COVID Protocols for Criminal Trials Upheld by 4th Circuit

The 4th U.S. Circuit Court of Appeals has rejected arguments that COVID protocols for criminal trials in federal court violate the Constitution because public health and safety are the top priority and the protocols are no more extensive than necessary.

The defendants claimed the public should have the opportunity to observe criminal proceedings, including juries, and that the protocols were constitutionally inadequate. They also argued that the court erred by allowing video testimony from unavailable witnesses rather than requiring them to appear.

U.S. District Judge Robert B. King was convinced that neither the transcripts nor the testimony violated the Constitution.

“Given the extenuating circumstances of the COVID-19 pandemic, we are satisfied that if a partial closure occurred here – not a jury opinion – it was not “more extensive than necessary” and was supported by “substantial reasons.”[s]”” King wrote. “In short, our de novo review of this matter confirms that the District Court’s implementation of the COVID-19 protocol does not violate the Open Trial Clause.”

U.S. District Judge G. Steven Agee agreed with King’s sentencing decision.

In a dissent, U.S. District Judge Toby J. Heytens pointed out that “the government could not cite a case in which a witness was constitutionally declared ‘unavailable’ under the trial court’s subpoena power, even though the government had never issued a subpoena.” delivered.”

The opinion is United States v. Smith (VLW 024-2-268).

Paul Beers of Shook, Hardy & Bacon in Roanoke, representing Alcorn, declined to comment but thanked the court for granting Alcorn a resentencing in full court. The US Attorney’s Office also declined to comment.

The defendants were given until November 1 to reconsider.

COVID protocols

After a three-week trial, Aghee Smith II and David Alcorn were convicted of their involvement in illegal schemes that defrauded multiple investors of millions of dollars. The trial began in February 2022 and was conducted in accordance with the court’s COVID protocol.

According to this protocol, three courtrooms were used for the trial of the defendants, one of which held the majority of proceedings in a “trial courtroom” used by the jury, court staff, defendants, and attorneys.

A second courtroom was designated as a “public viewing courtroom,” where the public could follow proceedings via video and audio streams. The third courtroom would be reserved as a jury room; Standard jury rooms did not allow for social distancing.

Before the trial, the government requested that the video testimony of three witnesses from other states – each elderly at increased risk of COVID – be admitted into evidence because they were unavailable to testify. The court admitted the evidence over the defendant’s objection.

The defendants’ appeals of their convictions focused on the constitutionality of the court’s COVID protocols and the admission of witness testimony.

Public view

The defendants claimed that the jury’s public opinion protected them from a wrongful conviction, ensured that trial participants fulfilled their duties and helped maintain public confidence in the justice system, citing the 9th U.S. Circuit Court of Appeals in the case United States v. Allen.

However, King said the lack of a visible jury was “markedly different” from a completely closed courtroom.

“Although the jurors in the courtroom were not visible to spectators in the public viewing courtroom, interested observers were not prevented from seeing and hearing the proceedings,” he emphasized. “Rather, the forum for public observation has simply been moved from the courtroom gallery to the public courtroom.”

The judge agreed with the U.S. District Court for the District of Columbia’s ruling in United States v. Barrow that there is “no legal authority to suggest that the Sixth Amendment requires every viewer to have a view of every angle.” of the courtroom.”

“And ‘[a]”As a practical matter, a spectator watching a trial from the courtroom gallery would not have a perfect view of every corner of the courtroom – let alone every single juror,” King noted, adding that the trial of the defendants ” “It could only be a partial process. At best, the courtroom would be closed.”

Essential reasons

King said even a partial courtroom closure could be justified by circumstances, such as a defendant’s right to a fair trial or preventing the disclosure of sensitive information.

“Containing the spread of COVID-19 and protecting public health are also ‘overriding interests’ that could well justify a complete courtroom closure, as even Smith and Alcorn acknowledge,” he wrote.

The U.S. Supreme Court ruled in Waller v. Georgia that a courtroom closure was constitutionally permissible if it pursued an overriding interest that was likely to be prejudiced and was not more extensive than necessary, taking into account reasonable alternatives and appropriate ones findings would be made in support.

The defendants acknowledged Waller’s first position, but cited Allen as arguing that the closure was more extensive than necessary and was not justified by a valid reason.

Aside from not being a precedent-setting case, King said Allen was distinguishable – the public would not be able to see any of the trials in Allen.

“In this situation, as emphasized in the protocol decision, ‘[a]The entire courthouse staff [had] “We went to extraordinary lengths to protect a defendant’s constitutional rights in the midst of a highly contagious, potentially deadly and ever-fluctuating pandemic,” the judge said.

King concluded that even if there was a partial closure, it was no more extensive than necessary, was supported by valid reasons, and did not violate the open trials clause.

Good faith efforts

Federal Rule of Criminal Procedure 15(A)(1) permits a party to secure the testimony of a potential witness through video testimony to be played at trial if the court finds exceptional circumstances and an interest in justice.

Smith alleged that the prosecutor failed in good faith to obtain the presence of three witnesses at trial despite the trial court’s express finding that they were unavailable, which he contended was incorrect.

“Evidence of good faith requires that a ‘reasonable effort’ be made to secure the appearance of the witness,” King explained. “According to the Supreme Court in [Ohio v.] Roberts,'[t]The law does not require the commission of a futile act to ensure the witness’s appearance in court, and certainly does not prohibit any particular act.”

A good faith statement also does not require the government to use the subpoena process or take other specific steps to secure the witness’s appearance.

A multi-day train trip across the country or a charter flight were not sensible alternatives for the three witnesses here.

Because Smith did not present evidence on the availability issue, King was satisfied that the district court had not erred in finding that the witnesses were unavailable based on the government’s unchallenged evidence.

The judge rejected Smith’s claim that the district court’s unavailability finding was based on general concerns about COVID, noting that the confrontation clause “is not blind to the health and safety of witnesses.”

“In other words, although ‘[t]“The confrontation clause reflects a preference for personal confrontation in the process,” King said.