-: SJC-13009,
John W. Vazquez Diaz, the Commonwealth
-: We have Attorney Kiley.
There she is.
-: Sorry about that,
here I am.
-: You can proceed.
-: Thank you.
Good morning, Rebecca Kiley,
on behalf of John Vazquez Diaz,
who sits currently at the Nashua Street Jail,
held on cash bail and awaiting trial
on a drug charge that carries
a 12 year mandatory minimum sentence.
Mr. Vazquez Diaz is before this court
because he seeks alive in court hearing
on his critical motion to suppress evidence and statements,
which could mean the difference between conviction
and acquittal in this case.
He's willing to wait
for such a hearing until the court deems it safe to be held.
But nonetheless,
the motion judge ordered him to submit now to a Zoom hearing
in which he would appear alone
and with a remote interpreter from the jail.
Even when the technology operates perfectly
and it often does not,
a Zoom hearing is simply incapable
of even approximating an in-court hearing.
The judges order if carried out would violate several
of Mr. Vazquez Diaz,
as his core constitutional rights,
including the right to be present
and to confront the witnesses against him.
But this court need that-
-: When you say he would be willing to wait,
should we take that to mean that he would be willing
to waive any claims of the delay?
-: Yes, and he said that explicitly at the hearing,
before the motion judge,
he acknowledged that this court has sort
of handled the speedy trial,
the Rule 36 VT trial issue for him so far,
but said to the extent that becomes an issue,
we will waive our Rule 36 rights to a speedy trial.
In order to-
-: This question is not going to surprise you.
And we all know we're in the midst of a pandemic here.
The constitution is an organic document.
We've got meet witnesses face to face
is the language we're interpreting.
We've got to infuse normative values
into those open-ended provisions,
recognizing the world we're living in right now.
And when we take into account
the private interest, Commonwealth interest
in the outcome and concerns about an erroneous deprivation
in the midst of a pandemic,
why aren't Zoom hearings constitutional?
They're not optimal.
Why aren't they constitution?
-: I think the key reason
is because there's no compelling reason to rush,
to do this hearing in this case.
And this, I really want to make clear
because the Commonwealth doing
the Mathews V.Eldridge balancing test
that you just alluded to,
the Commonwealth attempts
to put on one side of the scales,
the public safety and health risks that could be posed
by holding the hearing currently.
But it's not fair to do that where Mr. Vazquez Diaz
has said,
"look, I understand that I don't wanna put anybody
"in jeopardy, I'm willing to wait."
And what they haven't done is advanced a compelling reason
to rush this.
They gave two reasons
and I'd like to talk about why I think
neither of them is efficient here.
The first is they-
-: Miss.Kiley, before you get to that,
can I ask you just a preliminary question?
-: Sure.
-: This case, if we ruin this case,
it's going to impact all cases.
And I understand Mr.Dias,
is personal about willingness to waive any speedy trial.
What about other defendants though?
Would you have us rule that,
a Zoom hearing is only possible if there's a valid waiver,
no fingers crossed for any other defendant.
-: Yes, well, I think,
I'm sorry I feel like there were two parts
in that question,
but I think that the Zoom hearing is fine.
If a defendant waives his constitutional rights
to be present and to confrontation.
As for the speedy trial issue,
as justice Louis just suggested constitutional rights
are not absolute and sometimes one has to bend to another.
So defendant might have to sort of choose between his right
to a speedy hearing and his right to an in person hearing.
-: Does that waiver come into our due process balancing?
-: In...
I'm not sure I understand in what way.
-: There are a bunch of constitutional provisions.
One is Confrontation Clause,
which is open in which is a yes or no.
But then we proceed to the due process issue.
'Cause if it violates the Confrontation Clause
it violates the Confrontation Clause,
but don't worry if we proceed to the due process issue,
is that when we take into account the willingness
of a defendant to waive
in balance to the government's interest.
-: Wait, to waive a speedy trial rate?
Frank Gaziano: Right.
-: Yes, exactly and this is the point
that I was alluding to.
I don't think it's fair for the government to assert
an interest in public safety and health.
