Concerns about Video Evidentiary Hearings

This post was written by Benjamin Wolff, Director of Capital Writs, Austin Texas. Attorneys should keep all of these concerns in mind.

EXTERNAL MESSAGE 

While I respect the need to act in the interests of individual clients, and recognize that every client’s needs are different, I would urge that everyone in this community be circumspect about the use of video conferencing for evidentiary hearings in post-conviciton cases.  Yes, it may be convenient for the parties. And yes, certain experts may be able to testify via zoom, but this is a huge can of worms that I fear will ultimately negatively impact other clients.  And to the extent that this technology is embraced in particular cases where it’s less problematic, I worry that this will cement the practice in cases where it is deeply problematic. 

I do not mean this email as a criticism of any particular decision to proceed with zoom or another video conferencing program for a hearing, if it’s in a specific client’s best interests; rather, I just want to offer some of my concerns about this development generally in the contested witness hearing context (as opposed to the negotiated settlement, waiver, and getting-people-out-of-jail contexts).

This is a major issue right now in Texas, where the court system has issued an order permitting the 3000 trial courts in the state to conduct everything except for jury trials via Zoom.

Here are some of the issues I see with video conferencing in the PC context:

• No confidentiality. The moderator of a zoom call (the court) can monitor, listen and record all supposedly private side channels (such as hypothetical ones that would involve attorney-client communication). Depending on your rules of appellate procedure, recordings of any proceeding may become part of the court record. 
• Only some aspects of lawyering can be accomplished via video. Competent investigation cannot be done presently, and cannot be done via zoom or phone. The Guidelines require investigation, witness-interviewing to be done in person. The same, ideally, goes for much pre-testimony hearing prep. These standards do not go away with the declaration of a disaster. In our cases, we’ve taken the position that investigation is inseparable from lawyering, and while we’re unable to conduct in-person field investigation on our cases, our clients are effectively without counsel (or, at least, conflict-free counsel).
• Clients with intellectual disability, mental illnesses, and non-English speakers will be particularly affected. These  clients  are disadvantaged in the criminal justice system as it generally operates, but could hardly be expected to be competent to consult with or assist counsel (and/or interpreters) who are not present, or to follow the testimony of witnesses they don't see. Will they even be able to navigate when they are speaking confidentially to their lawyer? And those clients cannot be visited before hearings because there is no visitation, and often would not fully comprehend communications in writing. 
• Access to Courts. Zoom and other video conferencing software require a high speed internet connection, a computer, and a webcam.  30% of Texans lack high speed internet, and I suspect the percentage is similar in other states. Does the public’s access to courts and ability to participate in their case require that they risk the safety of themselves and their community by travelling to a central location where internet, computer and webcam access is available in order to participate? Would it require that they purchase the computer, internet access, etc. as the cost of contesting their case? Internet access and computer equipment seems like an entry fee to the courthouse, akin to a poll tax. 

• Compulsory Process. What about witnesses? And obtaining documentary evidence? Our clients have a right to compulsory process. How does this work when witnesses have to appear by video, if at all? Would clients have a right to only call witnesses that have computers and internet at home? Would the court system provide witnesses equipment? Or would the right to compulsory process be burdened by forcing the defense/petitioner to bear that responsibility? How do we—or anyone possibly call witnesses by video when we cannot serve them or come near them? What if the witnesses don’t have the right equipment, computers, webcams, high speed internet? What about witnesses who we can’t really serve under the present circumstances (e.g., if you only know a work address and have no idea where they are being quarantined, and they don’t have an email)? 
• Uncontrolled circumstances of witness testimony. Another problem with having witnesses testifying from remote locations is that you have them testifying from remote locations under uncontrolled circumstances. For adverse witnesses, how can we be satisfied that there was no one in the background intimidating them or coaching their testimony? Or that they are not reading from a “cheat sheet” in a separate computer window, or researching the issue on the internet as they testified? One of the often forgotten beneficent aspects of the courtroom is that it’s a controlled environment where you can control for external influences and taint. That’d be impossible with witnesses testifying from their homes or remote locations.  

We have lots of evidentiary hearings lined up.  And the chance is non-negligible that we’ll be ordered to proceed via zoom in the next few months.  We’re trying to hold the line as best as we can.  What we don’t want is for a court to say that we’re going to have a video hearing where we can present whatever we want, which, under the present circumstances, would limit us to basically the pre-pandemic evidentiary picture and pleading-level declarations to the detriment of live testimony and an evidentiary hearing informed and bolstered by ongoing, in-person investigation.      

