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Today at 9am, the SJC hears arguments in Vazquez Diaz, a case on requiring virtual hearings for criminal defendants. @bostonbar @MassCrimDefense & @houstoninst filed jointly as amici.
Watch live, via @Suffolk_Law: http://bit.ly/2SLM1iX
Our statement: https://bit.ly/3gj6Qxd
1/2 https://twitter.com/houstoninst/status/1330157697753358339
Watch live, via @Suffolk_Law: http://bit.ly/2SLM1iX
Our statement: https://bit.ly/3gj6Qxd
1/2 https://twitter.com/houstoninst/status/1330157697753358339
Here's @shiraschoenberg on the case for @CommonWealthMag: https://bit.ly/39KJYWk
And @Law360 on the @BostonBar @houstoninst @MassCrimDefense joint brief: https://bit.ly/33QUMyh
Read the brief itself: https://bit.ly/3onTfYu
2/2
And @Law360 on the @BostonBar @houstoninst @MassCrimDefense joint brief: https://bit.ly/33QUMyh
Read the brief itself: https://bit.ly/3onTfYu
2/2
Waiting now on the first argument for new Justice Dalila Argaez Wendlandt and the first with Kimberly Budd as Chief Justice...
Justice Wendlandt's family is present (virtually), as SJC Clerk Kenneally reads her formal commission from @MassGovernor and Secretary of State Galvin.
Rebecca Kiley @CPCSnews presents Vazquez Diaz's case, arguing that a Zoom hearing is constitutionally incapable of replicating an in-person one, which the defendant is willing to wait for, waiving (per Justice Cypher's question) any speedy-trial claim.
Justice Lowy: They may not be optimal, but why are Zoom hearings unconstitutional, given the circumstances?
A.: No need to rush. No compelling public-health reason to force him into it when he's willing to wait.
A.: No need to rush. No compelling public-health reason to force him into it when he's willing to wait.
Justice Gaziano: So a Zoom hearing's only possible when the defendant's willing to waive their right to a speedy trial?
A.: Yes.
Q.: What about due process? Is that when we should balance the defendant's willingness to waive against the public-health concern?
A.: Yes. ...
A.: Yes.
Q.: What about due process? Is that when we should balance the defendant's willingness to waive against the public-health concern?
A.: Yes. ...
... Let's not seek to solve a public-health problem on the backs of indigent criminal defendants. Forcing them into a hearing won't solve the real problem, which is inability to hold jury trials as usual. Suppression hearings, like this one, make up only 4-5% of hearings.
Gaziano: Can you constitutionally waive your speedy-trial right.
A.: Yes.
Justice Kafker: Talk more about whether the confrontation right applies to a motion to suppress. Hearsay is a big part of those.
A. That's allowed, to a certain extent, and that can continue. ...
A.: Yes.
Justice Kafker: Talk more about whether the confrontation right applies to a motion to suppress. Hearsay is a big part of those.
A. That's allowed, to a certain extent, and that can continue. ...
Commonwealth's suggesting there's no right to confront, and that would be the real change to current law.
... It'd be OK to bifurcate testimonial and argument phases, for purposes of holding hearings, virtually and in-person.
... It'd be OK to bifurcate testimonial and argument phases, for purposes of holding hearings, virtually and in-person.
Justice Wendlandt: Does it make a difference whether the witness is wearing a mask at a hearing?
A.: JMAC urges that witness be unmasked, with protections. But step back to consider the inability of smart-phone or laptop hearings to approximate a courtroom hearing.
Q.: But why?
A.: JMAC urges that witness be unmasked, with protections. But step back to consider the inability of smart-phone or laptop hearings to approximate a courtroom hearing.
Q.: But why?
A.: Lack of gravitas and solemnity of the proceedings. Defendant's inability to discern reactions.
Q. But I can tell now who's fidgeting and can read facial expressions.
A.: Can't tell if I'm twiddling thumbs, tapping toes, ...
Q.: But what part of the constitution requires that?
Q. But I can tell now who's fidgeting and can read facial expressions.
A.: Can't tell if I'm twiddling thumbs, tapping toes, ...
Q.: But what part of the constitution requires that?
A.: Lack of eye contact is a major flaw. Witness needs to be right in front of defendant as they contemplate whether to tell the truth.
Then there's the inability to effectively communicate with counsel.
Q. But we're in a new world where defendants aren't sitting next to counsel.
Then there's the inability to effectively communicate with counsel.
Q. But we're in a new world where defendants aren't sitting next to counsel.
A. That's actually not what I'm hearing.
Cypher: Do you agree with the lower-court judge about how the proceedings would operate?
A.: She failed to recognize the problems I cited. As for the mechanics of them, I can't think of a particular error.
Cypher: Do you agree with the lower-court judge about how the proceedings would operate?
A.: She failed to recognize the problems I cited. As for the mechanics of them, I can't think of a particular error.
Justice Lowy: I'm concerned about communication with counsel, which is critical. But we have to recognize the world we're in, and that there are no absolutes.
A.: Our request is fairly modest, and defendant is the one sitting in jail.
A.: Our request is fairly modest, and defendant is the one sitting in jail.
Gaziano: But isn't there a governmental interest in a speedy trial? Consider victims and their families.
A.: Sure, but even if the hearing proceeded, there still wouldn't be a trial for a while. Commonwealth hasn't explained why their case would deteriorate over time here.
A.: Sure, but even if the hearing proceeded, there still wouldn't be a trial for a while. Commonwealth hasn't explained why their case would deteriorate over time here.
