By Sade Mitchell and Nicole Phillips
Assistant Criminal District Attorneys in Bexar County
We all know the feeling—you’re about to walk into the courtroom for a battle. You’re about to put your hard work on display and hope that it rises to the challenge of achieving justice for your victims and your community.
Only instead of walking into the courtroom—instead of sitting down at counsel table, taking a deep breath, closing your eyes for that brief second of clarity before it all becomes automatic—you’re sitting in your office with your computer propped up on a box and half the contents of the room thrown into one corner off-camera. You’re about to conduct the first virtual murder sentencing in the State of Texas on a case that you have worked on for more than two years. You’re still ready for that battle. It just looks—and feels—very different.
The defendant in this case, Montrail “Trail” Butler, was charged with murdering one woman and shooting another in the back of the head. The woman who was shot in the back of the head survived and was able to identify Butler as the shooter. The killing took place in March 2017, and even though the defendant was arrested just days later, the case did not make it to trial until January 2020. Butler was ultimately convicted by a jury on February 5, 2020, of both murder and aggravated assault with a deadly weapon. He elected before the trial to have his punishment assessed by Judge Stephanie Boyd if he were found guilty.
Judge Boyd ordered a pre-sentence investigation (PSI), and sentencing was set for February 26, but due to scheduling issues, the hearing was reset twice, first to March 4 and then to March 18. Between those dates, talk about COVID-19 was already spreading quickly. The deceased victim’s mother lived out of state, so we suggested that she be able to watch the hearing and give her victim impact statement virtually. The defendant, his attorneys, and the judge were amenable to the idea. We would soon see that the suggestion was a foreshadowing of what was to come.
Even with all the uncertainty surrounding the response to COVID-19, we were still on for March 18. Then everything changed.
Emergency declaration
Bexar County’s first Declaration of Public Health Emergency was issued on March 13. By then, we knew that Butler’s sentencing would not happen on the 18th. The Bexar County District Courts started having smaller dockets and eventually eliminated in-person hearings altogether. Beginning the week of March 23, there was one Presiding Court and one Alternate Presiding Court that would handle “essential hearings.” Judge Boyd’s courtroom, the 187th District Court, was the Presiding Court the week of May 4.
With courts under immense pressure to move their dockets, even with us prosecutors and defense attorneys working from home, judges began brainstorming ways that didn’t involve in-person contact to resolve cases. The concept of doing pleas and other routine hearings via Zoom was just getting off the ground around this time, with a few courts utilizing it on various occasions.
Going forward on punishment
In Butler’s case, it took the court almost three years to try him and another three months after his conviction to conduct a punishment hearing. With the punishment range for murder being anywhere from five to 99 years or life in prison, the court had a great interest in giving both the defendant and the victim’s family finality after such a long wait.
After the court contacted us about putting this hearing together via Zoom, we had a lot of questions regarding the procedure and the judge’s expectations. Would witnesses have to appear in person to give live testimony while attorneys and the defendant appeared via Zoom? How would we admit evidence into the record? It was a shock for both of us, but as the saying goes, “The State is always ready.” So we got ready.
We found out that the judge would allow us to proceed however we felt comfortable, meaning we could appear via Zoom from our home or office, or we could appear in person in the courtroom (where the judge would be), and the same went for our witnesses. Once we had a basic understanding of what the judge expected, we then had to take a realistic approach to condensing our evidence. With no court reporter in court to take custody of physical exhibits, such as narcotics, was it still worth putting on a case where the defendant was found with .08 grams of cocaine? Ultimately, we felt it was not right to ask witnesses to go to the courtroom when we would be working safely from our offices.
The PSI report listed the defendant’s criminal history, his gang affiliation, and even included a Victim Impact Statement. The defendant also spoke briefly about the offense. Although he still denied committing the murder, he admitted to being involved and asked for a punishment of no more than 35 years. Having all of this information in the PSI report and knowing the judge would be able to view and consider it made condensing the punishment evidence easier.
Finding fingerprints
That brings us to the fingerprints. How were we to fingerprint the defendant in the jail, get the certified pen packet to the print examiner to make his comparison, and then retrieve the pen packet to give to the court reporter to enter into the record? The answer: baby steps.
Once we found out that we would be conducting this hearing entirely via Zoom, the very first thing we did was have the judge sign off on our motion to fingerprint. We sent the signed motion to the supervisors in the Central Records Division at the Bexar County Sheriff’s Office. The office is located in the jail, so they set up a time with the detention staff to have the fingerprint examiner take the defendant’s prints. During this time, there were still very strict requirements for everyone in the jail to wear masks at all times. This, of course, included the defendant; he was masked while the examiner collected his fingerprints—an issue that would be raised later in the hearing.
When we got word that the fingerprint examiner made the inked print card, we contacted the investigator on duty that day for our division, Mario Esparza. We directed him to the physical file in Nicole’s office where the certified pen packet was located. He took it over to the jail and gave it to the fingerprint examiner who made the inked print card earlier that morning. Mario waited while the comparison was done and then took the inked print card and the certified pen packet back to our office and put them on Nicole’s desk.
