A divided state appeals court Friday sided with a juvenile who objected to the use of Zoom technology to hold a hearing on allegations that he violated gun laws.
A panel of the 2nd District Court of Appeal, in a 2-1 decision, ordered a new hearing for the juvenile, identified by the initials T.H., in the Hillsborough County case. It is one of a series of disputes that have played out across the state about the use of remote hearings during the COVID-19 pandemic for adult criminal defendants and juveniles.
T.H. argued, in part, that the use of a Zoom hearing in October 2020 violated his constitutional right to confront witnesses. Friday’s decision stopped short of finding a constitutional violation, but it said a circuit judge did not follow proper procedures “in determining whether it was appropriate to abrogate T.H.’s due process right to confront witnesses.”
“We conclude, under the circumstances presented here, the trial court erred in ruling that the adjudicatory hearing would proceed via Zoom without allowing T.H. a hearing on his objection and without making a case-specific finding of necessity to limit confrontation rights,” said the 16-page majority opinion, written by Judge Darryl Casanueva and joined by Judge Morris Silberman.
The case stems from a February 2020 petition for delinquency that alleged T.H. committed two counts of carrying a concealed firearm, one count of resisting an officer without violence and two counts of a minor in possession of a firearm, according to Friday’s ruling.
Many in-person court proceedings were suspended across the state in 2020 because of the pandemic. A circuit judge held what is known as an adjudicatory hearing through Zoom in October 2020 and found T.H. delinquent on one count of carrying a concealed firearm.
The finding came after T.H. had objected to the use of a remote hearing, with the circuit judge determining “that the COVID-19 pandemic permitted the court to deny T.H.’s right to confront witnesses in person,” according to Friday’s ruling.
In an 11-page dissent, appeals-court Judge J. Andrew Atkinson drew a distinction between juveniles and adult criminal defendants. Atkinson wrote that the circuit judge was “permitted to make a categorical finding that necessity demanded that juveniles only be permitted to confront witnesses against them remotely through two-way audio-visual technology.”
“As the majority acknowledges, it has long been established that juveniles accused of crimes can be treated differently than adults,” Atkinson wrote. “A reasonable person might presume that a proceeding in which an accused is facing charges that he violated a criminal statute (i.e., committed a crime) for which he could be punished by the deprivation of his liberty would be considered a criminal proceeding, no matter the age of the accused. However, the people of Florida have spoken (through the state Constitution) on that matter, and they saw fit to authorize the Legislature to designate such proceedings as something other than criminal.”
Friday’s decision came after the 4th District Court of Appeal last summer rejected arguments that a juvenile’s constitutional rights were violated when witnesses were allowed to testify by Zoom in an attempted-robbery case in Palm Beach County.
But the majority in the T.H. case said the legal issues were different because the circuit judge in the Palm Beach County case followed proper procedures. Also, it said the hearing in the Palm Beach County case was held during an earlier stage of the pandemic, when it said courts were “effectively closed to the public, and in-person proceedings were rare.”
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