Benjamin B. Wolff

Director, Office of Capital and Forensic Writs

1700 Congress, Suite 460

Austin, TX 78701

(512) 463-8502

Benjamin.Wolff@ocfw.texas.gov

Revised proposal to amend Florida Criminal Procedure rule 3.800(c) to allow for modification of a sentence at any time upon stipulation.

Proposal to amend Florida Rule of Criminal Procedure (F.R. Crim. Pro.) 3.800(c).

Submitted by N. Adam Tebrugge, Florida Bar# 473650    adam@tebruggelegal.com   

Proposal: The rule should be amended with language, such as: “Upon stipulation of the state attorney and the defendant, and after a hearing, the trial court may reduce, modify or correct a sentence at any time.”

Present situation: Under F.R. Crim. Pro. 3.800 (c), a motion to modify sentence must be filed within 60 days of the sentence becoming final. No rule of procedure presently allows for a motion to modify or reduce sentence after that time has run. While an “illegal sentence” may be corrected at any time (See F.R. Crim. Pro. 3.800(a)), there are occasions where a legal sentence should be corrected due to oversight or error. The restrictive nature of the present rule forces the parties and the court to develop “workarounds” when it is necessary to reduce, modify or correct a sentence outside the time limits.

History: This rule was adopted in 1968. The committee notes reflect that the rule was the “same as sections 921.24 and 921.25 Florida Statutes,” and were “similar to Federal Rule of Criminal Procedure 35.” The relevant Florida statutes were repealed in 1969 (See 1970 supplement to Florida Statutes). Now chapter 921 of the Florida Statutes contains the Criminal Punishment Code.

       When considering the 60 day limitation on motions to modify, the courts have considered this to be a jurisdictional issue. See, e.g. Abreu v. State, 660 So.2d 703 (Fla. 1995); McCormick v. State, 961 So.2d 1099 (Fla. 2d DCA 2007); Schlabach v. State, 37 So.3d 230 (Fla. 2010). In response to these cases, F.R. Crim. Pro. 3.800(c) was amended in 2011. See Amendments to Rule of Criminal Procedure 3.800(c), 76 So.3d 913 (Fla. 2011).  The amendment expanded the trial court’s jurisdiction to rule on a timely filed motion to “90 days from the date the motion is filed or such time as agreed by the parties or as extended by the trial court to enter an order ruling on the motion.” (emphasis added). Thus, the rule already contemplates that the court’s jurisdiction can be extended by stipulation. 

Why should the rule be amended? The sixty-day rule is overly restrictive and does not provide any exceptions. The court and the parties should not have to invent workarounds to the rules of procedure. There should be a mechanism that allows modification of a sentence when there is agreement. A safety valve should be in place that allows the flexibility to modify a sentence that all agree is unjust. Additionally, this rule would be useful whenever there is an emergency or other situation where it is necessary to take quick action.

Examples: The basis for this proposal is to give the court system the flexibility to address certain cases where everyone agreed that the interests of justice were at stake. An example of such a case might be found in the story of Cynthia Powell. As described in a story by REASON, an online publication:

     “In 2002, Powell was set up by a confidential informant and arrested after she sold 35 hydrocodone pills to an undercover police officer. Powell pleaded guilty and tried to likewise become an informant, but after she failed to provide police with any arrests—because she was a 40-year-old grandmother with no prior criminal history—prosecutors withdrew her "substantial assistance" agreement. The judge was forced to sentence her to a mandatory 25 years in Florida state prison, where she remains today.

If Powell had been convicted after 2014, when the Florida legislature lowered the state's mandatory minimum sentences for opioid trafficking and raised the weight thresholds to trigger them, Powell would already be free. As it stands today, she won't be released until 2023.”

     In other words, this first-time offender has already served seventeen years of a twenty-five year minimum mandatory sentence, where the maximum penalty under current Florida law is fifteen years. Under my proposal, Powell could make her case to the Office of the State Attorney that prosecuted her, and only if that office agreed that relief might be appropriate, ask the Court to modify her sentence after a properly noticed hearing.

    Also, this rule would provide a mechanism to address emergencies or other situations where immediate relief was warranted. For instance: What if an inmate was diagnosed with an infectious disease that put all members of the facility at risk? The proposed amendment to Rule 3.800(c) would allow the court system to rapidly address such a situation, again, only if everyone agreed.