When Mr. Vazquez Diaz,
isn't asking for a hearing that would,
cause any danger in those respects
because he's willing to wait.
And so I think they're left with two interests.
The first that they identify
is the growing backlog of cases.
And on that score,
I wanna say first that,
Mr. Vazquez Diaz is not responsible for that backlog
and we shouldn't seek to solve that systemic problem
on the backs of incarcerated indigent criminal defendants.
But the second thing is that the whole thing we're hearing
in this case on a motion to suppress is not going to do much
to clear that backlog,
the Commonwealth cites the JMAC Report and it's brief,
but on page six of the JMAC Report,
they make it clear that the thing causing
the backlog is the fact that we can't have jury trials.
And that the backlog is gonna continue to grow
until we can have jury trials,
that's what's really clogging up the system here,
the amicus brief which I would commend
to the court's attention for many reasons.
But one of one thing that they say
that I think is helpful here,
is they know evidence that only about 4 to 5%
of criminal cases even involve a suppression hearing.
So it's gonna do very little,
even if this court were to say,
everybody's gotta get on Zoom and do it on Zoom,
it would do very little to solve the backlog problem-
-: Can you waive the constitutional right
that could be Wingo constitutional right to a speedy trial?.
-: I am not aware of any reason that the defendant
can't waive any of his constitutional rights.
Defendants routinely waive their right to a trial.
So I think-
-: Normally just treated like a continuance.
You you've requested a continuance.
So we just deduct the time from the-
-: Sure, I think that's right under the Rule 36 calculation
at this time,
you cannot count against the Commonwealth-
-: Can I ask about the practicalities if you have a right
to confrontation here,
so we haven't decided
whether you have a confrontation right.
-: That's right.
-: For motions to suppress,
for often as leaves that open.
So how would it work?
How would hearsay
if the right to confrontation applies here,
how do we analyze hearsay?
What type of hearsay is gonna be permissible?
If we agree with you
that the right to confrontation applies here,
I'd like to understand the practicalities of-
-: I think that everybody has been proceeding
on the assumption that the right to confrontation
applies at a suppression hearing.
And I understand that that is an open question
as the court said, and Fontanes is.
But I don't think it would change anything about the way
that we currently practice.
I think the dramatic change would come
if the court endorsed almost view that there is no-
-: How would hearsay?
Cause hearsay is a big part of motions to suppress.
-: I think hearsay has permitted motions to suppress
to the extent that the testifying officers were permitted
to rely on hearsay,
to reach their probable cause
or reasonable suspicion determinations.
And we don't dispute that can continue to be true.
If the police see what they think
is a hand-to-hand transaction and the buyer tells him,
I bought the drugs from that guy,
the officer can testify to that at the hearing.
And it's not a constitutional confrontation problem
because he can be cross-examined about it.
But with the Commonwealth is suggesting,
is a regime where,
and I know they're saying they wouldn't do this,
but that's kind of called comfort here.
They're suggesting a regime where there's no fight at all-
-: What about the informants
and the other stuff that appears
in the warrants all the time.
-: We're not talking about...
We're talking about an evidentiary with witness testimony,
which is not a search warrant hearing.
I don't think there would be a problem
with having a four corners hearing
on a search warrant on the sufficiency
of a search warrant affidavit.
-: Would you agree
if you had a search warrant case
rather than an evidentiary hearing case,
you would have no trouble
with the oral argument part
of the motion being held on Zoom?
Is that right?
-: I would agree with that.
Yes, and in fact,
if the judge in this case wanted to bifurcate the,
the argument portion of the hearing
from the testimonial card and do the argument part on Zoom,
I don't think we would object to that either.
I would prefer to be in court in front of you while right
now it's a little harder to read the room this way,
but it's not...
I think it's for this purpose.
-: We all recognize...
Go ahead-
-: Can I ask one other question
about what we're comparing to,
because your brief compares,
the Zoom hearing to trials
in the old days when we don't,
we have now, if we're in court,
we've got mask, we've got distancing.
I'm not sure Zoom
is worse by comparison to the current courtroom setup,
as it is in your,
you're comparing to the old days.
We're not in those old days anymore.
