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Saturday, May 28, 2011

Masked detective: Superhero or constitutional villian?

CONCORD – It’s hard to defend a case when the other side has a masked witness on the stand.

That’s what William Walker, of Nashua, was up against when a Nashua Police detective was allowed to testify in disguise during a sexual assault trial four years ago, said his lawyer, Sven Wiberg.

Now, Walker is running out of legal options after the state Supreme Court upheld a lower court decision that allowed the detective to testify at the trial while wearing a ski mask.

It isn’t the first time local detectives, mostly when they have to testify in old cases after moving into undercover drug investigations, have asked judges to allow them to testify while disguised. Nor is it the first time the appeals made their way to the Supreme Court.

Police argue the measure is necessary to protect the officers and investigations. Defense lawyers say it’s a flagrant violation of a defendant’s constitutional rights.

“The defendant’s Sixth Amendment right to confrontation is more important than the speculative chance of uncovering that someone’s undercover,” said Wiberg, a Portsmouth defense attorney. “You just don’t see it.”

The high court has only recently taken up the issue, in another Nashua case, and it still hasn’t issued an ironclad opinion on the constitutionality of police testifying without showing their face – at least, not ironclad enough for everyone.

Walker, formerly of Sachse, Texas, was charged in 2007 with 31 felony sexual assault charges alleging that he had sex with a young woman in Nashua from 2003-05. A Hillsborough County Superior Court jury acquitted Walker on all but one of the charges, and he received a two- to seven-year prison sentence.

Walker appealed the conviction, arguing the lower court erred by allowing the detective who investigated the case – but was later transferred and working as an undercover narcotics detective – to testify while wearing a balaclava.

On March 21, the court upheld the conviction because the trial court found that the mask covered “most of the witness’s mouth, but allowed the jury to see most of his face. The court further found that the jury could evaluate the witness’s credibility, hear his tone of voice and see his movements,” according to the decision.

Later, the court amended its decision and said the mask covered all of the detective’s mouth, but still upheld the conviction.

Wiberg argues that whatever the lower court ruled about the mask, it was wrong because the mask covered the detective’s entire head, leaving only his eyes and a piece of brow exposed.

“It’s a dramatic technique,” Wiberg said. “We’re fighting the fact that this guy testifying in a mask is some kind of superhero, some kind of masked avenger. The jury couldn’t judge.

“I mean, he could have been smirking behind the mask. You couldn’t tell.”

In 2009, the court upheld the conviction of Jose Hernandez, a Nashua man accused of molesting a 12-year-old girl in September 2007. It ruled that the trial court erred by allowing the detective – the same detective as in the Walker case, in fact – to wear a mask, but said it was a “harmless error” because of a mountain of other evidence that pointed to Hernandez’s guilt.

But it also established a test that trial courts should use to balance a defendant’s rights with a witness’ safety.

The balance, according to the Hernandez decision, tells trial judges that when considering whether to allow a witness 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’s testimony: their physical presence, their oath, a chance for cross-examination, and the court and defendant’s ability to observe their demeanor.

Roger Chadwick, now a defense attorney, was the prosecutor at Walker’s trial while working for the Hillsborough County Attorney’s Office. He said his 10 years as a prosecutor have given him a better appreciation of the concerns undercover officers have and said the masks should be allowed in certain cases.

“There is a very fine line, and it really depends on the type of mask that is worn,” he said. “We absolutely have to be able to look at someone and be able to judge them, and there’s no better way to do that than to look them in the eye.”

Further, Chadwick said far from coming off as some sort of masked avenger, he thinks masked police witnesses create more difficulties for the prosecution than the defense. At least some jurors are sure to be suspicious, he said.

“I think it’s one of those things that cuts both ways,” Chadwick said. “I’m not so sure jurors appreciate it. I don’t think it necessarily bolsters the state’s case in any way.

“I think it leads to a lot of arguments in the defense’s favor; how troubling to have someone on with a mask.”

The Hernandez case was the first one to put the tension between police officials’ desire to keep their officers safe while fighting crime and defendants’ right to confront their accusers squarely before the state’s highest court. That

tension seems destined to continue to play out in the state courts because Walker has always and continues to declare his innocence, Wiberg said.

He has filed another motion asking the court to reconsider the latest ruling and to find out whether the justices looked at the mask and a picture of the detective wearing the mask. Wiberg said he looked at the exhibits after the decision and it appeared they hadn’t been opened, according to his motion.

Meanwhile, Walker reported to jail last weekend to begin his sentence. He had been out on bail while the appeals were heard.

Wiberg said it’s likely he’ll serve the maximum term because sexual offender programs and the parole board often require inmates to admit to and take responsibility for their crimes.

“If he continues to maintain his innocence, he’ll probably serve seven years,” Wiberg said.

Joseph G. Cote can be reached at 594-6415 or