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Saturday, February 2, 2013

Justice is not only blind - it can wear a wig and mustache too

By MICHELLE PEIRANO 
Cronkite News Service

WASHINGTON – A federal appeals court ruled Wednesday that a drug defendant’s right to confront his accuser was not violated when a witness testified against him in a wig and fake handlebar mustache.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said the disguise was necessary to protect the safety of the witness, who was involved in an undercover investigation of the Sinaloa drug cartel, and it did not affect the outcome of the trial.
In doing so, it upheld Jorge de Jesus-Casteneda’s 2011 conviction in Arizona for possession of drugs with intent to distribute.

De Jesus-Casteneda’s attorney said Wednesday that she would ask for a review of the ruling, which she said could allow for testimony from anyone with interest in concealing their identities, whether merited or not.

“Anytime a witness testifies against someone in a criminal case, there is a potential for danger,” Celia Rumann said. “This could open a door for the federal court to use this in any way that they want.”

She said she disagreed with several aspects of the decision, including the statement that the disguise did not interfere with the jury’s ability to read the witness’s demeanor.

The witness had been an undercover agent making a drug and weapons deal at a warehouse where de Jesus-Casteneda delivered 10 pounds of methamphetamine.
 
At trial, the government asked that the witness be allowed to wear a wig, mustache and sunglasses on the stand to protect his identity. The trial court let him testify in a wig and false mustache, but no sunglasses.

The lower court judge called the disguise a “very small impingement” on the ability of jurors to judge the witness’s credibility when weighed against the danger of testifying without a disguise, according to the circuit court’s opinion.

The appellate panel agreed.

“Just as an audience assesses a character’s vulnerability and emotions by watching the actor’s demeanor, so too does a jury assess a witness’s credibility and emotions by examining the witness’s demeanor and eyes,” Circuit Judge Carlos Bea wrote in the opinion.

The court, pointing to other cases that let child sex-abuse victims testify via closed-circuit television so they do not have to physically face their abusers, said the Sixth Amendment‘s “face-to-face confrontation requirement is not absolute.”

But de Jesus-Casteneda argued in district court and on appeal that the disguise did violate that right to “be confronted with the witnesses against him.”

Rumann said that a disguise can also affect how a jury perceives a witness beyond just their mannerisms and demeanor: The simple fact that the witness needs to be disguised makes the testimony stand out to jurors.

“They think he is important because he needs to be disguised,” she said.

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