What do we compare when we do determine
whether there's a violation court as it is now
or court as it was before COVID?
-: I think it's fair to compare it to what would happen
if we were in court,
but I'm not sure.
I don't know that the fact
that participants will be wearing masks
is going to make such a substantial difference
as compared to-
-: Oh, can I stop you there, counsel?
I mean, it,
of course it would make a difference because you wouldn't be
able to see facial expressions,
which I thought was part of your analysis
on why Zoom is inefficient.
-: Sorry, yes.
I think if the judge is wearing a mask
or the defendant is wearing a mask,
I'm not sure that that makes a huge difference-
-: Let's put them in a stand the witness
as would be required will that make any difference?
-: My understanding from the JMAC Report
is that the recommendation is that the witness,
while testifying be sort of extra distance
from the other participants
with an air filter next to them so that they
can take the mask off when they testify.
But I think it's important to understand
that looking at thumbnail images
on a screen and possibly a screen this size,
right, the defendant is in Nashua Street.
So he's gonna get a laptop,
but if you were to bail out,
he would participate in his evidentiary hearing
on a critical motion to suppress evidence on a smartphone.
And the idea that can in any way,
approximate and in court hearing,
I think just sort of defies common sense-
-: Wait can I push you on that?
Because you've said that several times in your brief,
and I wanna know why,
what defies common sense about the concept that on a laptop
from a jail house,
the defendant is not given something
that approximates a courtroom?
-: I think there are several responses,
so I'll try to go through them with the remaining time.
But for one thing,
I think the gravitas and solemnity
of the proceedings is last.
When it happens you could imagine a witness who's sitting
in the comfort of their own home,
perhaps on their couch,
on their phone offering testimony.
I think that feels very different than being in a courtroom
next to a judge in the witness chair.
But it also...
And of course the defendant's ability
as he watches the proceedings
to actually discern reactions is much different.
If he's looking at what we call a thumbnail image,
as opposed to a live person in front of him,
where you can perceive the fidgeting and the nervous ticks
and the facial expressions
in a way that I just don't think you can on Zoom.
-: But why not?
I guess that's my question,
are these things in your brief,
but I don't know that there is a basis for that.
I can tell right now,
who is moving,
what the fidgeting is,
your facial expressions.
Why is that not enough?
Why doesn't it sufficiently approximate given
the pandemic nature of what we're at?
-: First of all,
I think when it comes to the confrontation right
approximation is not sufficient,
but you can't tell if-
-: Decided the confrontation right yet.
-: But if I could just go back
to the difference between Zoom,
you can't tell if I'm tapping my toes right now,
you don't know if I'm twiddling my pencil
or fiddling my thumbs and you would,
if we were in court-
-: In the constitution requires
that I see you're tapping, your toe.
-: I'm just saying that you don't have
the same opportunity to observe
the witness's demeanor as you would-
-: But you just said that all of these constitutional rights
are not absolute.
So I'm wondering what part of the constitution requires
the tapping toe.
-: So this court recognized this problem
with respect to the confrontation problem
in Bergstrom.
And I think the key issue here is that,
and again, I'm assuming now,
and I hope that the court is going to decide
the Article 12 Confrontation Right
applies as I talk about this.
but our Article 12 Confrontation Right,
guarantees the right to face-to-face confrontation.
And that is because there is a deeply held belief
that it is more difficult
to lie when you're facing the person you're accusing.
That's particularly true in a suppression hearing
where the defendant is a percipient witness to the events.
And the witness knows,
if I tell a lie about this,
the person in front of me is going to know it.
That's very different and there's no proceeding
where the witness never has to look at the defendant,
where we can't make eye contact.
I am looking at my webcam right now.
And I'm trying to convey to you the impression
that I'm looking at you,
but in fact, I'm not looking at any of you
and I don't have to,
I can do this whole argument
without looking at any of your faces.
And what our courts have said with the appeals court.
I think it said rather eloquently is that any proceeding
that allows a witness to testify naturally and comfortably
without ever looking at the defendant
and without the fact-finder having any idea
that they're not looking at the defendant,
which is true in Zoom,
that just doesn't suffice.
