Well, that seems like a gross miscarriage of justice, but here we are.
Five years ago, Pedro Sanchez was convicted in Oregon in a hammer attack on Heather Fawcett, but it was a 10-2 jury verdict. Since the Supreme Court case states that serious criminal cases require unanimous judgments from the jury, the Oregon Supreme Court overturned the conviction and a retrial has been scheduled. All of that checks out.
Of course we are also experiencing a global pandemic. And that’s a key to almost everything, including criminal justice.
Fawcett wants to wear a face mask while she testifies because COVID-19 is raging across the country and she lives with her elderly parents who are not in good health. But Sanchez’s attorney argued that his right to confront his accuser required Fawcett to testify without a mask, regardless of the fact that she had previously testified against him without a mask. Judge Jennifer Chapman ordered Fawcett to testify with a not particularly effective, but better than nothing, I think face mask. Fawcett disagreed with this option and asked for a mask with a clear window over the mouth. However, the judge replied that although this option had been ordered, it would not arrive in time for the trial.
Since the only other witnesses to the alleged attack, Fawcett’s boyfriend at the time and his brother, have since passed away, the case against Sanchez was dismissed.
It is not a normative statement of Sanchez’s guilt or innocence to say that this seems like a wild result. And unsurprisingly, Fawcett thinks exactly as she told the Oregonian:
“It’s the second time I’ve gone through this process. And now are you going to tell me to expose my friends, family and the people who matter to me to this virus? “
“I don’t understand why I need to be endangered and why I need to choose to put myself at risk this way in order to get justice. [And] Choose to testify on my own behalf or let him get off and drop the other charges just because I want to wear a mask to protect myself. “
And victim rights advocates are concerned about the greater impact on others across the state. Rosemary Brewer, executive director of the Oregon Crime Victims Law Center, said, “I am concerned that courts are not giving victims the same priority as defendants because of COVID-19.”
With the slow rollout of vaccines and new strains of COVID popping up around the globe, it doesn’t look like masks will go away anytime soon. There has to be a better answer than a dichotomy between COVID security or justice.
Kathryn Rubino is 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 tips, questions, or comments and follow her on Twitter (@ Kathryn1).