Issue Before the Court: Whether Mr. Dixon’s constitutional right to present a defense was violated by the prosecution monitoring the phone calls he made from jail to his trial witnesses.

Factual Background: Mr. Dixon was indicted on charges stemming from allegations of sexual assault against minors and child pornography. He posted bail and was released following the indictment.

In addition to counsel, the court assigned Mr. Dixon a computer expert and investigator to help with his defense. Upon Mr. Dixon’s motion, however, the court ultimately granted his request to go pro se. His attorney remained assigned as a legal advisor, and the assignments of the computer expert and investigator continued.

Mid-trial, the court remanded Mr. Dixon to jail after determining that Mr. Dixon either posted, or assisted in posting, a blog post making sexually disparaging comments regarding one of the minor complainants; the post included a photo of the complainant in her underwear.

Following his return to jail, Mr. Dixon objected at several points that his incarceration made it difficult for him to prepare his trial witnesses. In response, the court allowed Mr. Dixon to speak with witnesses privately in the courtroom. During one of his witnesses’ testimonies, however, Mr. Dixon learned that the prosecution had been monitoring his jail calls with his trial witnesses. Mr. Dixon objected to the prosecution monitoring the calls, arguing that it gave the prosecution an unfair advantage; and on appeal, that it impaired his ability to prepare and present a defense. The court rejected his objection, and Mr. Dixon was ultimately convicted after trial.

Held: Under the particular circumstances of this case, including the two years Mr. Dixon was out at liberty to prepare witnesses, his right to present a defense was not violated.

CAL Observers: This was a unanimous decision authored by Judge Troutman. Although the Court did not find a violation of Mr. Dixon’s right to present a defense, it noted throughout the opinion that the outcome was limited to the facts in this case. The Court reiterated that jailed pro se litigants must have a meaningful opportunity to prepare their defense, including securing and preparing witnesses. However, Mr. Dixon had many opportunities to prep his witnesses outside of the jail calls. He: (1) was out on bail for almost two years, six months of which were when he was pro se; (2) was given the opportunity to speak with his witnesses privately in the courtroom;

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(3) had the ability to, and did, prep witnesses in person at the jail; and (4) had an assigned legal advisor, a computer expert, and investigator working with him while in jail. He therefore had the time and means to prepare his witnesses without the prosecution monitoring.

The facts here, and so the legal analysis, are nearer to one end of the spectrum: a scenario where the jailed pro se litigant was at liberty throughout the majority of his case. It therefore leaves open questions around the right to present a defense when the pro se litigant is closer to the opposite side of the spectrum; that is, when they are incarcerated throughout most, or all, of their case. When litigating this issue where their client had been incarcerated throughout most of their case, practitioners should also consider whether their client had a meaningfully similar opportunity to prepare a defense compared to pro se litigants who are mostly at liberty. The circumstances could give rise to an Equal Protection challenge on the basis that their right to present a defense was limited or hampered simply because they could not afford bail.