Another constitutional issue,
I think is the impaired communication between client
and attorney during a hearing.
And this is especially critical again,
because the defendant is a percipient witness-
-: Let me push you on that one,
'cause again,
the new world versus the old world,
right now in the new world,
you're not sitting next to your client.
-: Actually, that's not what I've heard.
The reports that I've heard from trial attorneys
is that they are sitting next to their clients,
their maps class on the table between them,
but that's-
-: You pending a lot of time trying
to get this technology that the federal courts have,
which allow these kinds of,
sort of conversations between the defendant
and defense counsel.
But you're telling me basically in the real world,
we're actually sitting next to each other.
So, okay.
-: But along those lines,
just as camp commander,
up for a minute with Attorney Kiley,
do you agree with the fact findings or the descriptions,
not the legal conclusions,
but the findings that the Judge Haimes made
with regard to how that Zoom system worked for the hearing?
-: I'm not sure that...
I think it's true that there were no
obvious technical gas during that hearing.
I take some issue with Judge Haimes conclusion
that she could tell that the defendant was understanding
the proceedings because I'm not sure-
-: Well, putting aside her conclusions,
just her description of the hearing,
her description of how Zoom worked,
anything wrong with how she described all that.
-: Well, I think that she,
I think that she failed to recognize the problems
that I just talked about the eye-to-eye contact and-
-: Right, and again,
I'm just talking about the mechanics basically.
Did she get the mechanics right?
-: Well, right.
Sorry, I guess I've regarded that as a mechanical issue,
the limitations of Zoom in terms of eye contact.
I, right now, nothing is coming to mind as a particular,
as a particular.
-: But I get back to the communications with counsel,
because that is without doubt a critically important issue.
But when we think about to process
and the flexibility of it,
we look at Abbott A for instance,
in Abbott A it's a 58 hearing
the defendant is incompetent by definition,
the defendant can't have a meaningful dialogue with console,
and yet we find there's no due process violation.
So this is not to dismiss the importance
of that communication, it's critical.
It's to make the point that we have to recognize the world
we're in and there are really no absolute.
-: And again,
I think that what he's asking for here is fairly modest,
He'd just like to wait until it's safe to do this.
And he's the one who is sitting in jail,
waiting for that-
-: Feel about the other governmental interests.
Do you recognize that there's a governmental interest
that the Commonwealth might have
in having the cases proceed in the system?
I know you say it's 4%,
but if someone's family member was murdered,
there was an article in the Herald,
I think yesterday about a family member who was waiting
for a murder trial,
isn't that a government
that Winchester should take into account.
-: I agree that the government has an interest
in moving the case along and the comp and other,
I think it's important to note
we could have this hearing by Zoom tomorrow,
and he's still not gonna have a jury trial
until this point we're saying January,
but who knows?
But I think the other thing that's worth noting here
is that the government has suggested that there,
that they need to move their cases
forward because they can deteriorate,
but they haven't articulated any reason
to expect that's gonna happen in this case anytime soon,
they're witnesses are police witnesses,
they have custody of the physical activity-
-: That again, I know you represent Mr. Diaz.
We have to think about this rule as applied
to every Mr. Diaz, correct.
-: Right, and that's where I think
it's not gonna do much for the backlog
because as I suggested,
it's only four to 5% of cases also,
because as we noted in our brief,
a lot of these hearings did take place
in the last few months in person-
-: Let me ask you something,
the CPCS telling their attorneys not to agree to this,
there's a rule that's coming out of your office,
or is this something left to the individual attorney
into a client.
-: The individual attorney and their client.
Because there are cases,
I think, particularly cases where the key issue
is not gonna be a witness credibility
where defendant might really wanna get is the,
get his hearing as soon as possible
and be willing to do it by-
-: Well, CPCS has certain performance standards
that it's staff attorneys
and people that take appointed cases have
to comply with is this one of them?
-: They have to object to a Zoom hearing?
Frank Gaziano: Right?
No, and again,
because you have to decide it based on the individual
interest of the client and some clients,
even if you have a case
where it's really just gonna be a legal issue,
everybody agrees that the police did what they say they did.