Safeguards: Safeguards are in place in the contemplated amendment.

     a). The state attorney would be the gatekeeper, as the amendment would require their stipulation to any modification. As a constitutional officer and elected official, the state attorney is uniquely positioned to be responsive to the law and to their community.

     b). Any reduction, modification or correction would require judicial approval. Judicial approval would prevent stipulated modifications that do not comply with other Florida laws.

     c). The rule contemplates a properly noticed public hearing in order to ensure transparency and that there is a record of any modification.

     d). The Florida Constitution (Art. I, s. 18(b)) and Florida statutes (F.S. 960.001) require notice to any victim for a hearing of this type.

Impact on Judicial Resources: Because a hearing would be held only when the state attorney and defense stipulated to a modification or correction, hearings would be limited to explaining the circumstances to the court. Typically such a hearing would be very brief. The reason there should be a hearing is to ensure transparency and compliance with Florida law, including notice to any affected person, such as a victim.

A proposal to allow judges to modify sentences at any time upon stipulation

Proposal to amend Florida Rule of Criminal Procedure (F.R. Crim. Pro.) 3.800(c).

Submitted by N. Adam Tebrugge, Florida Bar# 473650

Proposal: The rule should be amended with language, such as: “Upon stipulation of the state attorney and the defendant, and after a hearing, the trial court may modify or correct a sentence at any time.”

Present situation: Under rule 3.800 (c), a motion to modify sentence must be filed within 60 days of the sentence becoming final. No rule of procedure presently allows for a modification of sentence after that time has run. Occasionally, the parties to a proceeding and the judge may use F.R. Crim. Pro. 3.850 to accomplish a sought upon modification. While an “illegal sentence” may be corrected at any time (See F.R. Crim. Pro. 3.800(a)), there are occasions where a legal sentence should be corrected due to oversight or error.

History: This rule was adopted in 1968. The committee notes reflect that the rule was the “same as sections 921.24 and 921.25 Florida Statutes,” and were “similar to Federal Rule of Criminal Procedure 35.” The relevant Florida statutes were repealed in 1969 (See 1970 supplement to Florida Statutes). Now chapter 921 of the Florida Statutes contains the Criminal Punishment Code.

       When considering the 60 day limitation on filing a motion to modify, the courts have considered this to be a jurisdictional issue. See, e.g. Abreu v. State, 660 So.2d 703 (Fla. 1995); McCormick v. State, 961 So.2d 1099 (Fla. 2d DCA 2007); Schlabach v. State, 37 So.3d 230 (Fla. 2010). In response to these cases, F.R. Crim. Pro. 3.800(c) was amended in 2011. See Amendments to Rule of Criminal Procedure 3.800(c), 76 So.3d 913 (Fla. 2011).  The amendment expanded the trial court’s jurisdiction to rule on a timely filed motion to “90 days from the date the motion is filed or such time as agreed by the parties or as extended by the trial court to enter an order ruling on the motion.” (emphasis added). Thus, the rule already contemplates that the court’s jurisdiction can be extended by stipulation.  

Why should the rule be amended? The sixty-day rule is overly restrictive and does not provide any exceptions. The court and the parties should not have to invent workarounds to the rules of procedure. There should be a mechanism that allows modification of a sentence when there is agreement. A safety valve should be in place that allows the flexibility to modify a sentence that all agree is unjust.

Safeguards: Safeguards are in place in the contemplated amendment.

     a). The state attorney would be the gatekeeper, as the amendment would require their stipulation to any modification. As a constitutional officer and elected official, the state attorney is uniquely positioned to be responsive to the law and to their community.

     b). Any modification or correction would require judicial approval. Judicial approval would prevent stipulated modifications that do not comply with other Florida law.

     c). The rule contemplates a properly noticed public hearing in order to ensure transparency and that there is a record of any modification.

     d). The Florida Constitution (Art. I, s. 18(b)) and Florida statutes (F.S. 960.001) require notice to any victim for a hearing of this type.

Going Forward: The enhancements subcommittee should report favorably on this proposal to the Criminal Punishment Code Task Force. The Task Force should: 1) recommend that the Florida Legislature consider and adopt the proposed amendment; 2) Recommend that the Florida Bar Criminal Procedures Rules Committee adopt the proposed amendment. These recommendations appear to be within the scope of the Task Force. The Task Force was created “for the purpose of reviewing, evaluating and making recommendations regarding sentencing . . . under the Criminal Punishment Code.” See  Laws of Florida ch. 2019-167;  s. 152(1).