by Carolyn Bick

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Tommy Le’s grandmother is in her 90s. Thanks to the fact that civil jury trials are currently being held virtually, to keep people safe in the novel coronavirus pandemic, she will be able to safely watch from home the civil trial against the man who killed her 20-year-old grandson in 2017.

But this would not have been the true if the judge presiding over the case had granted the request made by the lawyers for King County and Deputy Sheriff Cesar Molina for the trial to proceed in person.

Despite King County’s own Emergency Order halting all in-person civil jury trials until at least late March in order to keep people from catching the virus and developing COVID-19, lawyers for King County and Molina tried to argue that an in-person trial could be conducted safely. Though U.S. District Court Judge Thomas S. Zilly ultimately denied their request later that same day, King County’s and Molina’s lawyers pushed for an in-person trial regarding the shooting death of Vietnamese American student Tommy Le in a hearing held on Feb. 25, just a couple of days after health officials detected yet another novel coronavirus variant in King County and against the backdrop of vaccine predictions that appear to indicate that the vaccine won’t be available for everyone until at least July. The trial is set to begin in less than two months, on April 19.

In 2017, Molina shot and killed 20-year-old South Seattle College student Tommy Le on the eve of his graduation from the college’s alternative high school completion program. The shooting became a high-profile case, particularly after it was discovered that Le was allegedly holding a pen, not a knife, as the King County Sheriff’s Office (KCSO) originally falsely claimed. The Emerald has been taking a deeper dive into the case, beginning with a story about how Molina may have shot Le in the back while the young man was facedown on the ground. 

Arguing on behalf of King County, King County Prosecutor’s Office (KCPO) attorney Daniel Kinerk made the case for an in-person hearing. He said that not only would a virtual hearing run the risk of what he called “Zoom fatigue” for jurors but that a virtual trial holds the risk of technical glitches. He also said that the defense has “well over 100 exhibits” and at least 40 witnesses. Kinerk said that all of these factors in combination could make what is already set to be at least a two-week trial run even longer, particularly since “the expectation that a juror is going to be able to focus for six hours a day on a particular case is something too much to ask of anyone.”

Molina’s lawyer, Tim Gosselin, of Gosselin Law Office, PLLC, also said later in the hearing that he doubted either Thomas Jefferson or Alexander Hamilton — whom he said Le family lawyers Jeff Campiche and Phil Arnold cited in their opening memo, arguing against this particular request — would support the notion of a virtual trial. He did not acknowledge the fact that neither Jefferson nor Adams would have had the benefit of a modern understanding of diseases and virology, but he did note that there is “a reason” for the formality of a courtroom.

“In my opinion, that reason is largely lost when we do away with the courtroom and put everyone in their living rooms or their office conference rooms,” Gosselin said. “There is no opportunity to confront, other than the small blocks we are looking at here.”

But later in the hearing, Judge Zilly said that what he has personally heard from jurors has been the exact opposite. When he has talked with jurors, including at least one who has been on both an in-person jury and a virtual jury, Zilly said that they have told him they can still accurately judge a witness’s credibility, because that person “is right in their face, and won’t be wearing masks, like they would be doing if we were in trial in a courtroom,” allowing the virtual jurors to clearly see and hear the speakers. In some cases, the jurors were able to see and hear the speakers better than if they had been in a normal courtroom and felt more comfortable in their home environments.

“Clearly, we should have in-person trials, when it is safe to do so. But we can’t safely do so now,” Zilly said.

Gosselin also said that “some trials are being held,” referring to criminal trials currently being held in person. He claimed that “there is no practical difference between a criminal jury trial and civil jury trial” and that “if one can be held, there is no reason the other cannot be held. There is no structural difference there.”

But Zilly disagreed. He said that though Gosselin said there wasn’t much difference between trying civil jury trials and trying criminal jury trials, “obviously there are some major differences between a civil case and a criminal case.”

“A criminal has a right to a speedy trial. He has a right to confront his witnesses in a way that is constitutionally protected,” Zilly said, referring to the Sixth Amendment. “So, I don’t know that we can look at the fact that there are criminal cases being tried in King County or elsewhere as necessarily an indication of what we should do here.”

Gosselin also said that both teams would “be together and perhaps even in greater quantities, if they are participating remotely in a conference room. Individual teams will all be exposed to one another.”

Zilly, however, questioned: “Why would that be so? The teams could be in different rooms, conference rooms, offices — I just don’t understand why they all have to be together in the same space.”

Gosselin said that “I can tell you that the defense team will all be together through a remote trial. That is our plan.” He said his “expectation” will be that the Le family and their lawyers will do the same. Neither Jeff Campiche nor Phil Arnold, of Campiche Arnold, PLLC, who are representing the Le family, confirmed this and they were not in the same room during the Feb. 25 hearing.

Gosselin also said that “I certainly would be comfortable being in that courtroom,” adding slightly later that he has been vaccinated and understands that neither Zilly nor court staff may feel the same way he does.

But though Gosselin may have been vaccinated, this doesn’t mean that those who would appear at trial, in either a witness or a spectator role, would be by the time April 19 rolled around. The Le family hails from the Vietnamese community in Burien. According to current Public Health — Seattle & King County (PHSKC) data, most Asian community elders aged 65 and older in Burien still haven’t had their first dose of the vaccine. The number of elders who have gotten the first dose of the vaccine significantly decreases when looking at those aged 75 and older.