We're just deciding was that legal or not?
You may well want to have that argument on Zoom,
but when the issue is credibility and the fact-finder,
can't be in the courtroom with the witness.
That's when I think we run into this real challenge.
And that's why Mr. Vazquez Diaz wants his day in court-
-: But do you knowledge, is there a uniform policy or not?
-: No.
The policy is always to do what's in the best interest
of the client.
I think the policy that there is,
and I don't mean the details
of this is that if you have a client who wants
an in-court proceeding
and the lawyer is not comfortable with that,
then I think they have to try
to find that client a different lawyer so that,
that the client can have their interest vindicated.
But if the client wants to have a Zoom hearing,
then by all means that can happen.
And that's one other way that we might deal
with this backlog is to try to identify those cases.
What are the cases where everybody is okay with just saying
"Like, let's go ahead and do this by Zoom,"
and let's start with those.
-: Can I ask you a variation on a question Justice Casiano
asked and he may have been,
how do we deal with this in the context of sort of release
from jail pending trial.
Now we've got people,
your client's incarcerated.
We're trying to move this case on, we're not,
the Commonwealth is trying to move the case along,
but your client wants this in-person hearing.
How does this play out in a request to be,
what out of jail at this point,
how does that work?
Do we take that into account at all?
Does it have any role?
-: I think, and I may be thinking of a single desk disorder,
but I think it would be fair to argue that,
the delays occasioned by the pandemic
or a changed circumstance that-
-: But I understand that,
but so the Commonwealth is trying to move the case along
through this alternative procedure,
but your client is comfortable with the delay
in terms of speedy trial,
but say the coin is also pushing the single justice session
to be let out your client's being held on $25,000 bail
or something to that effect.
I can't remember.
So say, I want the bail amount removed
because there's not gonna be any proceeding anytime soon.
Do we take this into account or no?
-: Well, I take into account that he's-
-: Well he's,
well, I guess it's the,
how do you balance all these different competing rights
and interest,
including we've got court officers who are gonna be right
next to the defendant.
We've got other prisoners in jail.
If the person wants an in-person hearing may be exposed
to the court office.
There's just a lot swirling around.
And one of the things your client's gonna have
an interest in is getting out of jail,
pending final resolution of this.
How do we take this issue into account in that calculation?
-: Well, again,
he doesn't wanna have the hearing until it's safe,
so he doesn't want to expose court officers
or other inmates.
I suppose that a judge...
I guess if he moves again to lower his bail,
because of the changed circumstance that he hasn't been able
to move the case along,
I guess a judge could say,
"Well, you refused a Zoom hearing, so that's your fault.
"And I'm not going to..."
I would certainly argue against that,
if that happened in part,
because again,
the real backlog here is that the fact that we can't have
jury trials and that's going to be true,
even if he submits to a Zoom hearing.
Yes, I think the longer that the pandemic goes
on the stronger,
the argument becomes that it's a changed circumstance
for bail considerations,
but that's not really...
I don't think directly presented by this case.
And I know I'm over my time,
but I would like to just spend a minute explaining
the importance of the suppression hearing in general,
because I think this is-
-: Not everybody...
We understand the importance that your client places
on the suppression hearing.
And so please rest assured that we get that past time.
So I'm gonna ask Ms. Campbell to present.
-: Thank you your honor.
Good morning.
And may it please the court Caillin Campbell
on behalf of the Commonwealth.
I first like to start by acknowledging Kathleen Celio,
the motion prosecutor in this case and Chino Sullivan,
who helped me to write this brief.
On March 19th,
elite chief justice,
wrote a letter to the bar and asked us to work together.
And I quote, "To find new ways to protect
"the most vulnerable preserve individual lights,
"resolve disputes, and somehow keep the wheels
of justice turning during this frightening pandemic.
"Conducting pretrial criminal motions virtually
"is one of these new ways
"and something that must be done
"to keep the wheels of justice turning
"despite an ever increasing number of COVID cases.
"Indeed, as the trial court recognized
"just this past Friday,
'additional measures have to be taken to limit in-person
"court appearances and do what we all can to stop the spread
"of COVID-19.