Preparing witnesses
After we thought through these practical and logistical concerns, it was then time to figure out how to prepare our witnesses for the hearing. We’ve all had to talk a witness through the process of giving in-court testimony before—but we had never done a Zoom hearing. We didn’t have any idea what to tell the witnesses because we ourselves didn’t know how it would go.
We decided early on to make sure all of the potential participants had actually used Zoom so it wasn’t during the hearing that we found out that someone’s webcam wasn’t working or somebody didn’t have the correct internet browser on their county-issued computer. We set up practice calls with all of the witnesses the day before to make sure their devices were working correctly and to fill them in as best we could on how we expected the hearing to go procedurally.
On Nicole’s very first practice call, she discovered that the webcam wasn’t working on the county-issued computer in the Sheriff’s Office’s Central Records department. This was where the fingerprint examiner would testify to the fingerprints on the defendant’s pen packet. She was told it was the only computer in the whole section that even had a webcam. Luckily, because we completed the call early in the day, the supervisors from Central Records got together with the County IT Department and were able to get it up and working by the next day. The morning before the sentencing hearing, Nicole conducted a successful Zoom call with the fingerprint examiner, where they were able to look at the exhibits together.
After countless hours of preparation, the day of the hearing was finally upon us. At that point, all we could do was have faith that we had made all of the necessary preparations to allow things to go the way that we envisioned them. We were as ready as we could be, but we still had only a vague idea of what to expect at the hearing itself. As it turned out, there were a few surprises in store for us yet!
The day of the hearing
The hearing was scheduled to begin on May 6 at 1:30 p.m. We put some thought into where each of us would be for the hearing. We both considered that we could just stay home, but the idea of the defendant being able to see inside our houses ultimately motivated us to conduct the hearing from our offices. It’s a good thing, too, or else our living rooms would have ended up on the evening news! Although we didn’t know about it ahead of time, some news reporters were admitted into the Zoom hearing as “participants,” but the judge explained that they would be on mute for the duration of the hearing. We could see them on screen at their homes, taking notes during the duration of the hearing.
After coordinating everything from home on the days leading up to the hearing, we both went into the office early the morning of the 6th. We got ready in our own separate ways. When Nicole got to the office, the first thing she did was make sure everything was in order with the exhibits. She marked the inked print card and the certified copy of the pen packet with State’s Exhibit stickers and made high resolution scans of them. She then emailed the scanned copies to the judge, court reporter, defense attorneys, and fingerprint examiner.
Nicole then cleaned out her office so it was camera-ready, made sure her laptop (which she had been using from home for the past month and a half) was set up and working properly, and did her usual preparations to calm her nerves and get in the right headspace. Sade arranged and rearranged her desk set-up to make sure everything was in the right spot.
We learned late that morning that the court had a YouTube channel and would broadcast the hearing live. Because the surviving victim was not going to participate in the hearing itself, we sent her the link to watch on YouTube. We also had a victim from one of the defendant’s prior cases watching via YouTube. As it got closer to 1:30, our victim advocate, Aurora Gomez, was communicating with the witnesses and victims to make sure they were ready to join and watch.
About 15 minutes before the hearing, we signed on with the Zoom link provided by the court coordinator. We sat in front of our computers, poised, smiling, and ready to be admitted at any second. We did that for about 15 minutes, thinking that once we were admitted, it would be game on, but that was not the case. The judge brought in each party one by one. We could see the court reporter in her home, the defendant in what looked like a classroom in the jail, and his attorneys in their office.
Once the attorneys and the defendant were all signed on, we had to wait for the defendant to sign his waiver stating that he wished to proceed with the hearing electronically. The judge used a Zoom feature that allows the meeting’s host to create “breakout rooms” where only certain participants are grouped together in a separate sub-meeting.
After about 30 minutes of waiting for the set-up and for the defendant to sign the documents with assistance of detention staff, we were ready to go. The judge asked for objections to be made by physically raising our hands because it was difficult enough for the court reporter to hear with only one person talking during direct. The judge started by referencing the TV show “All Rise,” telling us we were no longer at home or in our offices, but that we were before the court and should act accordingly.
Once we went live, the judge called the case and both sides made their announcements. “Nicole Phillips and Sade Mitchell on behalf of the State,” Nicole said. “Are both sides ready?” the judge inquired. “The State is ready,” Nicole again responded—as ready as we could ever be to do something that no one, at least to our knowledge, had ever done before in the State of Texas.
The virtual hearing
Right out of the gate, the defense objected to the majority of the PSI. To avoid speaking over each other, the two of us decided ahead of time to designate a speaker. We each had our phones out, and the non-speaker could text the speaker and vice versa. Our phones were constantly buzzing. After both sides made some arguments, the court allowed a 10-minute break so the State could provide her with caselaw indicating the Texas Rules of Evidence do not apply to the PSI report. When we returned, the judge sustained the objection in regard to the defendant’s criminal history in the report but overruled the objection related to the remainder of the PSI. Luckily, we didn’t really need the criminal history portion of the PSI; we were ready to prove up the defendant’s pen packet.
