After a six-month suspension of jury trials in the state, a capital murder defendant whose trial is scheduled to be first up in Morgan County objected Tuesday to the constitutionality of his trial taking place in the midst of a pandemic.
Roger Dale Stevens, 68, is charged with killing his ex-wife two days after their divorce in 2015. In a motion filed Tuesday by his lawyers, he protests that the health risks associated with a jury trial and the restrictions necessary to protect those in the courtroom violate his constitutional rights.
In the motion to delay the scheduled Sept. 14 trial, defense attorneys Nick Heatherly and Ronald Smith acknowledge the unusual situation of resuming jury trials during a pandemic. “This Court is tasked with the balance of public safety against the accused’s core constitutional rights. It is this unprecedented position that the Court now finds itself in that creates enormous challenges for the Court and quite possibly an inherent conflict with Mr. Stevens’ constitutional rights.”
Morgan County District Attorney Scott Anderson on Tuesday said jury trials will create unique challenges, but he’s confident defendants’ constitutional rights can be observed even as the safety of those in the courtroom is protected.
The Alabama Supreme Court suspended all jury trials in the state beginning March 16 and, in a May 15 order, ruled they can resume Sept. 14.
"We plan to start Stevens' trial just as soon as we're able to under the Supreme Court order," Anderson said.
Stevens is charged with capital murder in the shooting and beating death of Kay Letson Stevens, 62, on Nov. 14, 2015. He allegedly chased her into the Corner Bakery and Eatery, which she co-owned, shot her, and beat her head against a concrete curb outside the bakery, which was then located at Somerville Road and Eighth Street Southeast.
Roger Stevens is in the Morgan County Jail without bond, where he has remained for the almost five years since his arrest after a standoff the day of the shooting.
Anderson said he was not surprised at the motion to continue the trial.
“Generally speaking, defendants are always in favor of delaying their trials because time does nothing but benefit them. Witnesses move. Witnesses die. Evidence is older, and has more potential to be misplaced or whatever,” Anderson said. “Stevens is interesting because he’s filed a motion for a fast and speedy trial and now wants it continued. He can’t have his cake and eat it too. Which one do you want? Pick which one you want.”
Roger Stevens’ lawyers did not return calls Tuesday, but in their motion they say it’s a choice their client should not have to make.
“Mr. Stevens shouldn’t have to choose between his right to a speedy trial and his other rights,” they assert in their motion. “That choice should be freely made by Mr. Stevens and not a decision imposed upon him due to COVID-19 restrictions and public safety mandates.”
Stevens’ lawyers note that the defendant is at an increased risk for COVID-19 complications due to his age.
According to the motion, Circuit Court Judge Jennifer Howell “mentioned that face shields would be provided to everyone as a substitute to the face masks,” facilitating communication in the courtroom and so jurors and counsel can better evaluate the demeanor of witnesses. Howell was not available Tuesday. Stevens’ lawyers cite Centers for Disease Control and Prevention guidance that face shields are not an effective substitute for masks.
If Stevens wears a mask to protect his safety, it will prejudice him because criminals often are depicted as wearing masks in the media, his lawyers argue. Both the mask and 6-foot distancing “could quite possibly dehumanize him in the minds of the jurors and reduce jury empathy,” according to the motion.
A requirement that jurors and witnesses wear masks and maintain social distance “will impede counsel’s ability to observe non-verbal cues during (jury selection) and testimony,” the lawyers argued.
Christopher Slobogin, a professor of criminal law at Vanderbilt University School of Law and director of its Criminal Justice Program, said a mask requirement — or a health issue necessitating a mask — could raise constitutional issues.
“With respect to confrontation of witnesses, the Supreme Court has emphasized the necessity of a ‘face-to-face confrontation,’ and that’s the language the court uses. So implicitly, maybe explicitly, you’d think there would be a need to ensure that the witness is being seen by the accused,” Slobogin said, but added he can see how prosecutors could argue the opposite. “The defendant is staring right at the witness. Just because the defendant can’t see the witness’s mouth doesn’t mean there isn’t confrontation.”
More problematic, he said, would be if witnesses insist on — or are required to — wear face coverings.
“I can see a court saying it’s a violation of the Constitution to have a witness behind a mask. Whether it’s true or not, there certainly is folk wisdom suggesting you need to see the entire demeanor of the individual. In fact there’s some empirical research suggesting that people pick up a lot of cues from a person’s demeanor,” he said.
Slobogin said using a face shield instead of a mask might alleviate the difficulty for jurors of evaluating demeanor, “but the question becomes whether it undermines credibility just because the person doesn’t look normal, perhaps even looks silly. If I’m the defense attorney I probably would not want my client in a shield because I want my client to come across as human and as credible as possible, and I’m worried the shield would detract from both.”
Stevens’ lawyers also submit that the ongoing pandemic will prevent their client from obtaining an impartial jury from a cross-section of the community. Because COVID-19 complications are most common among the elderly, minorities and people with underlying health conditions, those segments of the population are less likely to show up for jury duty, according to the motion.
Anderson said there are always challenges to obtaining a fair sampling of the community in the jury, and COVID-19 is not unique. It’s the job of the lawyers and the judge to ensure a fair cross-section of the community through the jury selection process. He analogized it to defense efforts to move trials to a different county due to media coverage in advance of a trial.
“The law’s clear that we’re not going to know whether or not we’re going to have that cross-section, or whether you’re going to have jurors that have knowledge of the case through publicity, until you get them there and find out,” he said. “We can’t just stand around and wait on what-ifs and maybes.”
Stevens’ lawyers, in a previous motion, successfully requested an expanded jury pool because pretrial publicity will make it harder to select unbiased jurors. The granting of this request, however, creates a logistical problem: How to safely maintain social distancing among the 300 potential jurors.
Anderson said the court is in the process of figuring this out.
“We’re going to have to have a large area to conduct juror qualifications. Those qualifications are going to have to be done in stages, where in the past we’ve done the entire jury pool at once. My suggestion at one point was to do it at the Princess Theatre, to have the court enter an order designating the Princess Theatre as an annex to the courthouse,” he said.
He said all aspects of a jury trial are required to be in the courthouse, but the judge can effectively expand the courthouse by creating an annex.
Another complication will involve the 12-person jury, which normally is seated in a jury box that does not allow for social distancing.
“There’s been some talk about maybe cordoning off half of the courtroom to make that the jury box, or possibly distancing six jurors in the normal jury box, and then bringing chairs out in front of the jury box to distance them that way,” he said.
Anderson said maintaining public safety during jury trials will be complicated, but not impossible.
“It can be done, it’s just going to take a lot of planning and a lot more time and effort to get things done,” he said.
What is not an option, he said, is indefinitely delaying criminal trials.
“The old saying is ‘justice delayed is justice denied.’ The system has to go forward,” Anderson said. “It’s gone forward during very troubling times in this country. It hasn’t gone forward through anything like this, but this is not something we can’t overcome.”