Additionally, most health experts predict that there won’t be enough vaccines for everyone in the United States until at least July, and that it may take an untold number of months — likely until the end of summer — to get enough people vaccinated for herd immunity. It should be noted that the FDA appears to be on the brink of issuing an Emergency Use Authorization for Johnson & Johnson’s one-dose vaccine, but it is not immediately clear when that vaccine would be available and how widely available it would be.

There is also the rising concern of viral variants, at least two of which have been detected in Washington State. As the Emerald has previously reported, the B.1.1.7 variant is significantly more contagious and potentially deadlier than the original novel coronavirus. Due to its virulence, PHSKC’s Health Officer Dr. Jeff Duchin has continued to sound the alarm about this particular variant, recently saying of the current situation — decreasing case rates, hospitalizations, and deaths from COVID-19 — that “we may be watching the tide silently recede before a tsunami.”

The B.1.351 variant, first detected in King County on Feb. 22, appears to have more vaccine resistance, which means that a person who has been vaccinated may still be susceptible to infection (or reinfection, for those who have previously been infected).

In an interview with the Emerald shortly after the hearing, Campiche said that the Le family was against an in-person trial because they don’t “want to needlessly expose anyone to illness or death from the coronavirus.”

“And when I use the word ‘needless,’ it’s because the Zoom trial is more than capable, as Judge Zilly said in his comments, of allowing for a full and fair trial without the risk,” Campiche said. Moreover, he said, with the exception of two people, “none of our witnesses and few of the people that will be interested in the trial that would come in person will be vaccinated by that date, or even 30–60 days after that.”

It is likely that an in-person trial would have been streamed for those who had wanted to watch but couldn’t attend in person for safety reasons, but this still means that witnesses would have had to appear in person, as would have jurors. Should an in-person trial have been held and a member of the trial team or the audience contract the virus and develop COVID-19 or bring the virus home to a vulnerable family member, it is unclear whether King County, Molina, and their lawyers would have been held liable, given that they were the ones making the request for an in-person trial.

Campiche also said that what was “really offensive is that lawyers for King County would object to a Zoom trial and promote [an] in-person courtroom in the time when their own rules limit occupancy in their buildings to 25%, [and] … require masks and require distancing.”

“The County Executive [Dow Constantine] is allowing [King] County to object to a Zoom trial in a time of pandemic. That’s offensive,” Campiche said. “The Le family wants this trial a lot more than those County executives and County officials. But they don’t want to expose anybody needlessly to infection or death from the coronavirus.”

Still, Campiche acknowledged that even if the Le family prevails in a virtual trial, one of the issues on which the lawyers for King County and Molina could appeal the outcome is the fact that, as of this writing, no court has yet issued a ruling on the fairness of a virtual trial. Thus, Campiche said, the defense loses nothing by raising the question.

“If they lose the trial, they have the right to an appeal, and they can add the issue of, ‘This was a Zoom trial, over our objection,’ to the issues on appeal,” Campiche said. “And since no appellate court has decided this, it might be a ‘Get Out of Jail Free card.’”

This may also happen if a court rules in another case that a Zoom trial violates a civil litigant’s right to a jury trial. Either way, Campiche said, King County and Molina would “get a new trial,” which would mean that the Le family would have to wait even longer to see an end to what has already been a years-long legal process. Moreover, on a broader scale, an official court decision that found virtual trials weren’t fair “might reverse a number of jury trial findings,” Campiche said.

Though Zilly had originally said during the Feb. 25 hearing that he wasn’t going to make a decision that day, he ended up handing out his decision just before 4:30 p.m. Zilly said in the morning’s hearing that even though he understood the trial may take up to three weeks, he would set time limits in order to avoid the trial dragging out. 

Zilly also said in the hearing that he didn’t think it was “realistic” to go forward with an in-person court trial in April, as the court hasn’t opened up for in-person civil jury trials. He did note that this order ends in late March and that its continuance would be up to King County Superior Court judges.

The Emerald sent an email to Executive Dow Constantine and the King County Executive’s Office (KCEO) spokesperson Alex Fryer. In the email, the Emerald sought to understand how this push for an in-person trial squared with the health and safety issues associated with in-person gatherings of any kind. 

Despite the fact that the KCEO is directly involved in the Le family’s lawsuit against the County, Fryer ultimately told the Emerald that the KCEO “will not comment on actions by the [KCPO], as they are represented by a separately elected official. You should pose your questions to [KCPO] directly.”

The Emerald reached out to the KCPO, which said that “[w]e have followed Public Health guidelines throughout the pandemic and will continue to follow guidance from Public Health – Seattle and King County.”

Author’s Note: As mentioned earlier in this story, the Emerald has been taking a deeper dive into the shooting death of Tommy Le. Interested readers can find the first article, which discusses the possibility Le may have been shot facedown and may not have even had a pen, here. A second article discussing red flags — uncovered in an Office of Law Enforcement Oversight-led independent investigation of the manner in which the King County Sheriff’s Office conducted the internal investigation into the shooting — can be found here. A third article discussing the King County Prosecutor’s Office’s potential conflict of interest in the case can be found here. A fourth article regarding taxpayers being partially on the hook for substantial court-ordered sanctions against defendants King County and Molina, for a frivolous appeal that delayed the original trial, may be found here.

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Featured image: A shrine for Tommy Le at the family home (image courtesy of the Le family).

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