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Commonwealth v. Parson6/17/2004
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Nichol : Vacation is before, I will be leaving on December 28th and returning on the 2nd
Court: Okay. Mr. McIntosh, I don't understand what the issue is.
McIntosh : That constitutes unavailability? Unavailability is someone who is dead, someone who is in the hospital or unable to communicate, I don't think, I haven't seen anything that indicates vacation constitutes unavailability . It's unfortunate and I'm sorry for that, but at the same time
Court: It doesn't sound like the vacation is the issue . The issue is this meeting he has to go to.
McIntosh : His vacation is from the 28th until the 2nd. He could be called in on the 2nd to testify and then he can fly out and be at his meeting by the 3rd.
Foster: First of all, Judge, I think Mr. McIntosh needs to provide some sort of authority that says you have to be dead to be unavailable .
Court: First of all, you are presuming that we going to get a jury seated and selected and be ready, I mean we just started a trial Tuesday and the first witness was called Wednesday morning . I mean you are presuming we will get that far, you are presuming that the Commonwealth will want to call him early in the proof, we've got his deposition . I don't understand what, I assume the deposition was also videotaped .
Foster: We have a videotape deposition, Judge, and he had an opportunity to fully cross-examine the witness
Court: Okay, it's real easy. I'll note your objection, overrule the objection, you all can do it by videotape, if the Court of Appeals says it's wrong, it's wrong, but he's going to be out of town at a meeting during the period of the trial. I think that clearly establishes unavailability. If you disagree, that's why we got the Court of Appeals. They found me wrong before, if they don't agree, I'm sure they will tell us to do it differently.
Foster: Mr. Nichol is here, are you excusing him from the subpoena that he is under?
Court: Yes, I mean if you've got his video deposition
McIntosh : I think the subpoena he is referring to, correct me if I'm wrong, I subpoenaed him at our video deposition to be here on January 2"d for this trial.
Court: Okay, then he's excused for that, given the video deposition, he's excused, Mr. McIntosh's objection is noted for the record, but that way we've got his testimony.
The majority opinion finds that "Appellant clearly waived his right to confront Nichol at trial when defense counsel, with Appellant's acquiescence, agreed that the testimony of medical witnesses could be presented by deposition ," and, in support of that finding, cites Richmond v. Commonwealth, with the parenthetical explanation "waiver by counsel : `[The defendant] could have been [present] if his attorney had so chosen ."' I have previously explained my view that Richmond does not support this "waiver by counsel" notion. Because I stand by my previous analysis, which employs the novel analytical method of quoting what the Richmond court actually said, i .e . , "obviously [Appellant's] absence was by choice. He could have been there . It is our opinion that he waived the right of confrontation ." To separate its holding from the "spin" placed upon it, I will not repeat that analysis here and will simply express my opinion that Richmond does not support today's majority's holding and reference my previous comments in that regard . Instead, I intend to focus in more depth on the question of whether counsel can waive a defendant's confrontation rights.
It is beyond dispute that an attorney cannot waive a criminal defendant's confrontation rights if the waiver
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