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Court: Witness COVID mask did not deny right to confront, question

Amy Robinson

The Michigan Court of Appeals has ruled that a defendant charged with murder was not denied a fair trial when a key prosecution witness wore a COVID-19 face mask while testifying.

Anthony Lamont-Dshawn Brown wanted to reverse convictions in Eaton County of first-degree murder and other offenses. He was sentenced to life in prison.

The trial took place in July 2021 during the COVID pandemic. The defense said the mask covered the mouth and nose of the witness and prevented attorneys, the judge and the jury from seeing the man’s facial expressions.

Defense attorney Joel Kershaw said that is especially important in cases that pit one witness’s credibility against another’s.

“Facial expressions can oftentimes let me know if it looks like there is something that the witness is trying to hide from me, if the witness is trying to be evasive,” he said. “Also, the jury is going to make some credibility determinations based on the facial expressions being made.”

The appeals court ruled there was no “clear or obvious error.” The decision also cited similar instances, such as allowing in-person witnesses in organized crime trials to testify wearing a disguise.

In a concurring opinion, Appeals Judge Noah Hood argued there was a violation of the U.S. Constitution’s confrontation clause, but the error did not change the result of the trial.

Eaton County Deputy Chief Assistant Prosecuting Attorney Adam Strong agreed that a witness wearing a face mask on the stand is not optimal, but the issue is whether the defendant was given adequate opportunity to confront the witness.

“And the wearing of a mask covering the bottom half of his face with the justification of COVID-19 did not infringe upon that in any kind of meaningful manner,” he said.

Strong said courts had to make decisions that sometimes had to balance competing interests to allow the legal system to continue operating during COVID.

“This was something that everyone had to deal with -- how can we still proceed through our cases and make sure that defendants aren’t sitting there awaiting trial for five years, but while also maintaining the safety and security of the people in the courtroom – including the defendant, the witnesses the jurors, the judge, the attorneys, everybody,” he said.

Kershaw, the defense lawyer, said no decision has been made on whether to the Michigan Supreme Court.

Rick Pluta is Senior Capitol Correspondent for the Michigan Public Radio Network. He has been covering Michigan’s Capitol, government, and politics since 1987. His journalism background includes stints with UPI, The Elizabeth (NJ) Daily Journal, The (Pontiac, MI) Oakland Press, and WJR. He is also a lifelong public radio listener.
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