rights to a public trial and the public's First Amendment right to access.
For the reasons stated above, it is hereby
ORDERED that the motion is DENIED.