Covid Justice: Florida Court Rules Zoom Hearings Don’t Violate Defendants’ Constitutional Rights

The decision by a three-judge panel of the 3rd District Court of Appeal came after a series of orders by the Florida Supreme Court that for months have led to court proceedings being held remotely across the state to try to prevent the spread of the disease.

Defendant Jermaine Clarington, who was on probation after serving about 25 years in prison on a first-degree murder conviction, was accused June 9 of violating his probation in Miami-Dade County, according to Wednesday’s opinion. He was scheduled for a violation hearing on Oct. 16 — a hearing that could lead to him going back to prison on a life sentence — but challenged the remote proceeding.

In part, Clarington’s attorney contended that a Zoom hearing would violate his due-process rights and what is known as the U.S. Constitution’s “confrontation clause,” which generally guarantees the rights of criminal defendants to confront witnesses and dispute testimony.

The appeals court, however, drew a distinction between probation-violation hearings and criminal trials and pointed to the Florida Supreme Court’s orders aimed at preventing the spread of COVID-19.

“In assessing whether the proceeding below (in the lower court) satisfies constitutional precepts of due process, two matters are worthy of note: First, the proceeding at issue is a violation of probation hearing and a probationer is not afforded the same panoply of rights afforded an accused in a criminal prosecution,” said the 28-page main opinion, written by Chief Judge Kevin Emas and joined fully by Judge Eric Hendon. “Second, the proceeding arises in the midst of a global pandemic which has spawned a public health emergency in Miami-Dade County and (to varying extents) across the entire state. The Florida Supreme Court’s administrative orders are crafted in an effort to strike the proper balance between the competing interests of ensuring the health and safety of all those entering the courthouse; expeditiously and properly adjudicating criminal cases consistent with our obligation as a branch, especially those cases in which the accused remains in custody; and preserving those fundamental due process rights afforded to an accused.”

As a sign of the interest in the issue, the National Association of Criminal Defense Lawyers, the Florida Association of Criminal Defense Lawyers and the Florida Public Defender Association filed a joint friend-of-the-court brief. The opinion said Clarington, his attorney Daniel Tibbitt and the groups made “substantial and compelling arguments” in opposing remote probation-violation hearings.

“We note that, under ordinary circumstances, a probationer would be physically present in the courtroom, together with all other participants, during a probation violation hearing,” Emas wrote.

But Emas wrote that the remote proceeding proposed in the case took into account the “competing interests, balancing the defendant’s constitutional rights and the responsibility of the judicial system to hear, adjudicate and dispose of criminal matters and conduct criminal proceedings, through the application of temporary procedures needed to ensure the health and safety of those participating.”

The court did not rule on an argument raised by Clarington that a remote hearing would affect his right to consult with his attorney and have effective assistance of counsel. The opinion said the claim was “too speculative at this point to resolve.”

Judge Monica Gordo agreed with the result of the main opinion but did not sign on to it.

Clarington’s probation-violation hearing was delayed because of the appeal but has been rescheduled for Monday. The opinion said he was sentenced to life in prison in 1992 for a murder he committed at age 15.

But he was placed on probation in early 2018 under a new law related to sentences in crimes committed by juveniles. The opinion said Clarington, now 46, was accused in June of violating probation by committing three crimes, leaving the county where he lives without the consent of his probation officer and failing to report monthly to the probation officer.

The opinion did not detail the nature of the alleged crimes. Clarington is being held in the Miami-Dade County jail.

–Jim Saunders, News Service of Florida