Law Talk With Douglas M. Schneider, Esq.

Religion In The Courtroom

Here is a truly tricky religious freedom issue.  What do you do with a witness who, because of religious beliefs, insists on wearing something that covers her entire body and face other than the eyes.  This is most often seen with Muslim women wearing what is called a "niqab."  On the one hand, there are constitutional protections guaranteeing a criminal defendant a right to confront his accuser, not to mention judicial rules, based on common sense, that insists that the identity of a witness be revealed and that judges and juries are able to assess credibility through things such as facial expressions.  On the other hand, why should a Muslim woman be required to violate her religion in order to participate in our legal system, especially if they are a party to a lawsuit.

As reported by CNN, Michigan has passed a rule giving judges the discretion to force a witness to remove such a head/face covering.  As stated in the CNN article:

The order allows courts "reasonable control over the appearance of parties and witnesses" so as to "ensure that the demeanor of such persons may be observed and assessed by the fact-finder and ensure the accurate identification of such person."

As a lawyer, especially as a criminal defense attorney, I support both the rule and the reason for the rule.  In our system, it is essential that I am able to confirm the identity of the witness.  Indeed, it is constitutionally mandated that a criminally accused defendant have the right to confront a witness.  Concealment of the identity of a witness is rare, and only available where the confidentiality of the witness is essential, such as with certain undercover agents in ongoing investigations.  Just as important, whether in a civil or criminal lawsuit, the parties, judges and juries, have a right to assess the credibility of the witness.  To know whether a witness is telling the truth or lying is often revealed in facial expressions.  Are they smiling, angry, nervous?  This is all hidden by the niqab.

On the other hand there is the issue of religious freedom.  A rule requiring the removal of a niqab could have the affect of limiting the access of Muslim women to our justice system.  It does not take much to imagine a Muslim victim of a rape who does not press charges because to do so would require her to eventually go to court and remove her naqib.  A Muslim woman has as much right to access our court system as anyone else.  That much is a no-brainer.

This is a tough pickle to resolve.  One reasonable accommodation, requested by the Muslim witness was for a female judge.  At first glance, this seems like a reasonable request, but any further inquest shows this to be an unworkable request.  It would be sufficient just for the purpose of confirming the identity of the witness, but it does nothing for the ability of the lawyer and jury to evaluate the credibility of the witness.  For that, all the lawyers, parties, judges, juries and audience would have to be female.  This is obviously not an option.

This case represents two extremes, neither of which are attractive.  One is to allow people to testify completely covered and gain an advantage that other parties and witnesses don't have.  The other is to limit the access to our system of justice based on one's religious beliefs.  Equally unacceptable.  However, if forced to pick between these two poles, I would have to side with constitutional and judicial equity over religious freedom.  In tough cases like this, religious belief has to take its place behind constitutional mandate and judicial fairness.

That being said, the current options represent a false choice, and legislatures and the courts should continue to work on coming up with a solution that protects both the integrity of our legal system as well as the religious freedom of our witnesses and litigants.  Until that compromise is worked out, rules like this should be narrowly construed so as to avoid undue impact on religious freedom.

Did Texas Execute An Innocent Man?

And if so, is it murder?  Many people know I am a fierce opponent of the Death Penalty.  Everyone's greatest fear should be that an innocent person gets executed and it should come as no surprise that it was most likely to happen in Texas.  I am fairly confident that this is not the only story about an innocent person being wrongly executed by a state (state sponsored murdered), but I don't know that we have ever had such strong evidence.

Expert Hits Arson Finding in Case that Led to Defendant’s Execution

Posted 9 hours, 19 minutes ago
By Debra Cassens Weiss

A nationally known expert has concluded that a fire was not arson, a finding that contradicted trial testimony that led to the conviction and execution of a Texas man.

The expert, Craig Beyler, reviewed the case of Cameron Todd Willingham for the Texas Forensic Science Commission, created to investigate allegations of forensic mistakes, the Chicago Tribune reports. The newspaper obtained a copy of his report.

Willingham was convicted of murder for the deaths of his three children who perished in the fire. Beyler is one of nine top fire scientists who have reviewed the case and found that the original investigators relied on outdated theories and folklore, the story says.

Beyler wrote that the state fire marshal investigating the case "seems to be wholly without any realistic understanding of fires and how fire injuries are created.”

Kicked Out For The Good OF The Client

I did a mediation on Tuesday for one of my civil clients.  No need to go into the details other than to say that it was an "interesting" mediation.  Opposing counsel was a screamer and a thrower of hyperbole and insults, she also was pushing her client in an unrealistic direction, seeking monies that he was not entitled to and had little chance to get.

We had an excellent mediator and he quickly grasped that if a fair resolution was going to be reached, he was going to have to separate the client from the lawyer.  Thus, after five hours of mediation, and opposing counsel's latest outburst, he asked us to leave the room.  Less than an hour later, the parties, without the lawyers in the room, reached what I thought to be a fair resolution. 

                                                              *             *                    *

I have been thinking a lot about this the last two days.  I like to joke about getting kicked out of the mediation, but after the jokes, there is an important lesson here.  This dispute started with the client, but it was pushed by the lawyer.  Once the lawyers got out of the room, the principles worked it out and then hugged goodbye.  Left alone, they had peace.  With the support of their hired guns, they had "war."

This had resonance with me.  Without the lawyers, these clients just wanted a fair resolution and to continue with their lives.  I had in my mind what I thought was a fair resolution, and I think it was the same as both the parties.  But somewhere along the line, and before I got involved, this became personal for opposing counsel.  That is why working with an experienced mediator was so important.  He recognized that the only chance for the case to avoid going to trial was through mediation, and the only way that the case was going to be mediated was if the mediation was focused on the clients, not the lawyers.

                                                               *                *              *                   

As the hired gun, I consider this case a win.  My client ended up paying exactly what he owed, and what he offered months ago.  Her client got over $100,000 less than what his lawyer had been demanding.  This is the point at the end of the day:  I consider it a win, and she likely considers it a loss.  We have our own issues, our own agendas and our own egos.  Meanwhile, both our clients walked out happy, content with the resolution and calling themselves friends again.