Boston Bar Association Joins MACDL & CHHIRJ In Arguing For The Right To An In-Person Hearing

Case Raises Concerns About Adverse Impact
on Low-Income Communities and People of Color

The Boston Bar Association (BBA) has joined the Massachusetts Association of Criminal Defense Attorneys (MACDL) and the Charles Hamilton Houston Institute for Racial Justice (CHHIRJ) in an amicus brief drawing attention to serious potential disparities that the use of virtual hearings poses for low-income communities and people of color.

The case, Vazquez Diaz v. Commonwealth (SJC-13009)—which is headed to the Supreme Judicial Court (SJC) for oral argument on December 7—involves a criminal defendant who is appealing a judge’s rejection of his request that a hearing on evidence suppression in his case be held in-person, rather than on-line.

As the BBA, MACDL, and CHHIRJ argue in their brief, “Requiring suppression motions to be heard virtually upends the fundamental rights of the accused and will work particular harm against defendants of color and their communities”—an outcome that would compound the hardships that the COVID-19 pandemic and police abuses already pose to those populations.

Although these arguments would apply to criminal trials and other types of hearings, they are of special import in suppression hearings, which (a) often determine the outcome of a case, and (b) serve to both deter unlawful police conduct and offer notice of systemic policing issues.

The BBA/MACDL/CHHIRJ brief further points to disparities in access to the Internet and broadband connections—which will adversely affect not only defendants but their loved ones and other supporters, as well as victims, witnesses, and public observers. And the brief offers suggestions, in an addendum, for procedural protections the SJC should consider putting in place for defendants who are willing to consent to a virtual hearing, in order to ensure that such consent is informed and freely given.

The joint brief was drafted by CHHIRJ’s Katharine Naples-Mitchell, MACDL’s Chauncey Wood of Wood & Nathanson LLP, and Meredith Shih—an attorney at Harvard Law School’s Criminal Justice Institute, who also serves on the BBA’s Amicus Committee.

In the wake of the tragic killing of George Floyd, the BBA launched a Task Force on Ensuring Police Accountability, to address legal issues that create serious structural obstacles to police reform efforts, specifically those that serve to undermine accountability for police misconduct.

BBA President Martin F. Murphy of Foley Hoag LLP said, “As the joint brief notes, virtual hearings can exacerbate profound inequities and systemic racism in the Commonwealth’s criminal cases. At a time when the courts, the BBA, and the wider public are focused on those disparities, it is especially important to be vigilant not to exacerbate them.”

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Amicus Curiae means, literally, friend of the court. Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice. The 2020-2021 BBA Amicus Committee is co-chaired by Neil Austin of Foley Hoag LLP and Maria Durant of Hogan Lovells.