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From Commonwealth v. Smarr, a nonprecedential decision handed down yesterday by a Pennsylvania appellate court:

Christopher Joseph Smarr appeals from the judgment of sentence entered following his convictions for first-degree murder, robbery, and related charges…. The Commonwealth brought charges against Smarr based on allegations that… he shot and killed the victim, Brandon Gray. The shooting occurred during a robbery, as part of a “turf war” between rival drug dealers….

Smarr argues that the court erred in allowing [Janay] Brown [the sole eyewitness to the shooting] to testify while wearing a scarf over part of her face because this denied Smarr his right to face-to-face confrontation under the Confrontation Clauses of the federal and state constitutions. Smarr argues that Brown’s testimony was impermissible under the test announced in Maryland v. Craig, 497 U.S. 836 (1990), for two reasons. First, Brown testified she only wears the scarf on Fridays, when she attends religious services at the Jum’ah, and whenever she feels that she wants to; she did not testify her religion required her to wear the scarf while testifying, and it was therefore unnecessary to allow her to do so. Second, Smarr contends the reliability of Brown’s testimony was not otherwise assured, as the jury were unable to clearly see Brown’s facial expressions and thus fully assess her demeanor and credibility.

The United States and Pennsylvania Constitutions provide criminal defendants the right to confront those who testify against them at trial.  See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him”); Pa. Const. Art. 1, § 9 (“In all criminal prosecutions the accused hath a right … to be confronted with the witnesses against him”)….

In Maryland v. Craig, the United States Supreme Court explained that the right to confrontation includes the following elements: (1) the witness testifies while face-to-face with the defendant; (2) the witness testifies under oath and (3) under the penalty of perjury; (4) the witness is subjected to cross-examination; and (5) the jury is able to observe the demeanor of the witness, “thus aiding the jury in assessing his [or her] credibility.” The Court held that the Confrontation Clause is not violated when a defendant is denied the first element, “a physical, face-to-face confrontation at trial,” so long as 1) “denial of such confrontation is necessary to further an important public policy” and 2) “the reliability of the testimony is otherwise assured.”

We conclude that Smarr has failed to establish that he was denied a physical, face-to-face confrontation with Brown. Smarr and Brown were in the same room, sitting within a few feet of each other, when Brown testified. Cf. Craig (distinguishing testimony via one-way video- conferencing from “live, in-person testimony” and holding that former is not face-to-face confrontation); Commonwealth v. Atkinson (Pa. Super. 2009); (holding two-way video-conferencing not constitutionally equivalent to physical face-to-face confrontation). In addition, Brown’s eyes were unobstructed. Cf. Craig  (emphasizing one-way video-conferencing was not face-to-face confrontation because it prevented witness from seeing defendant while testifying); Coy v. Iowa (1988) (holding testimony given while screen was positioned between defendant and witness stand, preventing witness from seeing defendant, did not satisfy face-to-face confrontation).

No precedent has established that a witness’s clothing or accessories renders a physical, in-court confrontation other than face-to-face, particularly where the clothing does not obstruct the witness’s eyes, and we decline to do so under the facts of this case. We therefore hold that Smarr’s right to be brought face-to-face with his accuser was satisfied. [Footnote: We note that other jurisdictions have concluded that partial face-coverings do not undermine the face-to-face aspect of confrontation. See Morales v. Artuz, (2d Cir. 2002) (finding that trial court’s decision to allow witness to wear dark sunglasses did not diminish face-to-face encounter under Confrontation Clause because “the obscured view of the witness’s eyes … resulted in only a minimal impairment of the jurors’ opportunity to assess her credibility”); Commonwealth v. Lynch (Mass. 2003) (holding witness’s alleged wearing of sunglasses would not have violated “face to face” confrontation under the Massachusetts constitution).]

