‘No sick days’ for confrontation clause, says Missouri Supreme Court

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The Missouri Supreme Court vacated and remanded three cases on Jan. 11 where each criminal defendant, including two juveniles tried as adults, objected to the use of two-way video in their hearings.

In both Missouri v. Smith and C.A.R.A. v. Jackson County Juvenile Office, the defendants each appealed judgments after a circuit court allowed witnesses to testify via two-way video. In the case of J.A.T. v. Jackson County Juvenile Office, the Missouri Supreme Court vacated a lower court judgment and remanded it, stating that the circuit court violated J.A.T.’s due process rights by requiring him to appear via two-way video rather than allow him to be physically present at the adjudication hearing.

Alongside the majority opinion for J.A.T., Judge W. Brent Powell noted in a concurring opinion not to construe the opinions too broadly because of the circumstances of the cases. He said that J.A.T. was specifically prejudiced because he could not easily communicate with his counsel and be present to observe the proceedings and testifying witnesses.

“Here, the circumstances surrounding the adjudication proceeding did not justify excluding J.A.T. from the hearing as the circuit court could have taken other measures to ensure J.A.T.’s safe presence in the courtroom,” Powell said.

In defendant Rodney Smith’s case, a forensic lab technician was called to testify on DNA results during his paternity leave, which was against the department’s policy. The technician later volunteered to testify via Zoom. His testimony was the only one that linked Smith’s swabs to DNA found in the victim’s sexual assault examination, while other testimonies established that the victim recanted her allegations.

The state Supreme Court said in its opinion in favor of Smith that admitting the technician’s testimony was not harmless beyond a reasonable doubt. It noted that while other courts had expanded the meaning of the U.S. Supreme Court case Maryland v. Craig  to allow adult witnesses to appear via two-way video, in addition to the case’s original intent to prevent trauma for children testifying in child abuse cases, the Missouri Supreme Court disagreed.

“I was thrilled to see that they limited Craig to its max,” St. Louis Public Defender Nina McDonnell said, who represents Smith.

Kristen S. Johnson, from the Jefferson City attorney general’s office, represented the state in its case against Smith. AGO spokesperson Chris Nuelle did not respond to an email request for comment on the case.

Fourteen law professors around the nation, via Michael Durham of Dowd & Dowd as well as Chad Flanders of Saint Louis University, previously filed an amicus brief in favor of Smith regarding his right to confrontation. There is speculation in the group on whether the U.S. Supreme Court may accept the case on appeal.

Chad Flanders said that amid the latest peak of COVID-19 cases, the decision answers the question in Missouri of whether or not to prioritize constitutional rights over public health that’s also being asked around the nation.

“We’re facing this again, unfortunately, where the rise of COVID again is putting pressure on court systems,” Flanders said, “but then you can’t get around that, however serious the crisis is, by violating a defendant’s constitutional rights.”

In defendant C.A.R.A.’s case, a judicial officer opposed his request for an in-person adjudication hearing, citing the COVID-19 pandemic. The officer presented two-way video testimony from the underage victim as well as the mother and babysitter, and C.A.R.A. later appealed on the claim that this violated his right to confrontation.

In J.A.T.’s case, all parties appeared in person for court except for the defendant. The juvenile office claimed in both cases that it used two-way video for the safety of all parties.

Judge Zel M. Fischer wrote in the opinions for C.A.R.A. and J.A.T. that while the court “recognizes the devastating toll the COVID-19 pandemic has taken in this country and our state and the substantial impact the pandemic has had on all aspects of society,” he stated that general virus concerns don’t override an individual’s constitutional right to confront witnesses in a judicial adjudication hearing.

Kansas City Public Defender Jeff Esparza represented both juvenile defendants versus the juvenile office. He echoed the court opinions when he noted the importance of in-person court appearances, particularly for juveniles in this case who were tried as adults.

But he also said that at the time Jackson County Circuit Judge Jalilah Otto was doing her best to prevent COVID-19 spread at a time when policies were uncertain.

“I think that she was doing her best to try to keep kids safe, but that’s not enough when it comes to taking away somebody’s liberty,” Esparza said.

The juvenile office was represented by its own attorney Bree Sturner. When contacted via email, Jackson County Circuit Court Public Information Officer Valerie Hartman declined to comment.

The cases are Missouri v. Smith, SC99086; C.A.R.A. v. Jackson County Juvenile Office, SC99231; and J.A.T. v. Jackson County Juvenile Office, SC99251.