About an hour and a half after the hearing was scheduled to begin, the State called its first witness: the fingerprint examiner. He appeared via Zoom from the Central Records division of the Bexar County Jail. We discussed the exhibits that we had scanned and emailed to everyone during his testimony. However, the actual physical certified copy was presented to the judge in court by another prosecutor, Tamara Strauch, the Court Chief assigned to the 187th District Court, watching from inside the courtroom. That’s the document that was ultimately entered into the record.
Of course, just when you think you have thought everything through, you ask your witness to identify the defendant on his computer screen and he says, “No, I don’t see him.” It took Nicole a few panicked seconds to figure out why that was, but soon enough she realized he was in the wrong view setting! She walked him through how he could see all participants. Once that was done, he was able to identify the defendant easily.
Remember how everyone in the jail had to wear a mask? Well, the defense attorney did, and he was quick to ask the witness on cross about his identification of the defendant; he astutely pointed out that Butler was wearing a mask at all times while the fingerprint examiner was taking his prints. “How can you say that is the same person if you could only see half his face?” he asked. But the witness never wavered; he knew it was the same person he printed the day before. The fingerprint examiner explained they were face-to-face when the fingerprinting was done and he could recognize the defendant’s face. (Incidentally, the label on the defendant’s Zoom screen was “187th”—not his name or any other identifier.) The examiner testified that he compared the prints on his inked print card to those in the pen packet and they were both from the defendant. The pen packet, showing that the defendant had been sentenced to prison for two Burglary of a Habitation cases in 2014, was admitted without objection.
The next witness was a classification officer from the Bexar County Jail. As soon as we asked our first question about the defendant’s gang affiliation, the defense attorney objected. He claimed he wasn’t given proper notice. The judge asked if and when the notice was filed, and there we were again—phones buzzing and eyes searching our screens trying to find the file-marked copy of the notice we filed the year before. We found it and provided the date to the judge. The witness’s testimony continued, and the defense objected to just about every question that was asked. That means there was a lot of hand raising.
The problem with this system was that Nicole, the speaker during all of the questioning, couldn’t see the defense attorney’s feed because he was not speaking at all during the hearing. Speaker view is the default setting in Zoom, and because the only prior experience Nicole had with Zoom was meetings and trainings where it was only necessary to see the speaker (not the other participants), she had never thought to change the setting or to instruct her witnesses to do so. This means that Nicole couldn’t tell until the judge spoke, usually after she finished asking the question, that an objection had been made. (The witness also couldn’t see defense counsel’s hand going up and would often keep talking until he heard the judge say that there was an objection.) Whether it was intentional or not, this system actually made things a lot easier than verbal objections, because Nicole was able to get through her entire question without being interrupted. After the question was completed, the judge would then ask the defense to state the reason for his objection. The State was allowed to respond, and then the Court made its ruling.
When it came to identifying Butler, Nicole made sure to walk the witness through getting to the proper view before asking if he saw the defendant. This time the answer was “yes” from the start. The officer was able to testify about Butler’s gang affiliation and the defendant’s gang tattoos.
After the classification officer’s testimony concluded, the State rested. The defense asked for some time before calling any witnesses, so the judge put defense counsel and his client in a breakout room. There was some awkward silence while we waited. They came back after about five minutes and rested without calling any witnesses.
Finally, it was time for argument. It’s kind of amazing how long five minutes of argument seems when you’re alone in your office—it feels like you are talking to yourself. The words are coming out of your mouth, but without anyone else around, you wonder, “Is this thing on? Can anyone actually hear me?” And there is always the chance that they actually can’t (or don’t) hear you! Because at the end of the day, it’s a lot easier to ignore or give less credit to someone on a screen than someone standing right in front of you.
After arguments, the judge found the repeat offender enhancement allegation true. Then she gave a short statement and sentenced the defendant to 40 years on both cases to run concurrently, after which she invited the deceased victim’s mother to give her Victim Impact Statement. And just like that, the hearing was over and the judge stepped away, but no one wanted to leave without being excused. The judge returned shortly and excused all parties. In an interesting twist, the defense attorney asked to be placed in a breakout room to speak with Nicole about another case.
Conclusion
Virtual sentencings have their place in times like this. The criminal justice system has an obligation to do everything in its power to continue resolving cases where possible. The reality is that virtual hearings can be a means to that end, even more so in the coming months.
However, when we as prosecutors, as those tasked with seeing that justice is done, are asked to conduct a Zoom hearing, we have to think about whether it is best for our case. That includes considering what is best for the victim, the community, and even the defendant’s interest in finality.
In this case, we knew that we would have to cut some witnesses, but we also knew that the surviving victim and the deceased victim’s family wanted nothing more than to have the hearing over. They were craving closure. We are happy that we were able to give that to them after three years of waiting. In the end, it all goes to show that as a Texas prosecutor, you really do have to be ready for anything.