Even if we were to conclude that Smarr was denied face-to-face confrontation with Brown, we would affirm the trial court’s finding that the testimony was permissible under the Craig test. Assessing the first prong of the test, the trial court found that allowing Brown to wear the scarf “was necessary to further an important public policy[]” …:

“The public policy interest involved in the instant case is the protection of the right to freedom and free exercise of religion. Brown consistently testified that she wore her head scarf for religious purposes. Brown wore a head scarf while testifying during [Smarr’s] Preliminary Hearing and Trial. Although Brown testified that she did not always wear a head scarf, she testified that she wore it whenever she felt that it was appropriate.”

We find the first part of the Craig test satisfied. The court found that protection of Brown’s ability to exercise her religion was an important public policy, and, after a hearing, made a specific, individualized finding and that allowing Brown to cover her face was necessary to further that policy.

Considering the second prong of the Craig test, the trial court found that “the reliability of Brown’s testimony was otherwise assured.” Specifically, the court found the jury was amply able to observe Brown’s demeanor. The court stated,

“… Brown was physically present in front of Defendant and she testified under oath. Brown was subject to cross-examination by [Smarr] and [Smarr] questioned her regarding her head scarf. The jury was able to sufficiently view Brown’s demeanor. [Footnote: Defense Counsel correctly noted during trial that ‘demeanor’ is defined as the ‘outward appearance or behavior, such as facial expressions, tone of voice, gestures, and the hesitation or readiness to answer questions.’] The jury was located within close proximity to Brown. They were able to perceive Brown’s tone of voice, her gestures, and any hesitation she may have exhibited in answering questions. The jury was also able to view Brown’s eyes. Although Brown’s mouth was covered, her nose was exposed much of the time and her scarf was pulled tightly to the point where the outline of her mouth was visible. This Court could observe when Brown was smiling or frowning…. Brown’s mouth and nose were the only features that may not have been visible to the jury. The jury was otherwise able to sufficiently observe Brown’s demeanor during her testimony.”

In addition, during trial, the court stated the scarf covering Brown’s nose and mouth was somewhat transparent. Moreover, Smarr did not deny that the jury witnessed Brown “br[eak] down into tears.”

Thus, the jury could view Brown’s eyes, and to some extent, her facial expressions; her posture, her gestures, and her body language; hear her tone of voice, her cadence, and her hesitation; and observe any nervousness, frustration, or hostility. We therefore hold that under the second prong of the Craig test, the other polestars of the right to confrontation—testimony given under oath, facing the penalty of perjury, subject to cross-examination, and with the jury’s observation of the witness’s demeanor—were amply preserved. Smarr’s right to confrontation under the federal and state constitutions was not infringed, and a new trial was not warranted….

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Since 1903, the plaque at the foot of the Statue of Liberty has extended a warm welcome to the “huddled masses yearning to breathe free,” the first sign of respite for immigrants arriving to America in pursuit of a better life.

But these words can just as easily describe 26,000 coal miners fighting for their health as they suffer from the largest black lung epidemic in a quarter century. Miners in Appalachia were exposed to silica dust, a substance that is 20 times more toxic than dust from regular coal, and now as many as one in five miners from Central Appalachia are showing signs of black lung disease.

For years, coal country has relied on physicians from around the world to help manage their chronic health conditions. In Hazard, Kentucky, the only two practicing pulmonologists—doctors who specialize in lung and respiratory care—are from Syria and Bangladesh. On the national level, 30 percent of America’s pulmonologists graduated from medical schools abroad, as did 87 percent of pulmonologists currently in training.

But coal country needs even more of these foreign doctors. By the next decade, almost 89 percent of America’s practicing pulmonologists will have reached retirement age, and there won’t be enough doctors to replace them.

The nation at large needs them, too. Even as America’s supply of lung doctors dwindles, over 16 million U.S. residents live with chronic obstructive pulmonary disorder (COPD), a progressive lung disease that often affects elderly people with a history of smoking. Over one in 10 people in Kentucky and West Virginia suffer from COPD, and roughly a quarter of residents in both states are smokers. They also face greater risks of exposure to asbestos, which has been found in Appalachian waterways and soil. According to Thomas Tucker, the associate director for cancer prevention at the University of Kentucky Markey Cancer Center, smokers exposed to asbestos can be 300 times more likely than nonsmokers to develop lung cancer.

