Broward Sheriff’s Office Detective Danny Polo, whose face is concealed because he works undercover, testifies during the double murder trial for Jamell Demons, better known as rapper YNW Melly, at the Broward County Courthouse in Fort Lauderdale, Fla., Thursday, June 22, 2023. (Mike Stocker/South Florida Sun-Sentinel via AP, Pool)
A juror in rapper YNW Melly‘s double murder trial raised a vociferous protest about a prosecution witness on Thursday, a police officer who is being allowed to wear a mask and hide his identity,
Two jury notes were submitted to Broward County Judge John Murphy III that were shared with attorneys for both the state and the defense. The first note referred directly to the court-sanctioned facial obscuring technique; the second note made a more implicit, emotional objection.
“Why does he get to see us but we don’t get to see him?” the first note read, according to defense attorney David A. Howard, who read the note aloud in court.
The judge read directly from the juror’s second note.
“I need a moment,” the juror wrote. “I can’t listen properly. When I was a child, I seen someone get robbed and I am having an anxiety attack.”
The vague nature of the complaints set both sides up for an argument.
The masked witness is Broward County Sheriff’s Office Detective Danny Polo, who prosecutors are attempting to qualify as an expert witness on gangs. Polo claims he has fears for his family’s safety due to his undercover work.
During a recess, lead prosecutor Kristine Bradley argued that it wasn’t clear whether it was the mask being worn by the detective that had upset the juror, or his testimony about gang violence. Howard said the juror’s first note provided clarity.
“I think that lets us know that it’s the mask that’s of concern,” Melly’s lawyer said. He argued that it was clear from the overall context of Polo’s testimony – along with previous voir dire questions about gangs that jurors were asked – that the juror was, in fact, concerned with the mask.
“She passed that hurdle,” the defense attorney said. “So, it’s not a gang issue. It’s a mask issue.”
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The defense suggested dealing with the issue by having the witness testify without the mask. Howard said the state had indicated it was open to the idea. Bradley said she wanted to ensure the juror actually had a problem with the detective’s mask, while the court wanted to see if the juror could move on from her anxiety attack after a break.
Melly’s team had previously lodged an objection to Polo being allowed to give his testimony while his face was cloaked in black, but the court overruled that objection. Polo has been allowed to testify in a mask by two other courts in the Atlanta region in the recent past.
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Defense lawyers said they supported clarifying with the juror about the source of her professed anxiety but went on to argue that the question in the initial note “goes to the heart of the Confrontation Clause and also lets us know that her concern is the mask.”
Howard went on to say that jurors were not able to act on a jury instruction accompanying the masked witness. That instruction advised the jury to consider Polo the same as they would consider anyone other witness. But, Howard argued, the jury literally cannot do that, because they cannot judge things like the detective’s facial expressions.
After lunch, the judge discussed the issue with the juror. The juror said she had no hesitation following the law but did not feel that a witness being allowed to testify wearing a mask was appropriate.
Judge questioned juror to determine if she feels comfortable with witness wearing a mask. She said she can follow the law, but she did not think it was appropriate. Judge will read additional instruction regarding the reason for the mask. @LawCrimeNetwork @cathyrusson #ynwmelly
— Terri Austin (@Terridaustin) June 22, 2023
Ultimately, Murphy allowed Polo to continue testifying while obscuring his face – along with at least two additional jury instructions that explain why he is wearing a mask and how the jury should assess his credibility.
Melly, 24 — born Jamell Demons — is a member and co-founder of the YNW Collective, a popular group of hip-hop artists. He stands accused of two counts of murder for the 2018 shooting and killing of his friends and fellow collective members Chris Thomas, 20, known as YNW Juvy, and Anthony Williams, 21, known as YNW Sakchaser. A co-defendant being tried separately, Cortlen Henry, 24, known as YNW Bortlen, is also accused of both murders. Prosecutors allege Melly and Bortlen conspired to kill the victims and then staged a drive-by shooting.
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