Judge, jury and executioner's mask

Donald Woods is a tall, broad-shouldered man. He has large arms, big hands and a well-fed stomach. When testifying at public hearings, as he did Jan. 23 at the County Administration Building, the Orange County undercover agent wears an unzipped leather jacket revealing a T-shirt bearing a large "sheriff" insignia. Woods has the kind of résumé you would expect of an experienced narcotics officer, though he has only been a drug agent for two years.

These characteristics, however, were not what made Woods such an imposing figure at the January meeting. It was what he wore over his head -- a black executioner's mask. During 10-minutes of testimony at the Nuisance Abatement Board, Woods spoke through a black ski mask with an oval slit to see out of, the kind typically associated with bank robbers and terrorists.

The ostensible purpose for the mask was to hide Woods' face from the public. Nuisance Abatement Board monthly meetings are broadcast live over Orange TV, the Orange County government cable channel.

By testifying in disguise, Woods says he is merely protecting his livelihood. "I'm able to work by not letting people know my facial features."

But allowing hooded witnesses runs counter to the time-honored notion of fairness to the accused. It is a concept that can be traced as far back as the Romans, and expressed by Shakespeare's Richard II: "Then call them to our presence -- face to face, and frowning brow-to-brow, ourselves will hear the accuser and the accused freely speak."

America's founding fathers thought so much about a defendant's right to face an accuser that they codified the practice in the Sixth Amendment. The amendment grants the right to a speedy trial and an impartial jury, but also establishes the right of the accused "to be confronted with the witnesses against him."

Even so, disguised witnesses are not unheard of in government tribunals. Congress, for example, still permits the testimony of disguised witnesses. Last September, an FBI agent blowing the whistle on the agency's alleged mishandling of terrorism information testified from behind a screen. Several New York City cops, coming clean on what they considered unethical police department practices, wore hoods during press conferences in 1999. That same year, a Broward County officer wore a hood when recounting, during a preliminary hearing, her undercover experience in a South Florida sex club.

But the U.S. Supreme Court sharply curtailed the practice of shielding courtroom witnesses in the landmark 1988 case Coy vs. Iowa. In that opinion, justices took exception to a sexually abused child permitted to testify from behind a screen. As Justice Antonin Scalia noted in writing the majority opinion, the screen prevented the defendant from looking the child directly in the eyes, and vice versa, thereby making it easier, in theory, for the child to lie.

"It is difficult to imagine a more obvious or damaging violation of the defendant's right to a face-to-face encounter," Scalia wrote.

What differentiates a hood from a screen? Nothing. "They are fundamentally the same," says Albert Krieger, chairman of the American Bar Association criminal-justice section.

It is difficult to tell whether the Nuisance Abatement Board falls under the Coy vs. Iowa ruling. Its meetings are "quasi-judicial" hearings, meaning cases are not heard by a judge, but by a group of civic volunteers who act as judge and jury. The board has, at its disposal, a number of measures to curtail drugs, gambling and prostitution, from requiring background checks on tenants, to allowing sheriff deputies to inspect homes and kick out tenants who have a criminal background. The NAB can also levy fines up to $15,000.

Most board members seem satisfied with hooded agents. "These agents do a lot of work to control the drug business," says board chairman Jason Toll. "If we don't protect their identity, how else will they work? We're putting their life in jeopardy."

Generally speaking, undercover agents do not go into nuisance homes to buy drugs. They use confidential informants, known on the street as "snitches" or "CIs," to make purchases and exchange information.

After Woods testified at the Jan. 23 meeting, Mark Eckert, a 42-year-old circuit-board designer who was appointed to the NAB in September, told other members he was against allowing hooded cops to testify. "Why doesn't everybody wear a mask if they don't want to be seen on TV?" Eckert asks.

Board attorney Daniel Mantzaris, however, defended the board's practice by telling Eckert he misunderstood the Sixth Amendment confrontation clause, which Mantzaris says is mainly concerned with a defendant's right to cross-examine his accuser. Mantzaris also says the NAB is different from the court system because its meetings are open to the public, and because courts often allow testimony outside the presence of the jury and court attendants.

Of course, courtrooms are open to the public and their proceedings are often shown on television. Cops are not allowed to don masks in a courtroom, even if they work undercover, unless they can demonstrate that their lives could be in danger by showing their face.

"While I might be convinced that the use of disguised witnesses is appropriate in certain cases, such as in the infiltration of organized crime, I have a hard time accepting their use in routine code-enforcement actions," says Larry Walters, an Altamonte Springs civil-liberties attorney. "It appears that, once again, Central Florida law enforcement is becoming overzealous in their misguided efforts to Ã?clean up' Orlando, while sacrificing basic constitutional rights in the process."

Board members told Eckert to disregard officers' testimony if he found it noncredible. But the problem isn't so much what agents say. The fact that they appear hooded at the hearings is prejudicial in itself: The assumption can easily be made that the defendant in NAB actions must have done something terrible if a police officer has to hide his identity in a public forum.

"Often such tactics are designed to shock the hearing officers as much as they are to present testimony," Walters says.

Three masked undercover officers have testified at NAB hearings in the past year. Two of those wore standard ski masks with eye slits. The other was Edward Clay McCullough, who appeared in a blue shirt, red tie and a black hood completely covering his face, including his eyes. There was no way to tell if the person who claimed to be Edward Clay McCullough was, in fact, Edward Clay McCullough.

At the next board meeting, Feb. 27, Eckert will ask his fellow members to send a letter to the Florida Attorney General's Office, seeking advice on the practice of hooded witnesses. While waiting for a ruling, the board might consider other remedies, such as blurring the faces of officers on television (though Orange TV technicians can do this only for tape-delayed hearings, not live broadcasts) or asking Orange TV not to aim their cameras at the officers.

The board can also ask agents to testify by closed-circuit television. Or, like Hillsborough County, county administrators can opt not to air NAB meetings on cable TV. That decision, however, would make it even harder to tell the good guys from the bad guys.


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