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Sunday, November 22, 2009

New face of court testimony

NASHUA – When a Nashua detective took the witness stand to testify against accused child molester Jose Hernandez, he wore a piece of clothing more commonly worn by a burglar or stickup artist: a ski mask.

The detective was testifying at Hillsborough County Superior Court about a confession he took from Hernandez, who stood accused of raping and molesting a 12-year-old girl in September 2007.

Brian Page, the detective who had worked in the department’s Youth Services Division, wore the mask because he had since been transferred to the Narcotics Intelligence Division and was working undercover on drug investigations.

Appearing without the mask could have put his safety, and the success of the drug investigations, in danger, prosecutors argued. Hernandez and his lawyer argued it stepped on Hernandez’s right to confront his accusers, a right guaranteed in federal and state constitutions.

Until last week, it was an argument that while not common, was also not unheard of, and trial court judges were on their own to wade through the issues of officer safety versus constitutional rights.

Last week, the state Supreme Court ruled that the judge in the Hernandez case had committed a “harmless error” in allowing the detective to testify while wearing a mask because the other evidence against Hernandez was overwhelming.

But the court went further and established a test that trial courts should use to balance a defendant’s rights with a witness’s safety. The balance, according to the Hernandez decision, tells trial judges that when considering whether to allow a defendant to wear a disguise, they must first make specific rulings that it’s necessary and that the “reliability of the evidence is otherwise assured.”

The court referred to another case, Maryland v. Craig, in which assuring the evidence was done by requiring four other elements of the witness’ testimony: their physical presence, their oath, a chance for cross-examination, and the court and defendant’s ability to observe their demeanor.

The Hernandez case put squarely before the state’s highest court the tension between police officials’ desire to keep their officers safe while fighting crime and defendants’ right to confront their accusers, rights that are guaranteed in the U.S. and state constitutions.

David Rothstein, deputy chief of the state’s appellate defender program, argued on Hernandez’s behalf before the New Hampshire Supreme Court. He said that while the test was established, the court didn’t apply it to Hernandez’s arguments. Instead, it resolved the case by finding there was a harmless error and affirming the Superior Court judge’s ruling.

“They just sort of made some general guidelines,” Rothstein said. “I think what we can learn from this case is somewhat limited. I think the court is acknowledging there’s a confrontation interest and a pretty strong one.”

But the Hernandez decision is the first time the court has taken up the question of an officer or witness testifying while shrouding his or her face, although other states have ruled on the issue. Previously, trial courts ruled on a case-by-case basis without guidance from the Supreme Court.

In fact, in August, a former Nashua man was found not guilty by a jury after a trial during which county prosecutors asked a judge to allow another Nashua detective to testify while wearing a mask.

James Caron, 44, was found not guilty on four counts of aggravated felonious sexual assault after being accused of molesting a young girl during the 1990s.

Judge William Groff denied the state’s request, which again was based on the detective’s undercover work, because it would have denied Caron his right to confront his accusers.

The detective ended up testifying anyway, according to Assistant County Attorney Joseph Fricano.

Thomas Bocian, the assistant attorney general who argued for the state in the Hernandez case, said the decision will help trial court judges and demand they consider each disguise request on its own merits.

“I think it’s a very helpful decision because it provides guidance for the state,” Bocian said. “The court’s decision recognizes that officer safety may be an important issue, but has to be considered on a case-by-case basis.”

Police hailed the Hernandez decision, saying it protected their officers’ safety while allowing defense attorneys to still cross-examine witnesses. One defense attorney said the decision undermines a basic constitutional right and will lead to more prosecutors seeking to hide witness identities across the state.

“First and foremost, it’s the safety of the officer,” Nashua Police Chief Donald Conley said. “The stakes are very high. It’s a dangerous job.”

Conley, who worked as an undercover officer in Nashua for four years, said it’s vital for officers to assume a foreign identity at all times lest they reveal who they are and endanger the investigation and possibly their safety to those they’re trying to put behind bars.

“I was always concerned about someone finding out who I am and going after my wife and daughter, threatening them to get me to back off,” Conley said.