There are a number of reforms Congress could enact to enable more foreign physicians to practice in the United States and save these American lives. Some of them are included in the recently reintroduced Conrad 30 Physician Reauthorization Act.

For starters, the bill expands the Conrad 30 J-1 Waiver, a program that allows foreign physicians who completed their medical residency on a J-1 visitor visa to remain in the United States.

Normally, these physicians would be required to return to their home country for a minimum of two years before they could practice in the U.S. But preventing fully qualified doctors from providing much-needed care immediately is nonsensical. Eventually, this provision should be scrapped entirely, but for now, the Conrad 30 Waiver exempts these doctors from the requirement if they agree to practice in a medically underserved area for at least three years.

The bill would also add five extra physician slots annually to every state’s 30-physician annual quota so long as these states use 90 percent of the available waivers. States using less than five of their physician slots would be excluded from this calculation so they won’t impede the program’s expansion in other states. This will allow states that have a high incidence of COPD to sponsor pulmonologists to help care for their residents.

The bill also offers a streamlined pathway to a green card through the National Interest Waiver (NIW), which participating physicians can qualify for if they practice in an underserved area for a total of five years, three of which can include the service required under Conrad 30. If passed, the bill would exempt NIW physicians from the worldwide green card caps, which have trapped some eligible physicians in decades of backlogs.

These reforms will be important for statewide efforts to attract more pulmonologists. The Virginia Department of Health, for example, has identified target areas where the Conrad 30 program can alleviate pulmonologist shortages. Some of these locations, like Buchanan County, are in the Southwestern region of the state, which contains the largest concentration of advanced stage black lung ever reported. When taken together, however, the number of Virginia counties listed as high priority shortage areas for pulmonologists, OB-GYNs, and primary care doctors far exceeds the program’s 30 physician limit. So this is a really modest bill that should be considered only the first step in broader reforms to let far more foreign physicians in.

One such reform would be exempting them from repeating medical residencies and fellowships if they already completed them in a country whose medical standards are similar to the United States. Under the current system, an experienced pulmonologist trained abroad needs to complete a three-year residency in internal medicine plus a two-to-three-year pulmonology fellowship in America before they can practice in the United States.

Because of these duplicative requirements, there are as many as 65,000 foreign-trained physicians unable to practice in the United States, and others are taking their talents to countries that better recognize their qualifications. (In Canada, physicians from a handful of countries can bypass residency requirements for certain specialties, such as internal medicine.) Better yet, hospitals should be allowed to assess the competency of these physicians for themselves, and take responsibility for any additional training and supervision they may require.

Despite the myriad of obstacles they must jump through, foreign doctors continue knocking at America’s door, eager to use their skills to care for Americans. Enacting policies that encourage more of them to come is one of the best ways to relieve the nation’s doctor shortage. America has an obligation to its own citizens to welcome all the help it can get.

Sam Peak is a writer at Young Voices who specializes in immigration policy.

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Last year, and in 2017, I put up posts about the universalist principles of the Declaration of Independence, and their continuing relevance today. The points made are no less relevant this year. So, this year’s July 4 post adapts much of the earlier material, with some new additions:

One of the striking differences between the American Revolution and most modern independence movements is that the former was not based on ethnic or nationalistic justifications. Nowhere does the Declaration state that Americans have a right to independence because they are a distinct racial, ethnic, or cultural group. They couldn’t assert any such claim because the majority of the American population consisted of members of the same groups (English and Scots) as the majority of Britons, and spoke the same language.

Rather, the justification for American independence was the need to escape oppression by the British government – the “repeated injuries and usurpations” enumerated in the text – and to establish a government that would more fully protect the rights to “life, liberty, and the pursuit of happiness.” The very same rationale for independence could just as easily have been used to justify secession by, say, the City of London, which was more heavily taxed and politically oppressed than the American colonies were. Indeed, the Declaration indicates that secession or revolution is justified “whenever any Form of Government becomes destructive of these ends” [emphasis added]. The implication is that the case for independence is entirely distinct from any nationalistic or ethnic considerations.

