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U.S. justices urged to address law for vulnerable witnesses

Peter Vieth//February 8, 2021

U.S. justices urged to address law for vulnerable witnesses

Peter Vieth//February 8, 2021

The conviction of a Northern Virginia father for the murder of his wife presents an opportunity for the U.S. Supreme Court to clarify the law on remote testimony by child witnesses, the father’s lawyer argues.

The lawyer contends Virginia and other states are denying the rights of defendants to confront opposing witnesses, even when, as in the Virginia case, the witness is the defendant’s 8-year-old son.

The attorney is asking the high court to take up the appeal of Braulio Castillo, now serving a life sentence for the 2014 death of his wife, Michelle, at the mother’s Loudoun County home. Authorities accused Castillo of strangling his wife and staging a suicide scene.

Virginia’s appellate courts refused to overturn a jury’s 2016 guilty verdict, rejecting a variety of challenges. Now, Castillo’s hope for a new trial rides on the Confrontation Clause of the U.S. Constitution.

Mom died while kids slept

Michelle Castillo died in her home with three of her children sleeping nearby. The prosecutor contended that Braulio Castillo – then living separately – snuck into the house earlier in the evening and waited until the children were asleep before attacking his wife in her bedroom.

Her body was found hanging from a showerhead in a basement bathroom.

Braulio denied he was at the house. At trial, to place him at the scene, then-Chief Deputy Commonwealth’s Attorney Nicole Wittmann used fuzzy surveillance video, DNA evidence and a single eyewitness – the son who was just 6 when his mother died, according to the writ petition.

The jury heard and saw the son on a television screen as he testified from a separate courtroom. The trial judge did not tell the son that he was testifying at a criminal trial, or that his father was on trial for murder, the petition said. The son could not see his father, the defendant. 

The son gave inconsistent testimony, according to the petition. At times, he said he did not see his father in the home that night. But on direct examination, the son said his father brought him his blanket as he slept in his older brother’s bedroom on the night in question.

One juror said the panel was impressed with the detail about the blanket, the petition said.

“I know he was telling the truth when he said that,” the juror was quoted as saying.

Face-to-face testimony denied

Castillo’s trial lawyers had asked Circuit Judge Stephen E. Sincavage to require face-to-face questioning of the boy. Attorney Jonathan Shapiro acknowledged the sons’ testimony could undermine his client’s alibi:

“All the more reason why this child, six at the time of the death, must testify in Court, yes, in his father’s presence and in the presence of the jurors so they can judge his story accurately, Judge, not filtered through a TV simply because you cannot get a feel for a person’s demeanor, trustworthiness, credibility, whatever word you want to use, on a TV,” Shapiro argued, according to the writ petition.

Sincavage was unpersuaded, the petition said. He cited the child’s age, the seriousness of the case and the possibility of traumatizing the son if he had to testify in open court in front of his father.

Divergent standards

The constitutional challenge rides in large part on the interplay of two U.S. Supreme Court decisions addressing the Confrontation Clause.

In Maryland v. Craig, 497 U.S. 836 (1990), the court approved having a child abuse victim testify via closed circuit television. In Crawford v. Washington, 541 U.S. 36 (2004), the court disapproved the use of an out-of-court statement from a witness who could not be compelled to testify in person.

Lawyers for Castillo argue the Virginia statute that permitted the son’s remote testimony sweeps broader than the holding in Craig and violates the rule of Crawford.

Laws of other states are “a startling hodgepodge of differing approaches and procedural protections, or lack thereof, for those facing criminal charges,” the lawyers said in Castillo’s petition. It is “not just Virginia that has strayed from the confines of Craig,” the petition said.

The lawyers also urged the Supreme Court to take the case to address whether “Craig survives Crawford.” They contend Crawford “took out Craig’s legs.”

Castillo is represented by Joseph King and Lauren LaBourgeois of Alexandria.

If the court accepts the appeal, King said he expects there to be competing justices on both sides of the issue, given past opinions. He says the issue needs clarification.

“If Craig is valid law, what are its limits? The court could provide valuable guidance to the states,” King said.

Castillo’s writ petition was filed Jan. 4. Virginia Solicitor General Toby J. Heytens on Jan. 19 waived the state’s opportunity to respond. Waiver is the state’s usual practice, according to a spokesperson. The court is scheduled to confer on the writ petition Feb. 19.

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