Well, this seems like a gross miscarriage of justice, but here we are.
Five years ago in Oregon, Pedro Sanchez was convicted in a hammer attack on Heather Fawcett, but it was a 10-2 jury verdict. So, because of the Supreme Court case saying that unanimous jury verdicts are required in serious criminal cases, the Oregon Supreme Court overturned the conviction and a retrial was scheduled. All of which checks out.
But of course, we are also living through a global pandemic. And that’s thrown a wrench into just about everything, including the criminal justice system.
Fawcett wants to wear a face mask while testifying, because you know, COVID-19 is RAGING across the country and she lives with her elderly parents who aren’t in good health. But Sanchez’s attorney argued that his right to confront his accuser required Fawcett testify without a mask, nevermind that she’d previously testified against him sans mask in the before times. Judge Jennifer Chapman ordered Fawcett to testify with a not-super-effective-but-better-than-nothing-I-guess face shield. Fawcett was not okay with this option and asked about using a mask with a clear window over her mouth. However, the judge responded that though this option had been ordered, they would not arrive in time for the trial.
Since the only other witnesses to the alleged attack, Fawcett’s then-boyfriend and his brother, have since passed, the case against Sanchez was dismissed.
It isn’t a normative statement on the guilt or innocence of Sanchez to say this seems like a wild result. And, unsurprisingly, Fawcett feels the same way, as she told the Oregonian:
“It’s the second time I’m going through this trial. And now you’re gonna tell me I have to expose my friends and my family and people that I care about and myself to this virus?”
“I don’t understand why I have to be put at risk and why I have to choose putting myself at risk in this way in order to get justice. [And] choose being able to testify on my own behalf or letting him get off and have the other charges dropped just because I want to war a mask to protect myself.”
And victim’s rights advocates are concerned about the larger implications for others around the state. Rosemary Brewer, executive director of the Oregon Crime Victims Law Center, said, “I’m concerned that courts are not granting victims their rights with the same priority that they are for defendants due to COVID-19.”
With the slow vaccine rollout and new strains of COVID popping up around the globe, it doesn’t look like masks are going away anytime soon. There has to be a better answer than a dichotomy between COVID safety or justice.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).