To be sure, the Declaration does refer to “one people” seeking “dissolve the “to dissolve the political bonds which have connected them with another.” But in this context, the “people” does not refer to a culturally or ethnically distinct group. The Americans were not distinct, in that respect, from the people of Britain. The “people,” in this case, is simply a group that voluntarily comes together to establish a new nation.

As critics from 1776 to the present have delighted in pointing out, the revolutionaries often failed to live up to their own ideals. But it would be a mistake to devalue the Revolution’s significance for that reason.

The Americans of 1776 fell far short of fully adhering to their professed principles. “How is it,” Samuel Johnson famously complained, “that we hear the loudest yelps for liberty among the drivers of negroes?” Thomas Jefferson, the principal author of the Declaration, owned slaves all his life, even though he was well aware that doing so contradicted his principles. The Declaration’s high-minded reference to the “consent of the governed” were in large part belied by the injustices many state governments inflicted on the substantial minority who did not consent to independence, but instead remained loyal to Britain.

Later generations of Americans have not fully lived up to the Declaration’s universalist ideals either. Racial and ethnic oppression, xenophobic exclusion of and discrimination against immigrants, and other similar injustices have been all too common in our history.

Several of the items included in Declaration’s list of grievances against King George III could easily apply to the federal government today:

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither,….

The same can be said of President Trump, who has waged a massive—and often brutally cruel—campaign against immigration, both legal and illegal. His administration also sought to strip numerous naturalized citizens of their status without providing even minimal due process.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance….

The federal government has a massive regulatory and law enforcement apparatus that regulates nearly every aspect of our lives—so much so that it is virtually impossible for ordinary citizens to avoid violating federal law at some point in their lives, or even to know all the laws and regulations they are subject to. The Justice Department’s asset forfeiture system empowers law enforcement agencies to literally “eat out [our] substance” even in many cases where the owner of the seized property has never been charged with any crime, much less convicted.

For cutting off our Trade with all parts of the world….

The US government is currently waging multiple self-destructive trade wars against various nations around the world, including even close US allies. To add insult to injury, the Trump administration even plans to institute new tariffs on tea and fireworks. The British government’s tea protectionism was, of course, the proximate cause of the Boston Tea Party, which helped lead to the Revolution.

Despite our many deviations from them, it would be a mistake to assume that the Declaration’s ideals were toothless. Even in their own time, the principles underlying the Declaration helped inspire the First Emancipation – the abolition of slavery in the northern states, which came about in the decades immediately following the Revolution. This was the first large-scale emancipation of slaves in modern history, and it helped ensure that the new nation would eventually have a majority of free states, which in turn helped ensure abolition in the South, as well.

The Declaration did not abolish slavery, and its high-minded words were, for decades, undercut by the hypocrisy of Jefferson and all too many others. But the ideals of the Declaration played an important role in slavery’s eventual abolition. As Abraham Lincoln famously put it, the Declaration established important aspirational principles, even if they could not be immediately realized:

I think the authors of that notable instrument intended to include all men, but they did not mean to declare all men equal in all respects…. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, or yet, that they were about to confer it immediately upon them…

They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.

They meant to set up a standard maxim for free society which should be familiar to all: constantly looked to, constantly labored for, and even, though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting the happiness and value of life to all people, of all colors, every where.

The universalist ideals of the Declaration also helped establish a nation that provided freedom and opportunity to immigrants and refugees from all over the world. Lincoln, who was a strong supporter of immigration, effectively conveyed this point, as well:

When [immigrants] look through that old Declaration of Independence, they find that those old men say that “We hold these truths to be self-evident, that all men are created equal”; and then they feel that that moral sentiment, taught in that day, evidences their relation to those men… and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration; and so they are.

Much progress has been made since Lincoln’s time, to say nothing of Jefferson’s. But at this point in our history, we are still far from fully living up to the principles of the Declaration. Certainly not when our government abuses refugee children and even turns away escaped slaves on the specious ground that their forced labor somehow qualifies as supporting terrorism. We must strive to do better, so that the principles of the Declaration can be more fully realized.

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