Q.: But we have to consider all cases, not just this one.
A.: Still, suppression hearings represent only 4-5%.
Q.: Does CPCS have a rule on how to handle these hearings?
A.: Still, suppression hearings represent only 4-5%.
Q.: Does CPCS have a rule on how to handle these hearings?
Kafker: What if a defendant is also moving to be released? Should that be taken into account? How to balance all these competing rights and interest? What about court officers, or other inmates, who could be exposed if there's an in-person hearing?
A. Defendant here doesn't want an in-person hearing until it's safe, so no one would be exposed. If he moved for release based on delay, the judge could consider his insistence on waiting. But bail considerations aren't really presented by this case.
ADA Campbell @SCDAONews for the Commonwealth: We're trying to keep the wheels of justice turning in spite of the pandemic, as we've been asked to do. SJC's recognized that traditional formalities aren't necessarily core constitutional rights. Virtual hearing would protect those.
CJ Budd: But doesn't it matter that the defendant's willing to waive his speedy-trial right?
A.: No. He may pursue an ineffective-assistance claim later on, saying he didn't know how long he'd be sitting in jail.
Q.: But couldn't that be addressed by a comprehensive waiver?
A.: No. He may pursue an ineffective-assistance claim later on, saying he didn't know how long he'd be sitting in jail.
Q.: But couldn't that be addressed by a comprehensive waiver?
A. It doesn't address other governmental interests, like our case being prejudiced and victim interests.
Gaziano: You lose unless we find there's no confrontation, right?
A.: No, you could find there's a relaxed right. The rule is strict on face-to-face confrontation _at trial_.
Gaziano: You lose unless we find there's no confrontation, right?
A.: No, you could find there's a relaxed right. The rule is strict on face-to-face confrontation _at trial_.
Q.: But either you have that right under Article 12 or you don't. And if you do, it has to be face-to-face.
A.: Not necessarily as to suppression hearings. Unlike at a trial, the judge is the fact-finder, and has the control over proceedings.
A.: Not necessarily as to suppression hearings. Unlike at a trial, the judge is the fact-finder, and has the control over proceedings.
Q.: Are there any cases that recognize this Confrontation Clause Lite that you're proposing?
A.: No, but there's a recognition that rights must sometimes yield to other interests.
Q.: I think that either you have that right or you don't, and only if you don't do we proceed here.
A.: No, but there's a recognition that rights must sometimes yield to other interests.
Q.: I think that either you have that right or you don't, and only if you don't do we proceed here.
Kafker: Why do we have to go there? Why not just treat this like a continuance?
A.: Extreme delay would have consequences on the presentation of our case.
Q.: But we can't handle every case before the courts right now, so if one defendant doesn't want to proceed...
A.: Extreme delay would have consequences on the presentation of our case.
Q.: But we can't handle every case before the courts right now, so if one defendant doesn't want to proceed...
...why can't we move on to one who does?
A.: We're not seeing many who are willing, and this court's ruling may discourage any from agreeing.
It's been chaos in courtrooms. Lower courts need guidance that virtual hearings are constitutional and should be happening. ...
A.: We're not seeing many who are willing, and this court's ruling may discourage any from agreeing.
It's been chaos in courtrooms. Lower courts need guidance that virtual hearings are constitutional and should be happening. ...
... There's a lack of uniformity right now, among judges, in dealing with this issue.
Kafker: Isn't there a "weird effect of having this done remotely"? Is it possible that distinguished professors' research proves defendants do worse at virtual hearings?
Kafker: Isn't there a "weird effect of having this done remotely"? Is it possible that distinguished professors' research proves defendants do worse at virtual hearings?
A.: We're not saying this should be a permanent, universal approach, just that they be allowed to occur where circumstances present a compelling need. If ever defendant's rights must yield, this is the time.
Wendlandt: But where's the compelling need when defendant's willing to wait?
A.: That's just one element that needs to be considered.
Q.: What's at issue when (as here) there's also no victim?
A.: For one thing, efficient administration of justice.
A.: That's just one element that needs to be considered.
Q.: What's at issue when (as here) there's also no victim?
A.: For one thing, efficient administration of justice.
... In our experience, even if there's no CPCS rule on dealing with this issue, hardly any cases are actually moving forward.
Cypher: To what extent does eye contact matter toward confrontation rights?
A.: This case is different because it's not a trial before jurors. ...
Cypher: To what extent does eye contact matter toward confrontation rights?
A.: This case is different because it's not a trial before jurors. ...
... Judge can take steps to address any problem with assessing credibility because of the technology.
Gaziano: But this about the cop looking at the defendant and testifying that they consented to the search.
Gaziano: But this about the cop looking at the defendant and testifying that they consented to the search.
Kafker: Isn't the judge typically looking at the defendant and the witness, which they can't do here?
A.: Bergstrom ruling (involving remote child witness) was limited to trials and to a different kind of tech, which had other problems.
A.: Bergstrom ruling (involving remote child witness) was limited to trials and to a different kind of tech, which had other problems.
Lowy: What about a child witness in a trial without a jury during the pandemic? Is that a confrontation concern?
A.: Could be, because a trial is to determine guilt. This is just about admission of evidence.
Cypher: They're similar in that they're about assessing credibility.
A.: Could be, because a trial is to determine guilt. This is just about admission of evidence.
Cypher: They're similar in that they're about assessing credibility.
A little discussion between Justices Lowy and Kafker about nature of hearsay evidence at suppression hearings ... and we're done!
