This is another classic Justice Wiley opinion, which means that it's (1) short (e.g., eight pages), with (2) tons of clippy, short sentences. A distinctive style.
Sometimes that works. But sometimes, it really doesn't engage at all on the merits, or (potentially) give the parties (or future tribunals) a reasoned basis for coming out the way it does.
This is one of those latter occasions, IMHO.
It's another one of those "You violated my Confrontation Clause rights because you made everyone wear a mask during a global pandemic" cases. It comes out the same way that nearly all of them -- and all of them in California -- does; namely, the argument is rejected. For understandable reasons, and ones that Justice Wiley articulates in his inimitable style. (For example: "A mask covering the nose and mouth undeniably impairs jurors’ ability to see a witness’s face to a degree. Likewise it is undeniable that judges must not allow a jury trial to spread a deadly contagion.")
But sometimes, a decision to be concise is also a decision to give incredibly insufficient shift to complex -- and potentially meritorious -- arguments on the other side.
This is one of those occasions.
I've written about this briefly previously, about one of the other California criminal face mask Confrontation Clause opinions. The best argument, in my view, is that while it's totally fine to compel witnesses to wear face masks during COVID given the risks of transmission, there's very little, if any, argument as to why those face masks shouldn't be transparent. Such masks undoubtedly exist, and have existed for some time. Using those masks would solve the problem; that way, the Confrontation Clause would be satisfied -- as well as its underlying (and important) purpose (e.g., allowing the jury to more accurately judge credibility, including but not limited to helping to ensure that innocent people are not sentenced to prison) -- while simultaneously preventing transmission of a potentially deadly disease.
In short, it's a simple, effective solution to the problem.
The defendant and his counsel raise this precise point in the present case. And here's the entirety of what Justice Wiley has to say about it:
"Edwards says the trial court instead could have ordered 'clear masks' or use of 'a face shield with a cloth drape along the bottom.' Edwards offered no evidence an objective authority appraised these alternatives to be effective in combatting the disease’s spread."
With respect: this is an incredibly insufficient answer to the argument.
Let's just take the "clear mask" part. There's zero evidence -- or even intuition -- that clear masks are any less effective than opaque masks, much less that they're any less effective than the crappy, loose fitting cloth masks that trial courts routinely allow people to wear. And since when has the standard been that you're required to establish evidence from an "objective authority" (e.g., a government official) before something that's facially obvious gets accepted as true? Moreover, even if that's the standard (and it's not), there's ample evidence that such face masks are equally effective; indeed, are much more effective than tons of the existing masks on the market (here's an example of a particularly good one, I suspect).
Dispensing with this argument with the single, wholly inadequate sentence (IMHO) of Justice Wiley's opinion gives neither that legal contention nor the defendant (and his lawyer) the respect and reasoned attention they deserve.
Which sometimes happens when you're way too much in a rush to dispense with arguments in a concise and ostensibly efficient fashion.
Plus, I gotta say, there's also a sentiment underlying the opinion that's (1) totally understandable, but (2) at some level, profoundly troubling.
I understand that at stake is a global pandemic that's killed and seriously injured a ton of people. Indeed, I'm extraordinarily sympathetic with that view. Truly.
But Justice Wiley's opinion not only recites (powerfully) that reality, but also quotes Jefferson to argue for its import. Here's the part of the opinion I'm talking about, in which Justice Wiley writes:
"A mask covering the nose and mouth undeniably impairs jurors’ ability to see a witness’s face to a degree. Likewise it is undeniable that judges must not allow a jury trial to spread a deadly contagion. The words of Thomas Jefferson bear weight. “A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.” (quoted in Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials (5th ed. 2006) p. 66.)"
With respect: That sentiment doesn't belong in a judicial opinion. Not this one, and not any one.
We're talking about the Confrontation Clause. A constitutional requirement. Part of the Constitution. It's not optional. It doesn't just apply in peacetime. It doesn't get dispensed with in a pandemic. It's written in the Constitution precisely because we think it's a critical liberty, and precisely because we're worried that, in a crisis, policymakers might be inclined to dispense with it. It's not just "written law". It's the foundation of American democracy. It's what and who we are. Period.
Maybe -- and even then, I'm only saying maybe -- Jefferson might be right if literally the existence of our Republic was at stake and that only the violation of a particular liberty could save it. But that's very much not the case here; COVID kills people, but in no universe does it end American democracy. Ditto for wearing a transparent (as opposed to opaque) mask. Indeed, the real threat to liberty -- borne out in an ample series of examples throughout history -- is that, in times of crisis, both politicians and even some judges are willing to sometimes dispense with the Constitution (or ignore this "written law") in the service of an ostensibly greater good. (See, e.g., Koramatsu, Ex Parte Milligan, etc.).
I get that Justice Wiley says later in the opinion that the "written law" here isn't violated in any event. Perhaps reasonable minds can disagree on that point. But the argument that, even if it is, we can ignore the Constitution in the present case in the service of a greater good just very much doesn't work for me.
In the end, some arguments deserve actual deep thinking, instead of rapid-fire rejection. This is one of those arguments.
