By Danae Snell
WOODLAND – The Coronavirus pandemic continues to disrupt the process in California courthouses and frustrate courtroom officials, in part because many witnesses are fearful of physically being present in the courthouse due to the possible spread of COVID-19.
That was on full display at Yolo County Superior Court last week.
Deputy Public Defender Stephen Betz requested the court’s permission, on behalf of his client Keith Whelan, to allow two of his witnesses to testify via Zoom because both are currently residing out of the state.
Deputy District Attorney Sara Abrate objected to his request.
The first witness is a social worker from New York who “had contact with the complaining witness in the case after the allegations began, which is why her testimony is relevant,” according to PD 
Betz.
Judge Paul Richardson opened the floor to DDA Abrate to see where she stands on this issue.
DDA Abrate noted, “The People are not prepared to agree to have any witnesses testify remotely absent motions and briefing.”
As the judge began to speak, the DDA added, “I don’t know why.” Before she finished her statement, the judge told the DDA to stop speaking.
However, the DDA continued to speak, stating, “I don’t know why this witness needs to testify via Zoom, there needs to be a reason.”
The judge said, “The only thing I would say is that there was a request for a remote testimony from the district attorney’s office in another case earlier in a case going to trial next week and the court turned down that suggestion.
“Part of the reason was for the jury to be able to measure the demeanor of the witness testifying here in open court in front of someone that is accused and that right to confrontation; the court respects that. I have done trials with remote testimonies and it has gone okay, but there are some problems with it,” said Judge Richardson.
“At this point if the People are objecting, then I will probably decline. I am not saying I wouldn’t allow it, but I would want to know the relevance. It is probably best to have the person here” the judge concluded.
However, instead of closing the floor, Judge Richardson allowed PD Betz to further explain the importance and relevance of his request.
PD Betz argued that there are different concerns for the People than there are for the defense regarding confrontation rights in the courtroom.
He then proceeded to inform the court about his second witness, Dr. William O’Donohue from the University of Nevada. Dr. O’Donohue is the Director of Victims of Crime Treatment Center and the Director of Psychological Services.
Dr. O’Donohue does not wish to travel during these current conditions—especially with his age being categorized in the “high risk for severe illness.”
Additionally, Dr. O’Donohue also stressed the concern that he is currently caring for his mentally delayed daughter and will not testify unless it is via Zoom.
Mr. Betz also informed the court, “To add an issue on top of that, on the first of September I received information from the People for the first time that they were going to be calling Dr. Carmichael in the area of child sexual abuse accommodation syndrome. And I did not receive any information prior to that.”
Dr. Blake Carmichael is a Licensed Therapist working with the UC Davis CAARE Center (Child Adolescent Abuse Resource Evaluation Diagnostic Treatment Center) and is considered an expert pertaining to his experience working with and treating children and adults who have been sexually assaulted.
“So that means that I am going to have to have Dr. O’Donohue testify about that as well so that is another reason for his testimony. If the court is prepared to exclude that testimony based on the late notice, then that may make things a bit easier. That is an issue,” PD Betz said.
“Again, the People will object to Dr. O’Donohue testifying remotely. The People were provided with an 80-page expert report from Dr. O’Donohue; this is a very serious case. Dr. O’Donohue’s testimony, based on the length of his report, would be vital to what seems to the defense’s case and the ability to cross-examine him via Zoom will not be the same as cross-examining him in the courtroom, especially based on what I believe the length of his testimony is going to be,” argued DDA Abrate.
Judge Richardson acknowledged that he understood Dr. O’Donohue’s position and fear during these times; however, he agreed with DDA Abrate.
“Dr. O’Donohue, the way in which he answers his questions and his demeanor, will be important to both sides and the one thing I would say is that it is more difficult to do the cross-examination and maybe even the direct examination given the length of his report,” noted Judge Richardson.
Attempting to soothe Betz’s concerns, the judge continued, “I would just say we will do everything possible to make it as accommodating to him given his age, we are socially distancing and we are all masking, all jurors, lawyers, and staff.”
PD Betz still had his issue at hand.
“That puts me in the position of needing to find another expert because he is not going to testify unless remotely or I need to continue the trial until he feels comfortable. Those are my options,” PD Betz informed the court.
“The problem is we don’t know when Dr. O’Donohue might feel comfortable being here or what things are going to look like in terms of comfort level this fall,” Judge Richardson added.
An unknown woman spoke out in court and frustratedly stressed her concerns, “We shouldn’t be doing trials, judge. If we can’t get our witnesses here, then we should not be forced to do trials right now. How is that fair?”
Judge Richardson understood the frustration, but his choice remained. Moreover, he did inform Betz to file a motion to put this issue on record officially so this can be decided at a later time.
This case will be back in the courtroom Sept. 14 with the judge’s final decision.
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