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Victim may testify via Internet in capital murder trial

By Jessica Priest
July 18, 2013 at 2:18 a.m.
Updated July 19, 2013 at 2:19 a.m.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

A 2011 Skype Case

A witness first testified via Skype in Texas during the Montgomery County capital murder trial of Luis Enrique Rivera.

The witness was one of several crime scene investigators, who dusted the victim's sport utility vehicle for fingerprints. He proved the evidence's chain of custody and could not attend the trial because he was deployed to Iraq.

Then, the witness, jurors, attorneys and the judge had small monitors. The witness had just one overall vantage point of the courtroom though, said Jason Larman, a Montgomery County assistant district attorney.

Larman did not know whether his office would use Skype if the witness was more important to the state's case.

"I don't feel like this is a blanket opportunity to not bother to bring witnesses to court," he said.

Rivera's attorney, Jerald D. Crow, of Conroe, wrote a slew of objections on a sheet of paper that he reiterated each day "to create a smoke screen."

He said the witness' testimony lagged every few seconds.

"There probably should be some way to preserve the video of the Skype testimony, so they can be viewed on appeal," Crow said.

Rivera, 34, was found guilty and is serving a life sentence without parole. He appealed the decision unsuccessfully to the Ninth Court of Appeals in Beaumont in May 2011. The Texas Court of Criminal Appeals also refused to hear his case.

How it works

• Oregon law enforcement confirms Allaceia Marie Stephney's identity and serves her the Victoria trial subpoena.

• Witness shows her photo identification.

• Oregon court personnel confirm witness' identity and that audio/video are operating.

• The presiding judge will swear in the witness.

Whether a key witness in a capital murder trial can describe for jurors how the father of her child was gunned down in April 2012 - sooner rather than later - hinges on Internet connectivity.

Allaceia Marie Stephney cannot testify in person about the death of Jerry James III, who officials say the defendants, Dedrick Roy Bonner, 19, and Donnell Deshaun Dilworth, 23, shot in the head in the 100 block of Regency Avenue on April 24, 2012.

That's because she didn't emerge from the incident unscathed either.

Stephney is receiving treatment in Oregon for a "significant tibia fracture resulting from a gunshot wound."

Her doctors said she cannot fly for another three to six months because her leg is hooked up to pins and wires extending from a halo-like frame, according to court documents.

So, Criminal District Attorney Stephen Tyler decided to bring the courthouse to her.

He'll do that by setting up a two-way audio and video feed - a first for Victoria County courtrooms.

"These guys have already been in jail for a year," Tyler said. "I think this better safeguards the due process rights of the defendants."

Defense attorneys are concerned that this system could potentially violate their clients' Sixth Amendment right to face their accuser.

The parties will test it at 1:30 p.m. Friday. If a judge agrees the devices are run fairly, the trial could start Aug. 5.

Tyler recognizes the system is risky.

If the system malfunctioned and attorneys - Lee Lewis and Jerry Clark, representing Dilworth and Bonner, respectively - did not get an equal opportunity to cross-examine Stephney, a judge may instruct the jury to disregard that line of questioning.

"If the disconnection was my fault, and I did it on purpose, then it would be a mistrial, and I would be barred from trying again, or double jeopardy," Tyler added. "I'm confident that won't happen though."

Lewis worries Stephney will not face perjury charges in Victoria County if she lies under oath remotely in Oregon.

"Any crime that is in our Texas Penal Code, every single crime requires that you're in the jurisdiction where you are being tried," Lewis said.

Texas Rules of Evidence 603 Article 13.03 establishes perjury can be prosecuted either in the county where committed or in the county where the false statement is used or attempted to be used.

"Not only that, I believe it has been decided by a court before. There's no question in my mind that we would be able to charge her with perjury. Although Oregon could, they probably would not," Tyler said.

Lewis will object to the two-way audio feed, so it can be discussed on appeal should Dilworth be found guilty, he said.

This method challenges the jurors' ability to decide how much weight to give a witness' testimony, Clark said.

A former prosecutor, Clark understands technology glitches happen.

"This is throwing a whole lot more bells and whistles out there," he said.

Lewis wants to clear his client's name as quickly as possible.

"Obviously, we will respect whatever decision is made," Lewis said.



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