In State v. Bragg, the WA Court of Appeals held that the trial court violated Mr. Bragg’s
right to confer with his attorney by requiring Bragg to participate in all nontrial
hearings via Webex while his counsel appeared in the courtroom.

BACKGROUND FACTS

Mr. Bragg allegedly fired a gun at sheriff’s deputies during a high-speed car chase. He was apprehended. The State charged him with three counts of Assault in the First Degree, Drive-By Shooting, Attempting to Elude, and Fiream Offenses. The trial court set Bragg’s bail at $750,000, which he was unable to pay.

Before trial, the court granted multiple continuances requested by Bragg and the State. For all pretrial proceedings, Bragg appeared on video via Webex from jail, while his counsel and the State appeared in person before the trial judge. Multiple times, Bragg expressed frustration with the pretrial proceedings and distrust of his counsel. At a hearing on December 29, 2021, defense counsel tried to withdraw due to allegedly irreconcilable conflicts. The court denied counsel’s motion to withdraw.

The four-day jury trial began January 3, 2021. Bragg appeared in person for trial. After the State rested, Bragg did not call any witnesses. The jury then found Bragg guilty of numerous counts. The court sentenced Bragg to 648 months of prison. Again, Bragg appeared at sentencing via Webex.

On appeal, Bragg argues that at least 8 court hearings were critical stage proceedings. Consequently, the court violated his Sixth Amendment rights because he was unable to privately consult with his attorney during those hearings.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that a criminal defendant is entitled to the assistance of counsel at “critical stages” in the litigation. A “critical stage” is one “‘in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or in which the outcome of the case is otherwise substantially affected.

Furthermore, the constitutional right to the assistance of counsel carries with it a reasonable time for consultation and preparation. This includes the opportunity for a private and continual discussions between the defendant and his attorney during the trial. The ability for attorneys and clients to consult privately need not be seamless, but it must be meaningful.

“Like the right to counsel in general, whether the court violated the defendant’s constitutional right to privately confer with his attorney is a very facts-specific inquiry.” ~WA Court of Appeals.

The Court of Appeals also pointed out that in February 2020, our governor declared a state of emergency due to the COVID-19 Pandemic. It discussed how the WA Supreme Court authorized criminal defendants to appear via video.

Nevertheless, the Court of appeals reminded all parties that the Supreme Court’s pivot to video court hearings was meant to be limited in its scope:

“However, the Supreme Court further made clear that for all hearings that involve a critical stage of the proceedings, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.” ~WA Court of Appeals

In rendering its decision, the Court of Appeals reasoned the Supreme Court made it clear that for all hearings that involve a critical stage of the proceedings. Also, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.

“Here, by way of summary, the trial court violated Bragg’s right to counsel by not providing guidance to Bragg and his counsel about how to confer privately during at least four nontrial critical stage proceedings and by placing an unreasonable expectation on Bragg to assert his rights. And the State fails to meet its burden to prove beyond a reasonable doubt that such errors were harmless. Thus, without making any comment on the weight of the evidence or the conduct of the trial, we are compelled to reverse and remand this matter for further proceedings.” ~WA Court of Appeals

With that, the Court of Appeals revesed Mr. Bragg’s convictions.

My opinion? The use of technology in the courtroom has resulted in numerous benefits to the litigants and the public. These technological benefits should only improve as our courts, judges and litigants become more familiar with the features of the existing technology.

Clearly, however, the over-use of technology may undermine a defendant’s right to legal representation.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.