Court filing
Information — United States v. Shibley (Dkt. 77, W.D. Wash. No. 2:20-cr-00174)
Filed October 1, 2021 in Shibley; one of 140 filings from this case.
Record facts
| Court | U.S. District Court for the Western District of Washington |
|---|---|
| Filed | 2021-10-01 |
U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 77 · 2021-10-01 · Docket on CourtListener
Full text
Honorable John Coughenour
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON, SEATTLE
UNITED STATES OF AMERICA, )
) No. CR20-174 JCC
Plaintiff,
)
) DEFENSE MOTION FOR A TRIAL
v.
) WITHOUT COVID-RELATED
) RESTRICTIONS
ERIC SHIBLEY,
)
)
Defendant.
)
_______________________________)
Motion
Defendant Eric Shibley, through undersigned counsel, moves for a trial free
of Covid-related restrictions. Specifically, he asks that mask-wearing in the
courtroom remain optional for trial participants and the public, alike, and that no
mask mandate apply for vaccinated persons. To further promote visual and
auditory clarity, he also asks for the removal of Plexiglass barriers in the
courtroom.
This motion is brought to protect due process and fair trial rights
guaranteed to Mr. Shibley by the Fifth and Sixth Amendments to the United States
Constitution.
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Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 77 Filed 10/01/21 Page 1 of 7
Introduction
As of this writing the mandate of General Order 04-20, reinforced by
General Order 13-21 issued on September 23, 2021, suggests ongoing concerns
with Covid 19 in situations involving gatherings of members of the public but also
vests discretion with individual trial judges about conduct within their respective
courtrooms. The defense is aware that this Court has conducted a jury trial since
the entry of the most recent General Order but is less certain about the constraints
it imposed on participants. The defense also appreciates the legitimacy of public
health concerns and that the situation is fluid and subject to change between now
and the currently scheduled trial date of November 15, 2021.
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Eric Shibley desires a visceral trial (in-person with other court participants
— i.e., parties, court personnel, witnesses, jurors — in the same room) but also a
fair trial with reasonable ability to freely communicate with and assist his counsel
during trial and the ability to enjoy all the due process protections traditionally
afforded criminal defendants. Both he and his undersigned counsel have been fully
vaccinated.
Current information from the Center for Disease Control states that persons who
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are fully vaccinated against COVID are highly protected against serious outcomes of
COVID-19, including severe disease, hospitalization, and death. The available evidence
suggests vaccines offer protection against known variants, including the Delta variant (B.
1.617.2), particularly against hospitalization and death. The Delta variant, currently the
predominant SARS-CoV-2 variant in the United States, is associated with increased
transmissibility. www.cdc.gov - 9/27/2021 update
2
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 77 Filed 10/01/21 Page 2 of 7
Any residual risks posed by an in-person trial should be balanced against Mr.
Shibley’s constitutional right to a fair and public trial.
Masks
The defense asks that all participants, including prospective jurors and court
security, be questioned as to their vaccination status. Anyone who has been fully
vaccinated should not be required to wear a mask.
Many people (undersigned counsel included) find face masks to be
uncomfortable, distracting, and an impediment to speaking clearly, particularly
over an extended time period. Face masks obscure facial expressions and make
evaluating demeanor and body language far more difficult. One study found that
the perceptions of persons wearing lower face coverings is distorted, such that
negative emotions of the mask wearer (i.e., anger or fear, which is reflected
primarily in the eyes) is much more apparent than positive emotions (i.e.,
happiness, humor, gratitude), which is reflected primarily by the mouth. Calbi M,
Langiulli N, Ferroni F, Montalti M, Kolesnikov A, Gallese V, Umiltà MA. The
consequences of COVID-19 on social interactions: an online study on face
covering. Sci Rep. 2021 Jan 28;11(1):2601. doi: 10.1038/s41598-021-81780-w.
PMID: 33510195; PMCID: PMC7844002. The masking implications for Mr.
Shibley, whose negative emotions would be perceived more readily that his
positive ones, would undercut his presumption of innocence.
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Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 77 Filed 10/01/21 Page 3 of 7
Until recently, the positive impact of mask requirements (great risk
reduction) vastly outweighed whatever inconvenience they caused. But now, with
the advent of wide-spread vaccination, that is no longer the case. The medical
consensus (the CDC) suggests that the vaccine is highly effective at both providing
individual protection and in making persons less likely to spread the virus to
others.
The caselaw on COVID-related mask requirements is sparse. United States v.
Tagliaferro, 2012 U.S. Dist. Lexis 62898 (S.D.N.Y. , March 30, 2021) rejected a
confrontation clause challenge to mask wearing requirements. But this challenge
apparently only concerned witnesses, who were allowed to testify not wearing a mask.
Tagliaferro did not address the problems created by the parties not being able to observe
the jurors’ facial expressions or the discomfort and distraction that wearing a mask may
engender.
Mask wearing requirements raise other problems. The parties often exercise
peremptory challenges based on demeanor. For example, if the defense notices that a
juror is looking askance at the defendant, that juror might well be peremptorily
challenged. But if the prospective juror is masked, the defense will miss that opportunity.
Defense counsel needs to be able to communicate with his client during trial.
Such communication is part and parcel of the right to effective assistance of counsel. But
if both counsel and the defendant are wearing a mask, whispering, the traditional means
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Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 77 Filed 10/01/21 Page 4 of 7
of communicating in court, becomes more onerous. Jurors look at defendants to gauge
their reactions to testimony. Perceptive trial advocates seek to gauge jurors’ reactions to
testimony and adjust their tactics accordingly. Wearing a mask hinders such observations
and potentially deprives a defendant from conveying his humanity or a demeanor
consistent with innocence and his attorney from being fully effective.
While it may be possible to conduct a trial with everyone wearing a mask,
this arrangement is far from optimal. The confrontation clause recognizes the
importance of face-to-face encounters. Through common sense and experience we
rely on people’s facial expressions as an important means of evaluating their
demeanor and conveying and receiving social cues.
Balancing public health concerns with due process fairness, Mr. Shibley
should be able to have an unmasked trial.
Plexiglas Partitions
As best as counsel can be determined there is little to no scientific evidence
that Plexiglas shields prevent COVID transmissions. See “Why Face Shields and
Plexiglass barriers don’[t] Block Coronavirus”, Forbes, October 23, 2020. But
they unquestionably interfere with and even distort sound transmission. Other trial
counsel have reported difficulty clearly hearing witnesses testifying behind a
Plexiglass partition barrier and undersigned counsel has experienced sound
muffling and distortion in court hearings with Plexiglass. In the absence of some
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Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 77 Filed 10/01/21 Page 5 of 7
credible scientific evidence to justify the Plexiglas partitions, they appear to be
little more than optics, designed to give the appearance of combatting the virus but
actually not accomplishing much. In the interests of clarity for all concerned, the
defense asks that all such partitions be removed.
Respectfully submitted this 1st day of October, 2021.
/s/ Michael Nance,. WSBA # 13933
Attorney for Eric Shibley
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Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 77 Filed 10/01/21 Page 6 of 7
Certificate of Service
I hereby certify that on the 1st day of October, 2021, I electronically filed the
foregoing with the clerk of the court using the CM/ECF system. Notice of this filing will
be sent electronically to counsel of record for other parties.
/s/ Michael Nance WSBA # 13933
email: michaelnancelaw@gmail.com
7
Michael Nance
Attorney at Law
P.O. Box 11276
Bainbridge Island, WA 98110
(206) 624-3211
Case 2:20-cr-00174-JCC Document 77 Filed 10/01/21 Page 7 of 7File and source
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