Yesterday’s ruling by the Supreme Judicial Court (SJC) in Vazquez Diaz v. Commonwealth recognizes a criminal defendant’s right, in many instances, to waive their speedy-trial rights in order to insist on an in-person pre-trial hearing. The Court’s opinion and a powerful concurrence each acknowledge that proceedings held over Zoom have a disparate impact on low-income communities and people of color, as an amicus brief from the Boston Bar Association (BBA), Massachusetts Association of Criminal Defense Lawyers (MACDL) and the Charles Hamilton Houston Institute for Racial Justice (CHHIRJ) argued.
The case involves a criminal defendant who appealed a judge’s rejection of his request that a hearing on evidence suppression be continued until it could be conducted in person, rather than on-line. The SJC concluded that the judge had abused her discretion in denying the defendant’s motion for a continuance under these circumstances, given the waiver and the lack of “civilian victims or witnesses”.
The opinion from Justice Elspeth Cypher ultimately held that a virtual hearing on a motion to suppress “is not a per se violation of the defendant’s constitutional rights in the midst of the COVID-19 pandemic”. The BBA/MACDL/CHHIRJ brief had cautioned, “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 pandemic and police abuses already pose to those populations.
Justice Cypher stated that “it is not lost on us that these restrictions [on public participation via Zoom] will disproportionately affect low-income members of our community, who often have less access to technology.” But in a concurring opinion, Justice Scott Kafker went further, cautioning that, in light of the myriad of access-to-justice concerns also raised in the amicus brief, the proliferation of virtual court proceedings post-pandemic should not be swiftly embraced.
Echoing points raised by amici, he wrote, “Not all litigants — or even their attorneys — have access to stable and reliable Internet, have Zoom-ready devices, or have enough familiarity with Zoom to have an opportunity to fully participate in a virtual hearing, as they would in an in-person hearing. … Importantly, access to reliable Internet is often dependent on income, socioeconomic background, and educational attainment. … Lack of Internet access is more common among racial minorities.”
More broadly, the concurrence warns that cases such as this one demand “sensitivity to the subtle effects of the technology, and cautious application, “adding that “[a]lthough the scholarship of these effects and problems is still developing and requires rigorous testing in court, it raises concerns that require a cautious approach, particularly after the pandemic ends and our court rooms can return to some semblance of normal.”With a full return to that normalcy still in the future, constitutional rights in the context of virtual proceedings will continue to be litigated.
Said BBA President Martin F. Murphy of Foley Hoag, “We are gratified that the SJC is mindful of the risk that virtual hearings will exacerbate profound inequities and systemic racism in the Commonwealth’s criminal cases, and we hope that future cases will allow the Court to take up Justice Kafker’s call for further consideration of protections for defendants — both those who are who are willing to consent to a virtual hearing and those, like Mr. Vazquez Diaz, who are not.”
While the Cypher opinion makes clear that the SJC considers remote technology to be substantially sufficient to protect most defendants’ constitutional rights in light of the grave public health risks, its decision was narrowly tailored to ensure that each defendant receives individualized consideration as to whether the extreme circumstances of theCOVID-19pandemic outweigh their constitutional right to in-person confrontation.
The amicus 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. The full decision can be read on-line.