Virginia Supreme Court Finds Use of Video Conferencing to Conduct Annual SVP Review Hearing Provides Due Process

Shellman v. Commonwealth, _Va._, 733 S.E.2d 242 (Nov. 1, 2012, No. 120261)
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In a sexually violent predator’s (“SVP”) appeal of his recommitment to secure inpatient treatment, the Virginia Supreme Court held on November 1, 2012 that use of a two-way electronic video and audio communication system does not conflict with the respondent’s statutory and due process rights, including his right to counsel.

Reginald Shellman was convicted of aggravated sexual battery in Fairfax County Circuit Court in February 2001. Prior to his scheduled release, the Department of Corrections assessed him as a potential SVP and referred him to the Commitment Review Committee, which subsequently referred him to the Office of the Attorney General for a determination as to whether to seek commitment. Upon petition of the Attorney General and following the requisite hearings, the Fairfax County Circuit Court found Shellman to be a SVP and committed him to the Virginia Center for Behavioral Rehabilitation in Burkeville, Virginia, all in accordance with Chapter 9 of Title 37.2 of the Code of Virginia.

In 2011, the Virginia General Assembly amended Virginia Code § 37.2-910(A) to permit annual assessment reviews to be conducted, “whenever practicable,” by means of two-way electronic video and audio communications. As a result, and over the objection of the respondent, the court held Shellman’s annual review proceeding by video conference. Present in the courtroom in addition to the judge was counsel for the Commonwealth, respondent’s counsel, and respondent’s mother. The respondent and the Commonwealth’s expert, Mario Dennis, Ph.D., a clinical psychologist and Director of Forensic Services at the Center, appeared by video from the Center. At one point, the video feed was lost at both locations, but the hearing was suspended for a short time while the connection was reestablished. The respondent objected during the hearing and on appeal, arguing that the video conference violated his statutory rights in Virginia Code § 37.2-901 to be represented by counsel, to be present during the hearing, and to present evidence and to cross-examine witnesses. Although he could ask to speak in confidence with his attorney, he also argued that is ability to consult and interact with his counsel during the hearing was stifled, thus violating his due process right to counsel. The record did not reflect, however, that the respondent or his counsel actually indicated they wished to confer at any point during the proceeding.

The Supreme Court first held that there was no statutory violation. The statutes granting the respondent’s rights, including the right to counsel, and authorizing the use of video conferencing were both plain on their face, were not clearly ambiguous, and did not conflict with one another. The respondent demonstrated no prejudice in appearing by video conference and the statute permitting its use “whenever practicable” was a matter committed to the court’s sound discretion. The respondent’s mere objection to the video conference did not render its use “impracticable,” and as such, was a matter left to the court’s sound discretion.

Turning to the constitutional issue, the Court applied the Fourth Circuit’s decision in United States v. Baker, 45 F.3d 837 (4th Cir. 1995), in which that Court upheld the use of videoconferencing in the context of competency commitment hearings. The Court found that the goal of both processes is to test the opinions of experts. Whereas in a criminal trial the demeanor of the defendant and witnesses is a major concern, decisions to commit for competency restoration or as an SVP are both based not so much on the demeanor of the witnesses, but on the qualifications of the experts and the substance and thoroughness of their opinions. The Court then found that “the purpose of the annual assessment hearing is to determine whether, in light of the treatment received in the preceding year, the respondent remains a sexually violent predator and, if so, whether there is a less restrictive alternative to secure inpatient treatment.” The Court therefore held that the use of video conferencing in this context is neither unconstitutional on its face nor as applied in this case.

Found in DMHL Volume 32 Issue 1