That safety is no laughing matter, Conley said. While Narcotics Intelligence Division detectives focus on Nashua drug cases, there’s no reason that what they find couldn’t lead to larger, and potentially more sophisticated and violent, organizations outside New Hampshire. Those are sometimes led by “some hardcore individuals who stand to lose years of their lives in prison.”

Rothstein, Hernandez’s attorney, argued there was no reason to stomp on Hernandez’s rights to confront his accusers.

The U.S. Constitution’s Sixth Amendment states in part that defendants have the right “to be confronted with the witnesses against him.” Part one, article 15 of the New Hampshire Constitution goes further and states that defendants have the right to “meet witnesses against him face to face.”

Hernandez was eventually found guilty by a jury on one of the two counts facing him and sentenced to six to 12 years in prison. In his brief to the Supreme Court, Rothstein asked the court to reverse the conviction and order a new trial. The court instead affirmed the Superior Court ruling.

Carl Olson, a Londonderry defense attorney, tried to make similar arguments before the Supreme Court in a 2007 drunk driving case out of Hudson. A Massachusetts woman, Carrie Perry, was arrested by a Hudson officer on April 29, 2007, and charged with DWI. She was convicted in Nashua District Court, fined $500 and her license was suspended for nine months.

But the arresting officer, James Connor, testified in that case while wearing a mask, again because he had since been transferred to undercover narcotics work.

Unfortunately for Perry and Olson, the attorney who handled Perry’s case at the district court didn’t object to the mask during the district court hearings and the Supreme Court decided that since the issue hadn’t been “preserved” at the trial court, it wouldn’t rule on it further, Olson said.

Olson said he hopes the appellate defenders office brings the case to a federal appeals courts because he believes it’s a travesty against what should be immutable rights.

“It’s a terrible decision,” Olson said. “First off, the New Hampshire Constitution contains the words that say ‘face to face.’ It doesn’t mean face to mask or face to burka or whatever.”

Some police chiefs said that interpretation of face-to-face confrontation is too literal. They point out that the officer is still in the courtroom and the defense has a chance to conduct a cross-examination.

“I really don’t think the defendant’s rights were diminished in any way,” Manchester Police Chief David Mara said. “Just generally speaking, the defendant got the right to cross-examine the witness, and that’s what they’re talking about when they talk about the right to confront witnesses.”

Hudson Police Chief Jason Lavoie agreed. He also said another concern with masked witnesses – juries being able to assess the witness’ demeanor – is a non-issue, as well.

“Unless a jury has been trained in body language, they really can’t assess with or without a mask,” Lavoie said. “I think the confrontation is still happening. The person is still taking the stand. I think the officer’s safety is paramount and that comes first.”

Olson said the state should come up with other solutions, namely, not assigning detectives to undercover work while they still have cases in which they may need to testify. And if the officer’s safety is that compelling an interest, try to amend the state’s constitution to see if residents agree. Shunting aside a defendant’s constitutional rights, he said, just undermines the document as a whole.

“If these so-called principles are just cast aside when it’s inconvenient to follow them, they’re not really principles. They’re just constitutional suggestions,” Olson said. “You know what, either you have principles or you don’t. Either face-to-face means something or forget that these principles mean something.”

And that puts the state on the proverbial slippery slope toward secret testimony becoming the rule instead of the exception, Olson said. The argument that an officer’s safety – or any other witness, for that matter – could be endangered can be made in dozens of cases in every court every day, he said, and he expects to see prosecutors ask judges to allow it more often now that the Supreme Court has established its test.

“You’re going to see it skyrocket,” Olson said. “You’re going to see the state asking for this all the time, I think. Eventually, it will be that the exception is the rule.”

That concern is also overstated, according to chiefs, and the requests for masked witnesses will only be made for undercover officers.

“I don’t think that’s a concern. I think it’s a unique situation,” Conley said. “I don’t think it’s a slippery slope whatsoever.”

Regardless, the tension between officer safety and a defendant’s right to confront his or her accusers isn’t settled yet, Olson said.

“I’m sure that this is not an issue that’s going to go away,” he said. “Whether it’s this case or another case, it’s something that will end up before the U.S. Supreme Court at some point.”

Joseph G. Cote can be reached at 594-6415 or jcote@nasuatelegraph.com.