"Cases from this court,
"including the Bergstrom case have recognized
"that traditional formalities of court are not necessarily
"an integral part of protected constitutional rights,
"and a virtual hearing over Zoom
"protects the core guarantees
"of each of the constitutional violations
"the defendant claims-"
-: Before we go forward further with that,
doesn't it make a difference when the defendant says
that he's willing to wait,
he's okay with not having
his day in court with regard to the suppression hearing
until everyone feels safe,
including himself.
-: I don't believe so.
And I don't believe so because I think that gets
to the Matthew's due process type of balancing,
and sure that is an interest of the defendant
before I actually get into the due process balancing answer.
I think that though,
that may be a waiver in terms of one that doesn't protect us
against a later ineffective assistance of counsel claim down
the line that says,
"Hey, my counsel didn't tell me
"that I could be sitting in jail
"for this long,
"and that if I didn't have
"my motion adjudicated at this day,
"it meant that,"
and this is what we've been told in Suffolk Superior Court.
That the cases that have dispositive and important pretrial
will be at the very back of the line for jury trials.
Once jury trials set back up.
So I hear you, but-
-: It's not something that it could be worked
out though with the comprehensive waiver.
I don't see that as being a bar to giving
the defendant when he wants here.
-: Well, it couldn't be a bar.
I think I would caution the court to consider
that likelihood when crafting any rule that they craft.
I also think that it doesn't take into account
the substantial other interests that are at play,
and it's not just the efficient administration of justice,
which my sister points you solely as the Commonwealth
interest in here
we have a constitutional right.
The Commonwealth has a constitutional right to move cases
forward under constitutional speedy trial rights.
And not only that,
it's harder for the Commonwealth
and the Commonwealth is prejudice.
The older its case gets to prove it at prior to trial.
But additionally,
the victim's bill of rights ensures prompt disposition
of criminal cases for cases involving victims.
And there's also an interest in trying to ensure the safety
of our community and that they see that dispositions
of cases are happening-
-: You lose unless we find
there's no Confrontation Clause Right.
In a motion to suppress, correct?
-: I don't believe so.
I don't think you have to go that far.
I think you can find
that there's a relaxed confrontation right
under Article 12-
-: How was that Article 12 relax.
Article 12 was more strict
than the federal constitutional right.
I know 'cause I lost Johnson.
It's face-to-face.
-: It is face to face
it's face-to-face every single case though,
they talks about this face to face requirements says
is face to face at trial.
And there is no case-
-: You're begging the question.
'Cause I said, that's where I started.
If we find that the Confrontation Clause Right,
does not apply to trials,
then we can proceed to due process
what you're addressing.
But until we do that,
you're kind of stuck with the Article 12 face to face.
-: So I think Article 12 "face-to-face"
is really the hardest
issue that has to be sort of undertaken in this case
and the one that really needs to be dealt with.
I agree at the outset with you, Justice Gaziano-
-: It's you either have a Confrontation Clause Right
or you don't.
And if you do have a Confrontation Clause Right
you have a right to "face to face" on Article 12,
correct?
-: Well you, you have a right to face to face.
I think it depends on what the definition
of face-to-face is.
I disagree with my sister with a lot of the factual
assertions that are made in her brief
about the observations-
-: This court involved in the child abuse cases
really shied away from the federal model, correct?
-: Correct, correct.
However, if you look at those child abuse cases,
what you're dealing with is very different technology
than is that play here.
I think it is important to compare
and contrast what happens at,
in trial as compared to what happens
at a motion to suppress hearing because out of trial,
it's the jury,
who's the fact-finder and they have no control
over the video conferencing that's happening.
Here it's the judge,
that's the fact-finder
and the judge is judging found in her decision.
She is the one who has control.
So a lot of things.
-: So your argument for Confrontation Clause Right for motion
to suppress?
-: Yes.
And I would say that there could be a different definition
of face to face
that face-to-face in all practical meaning
of what that could mean is satisfied by Zoom-
-: Is there a recognized
a so-called Confrontation Clause Right?
-: I'm sorry, I didn't hear the first part of that question.
-: Are there any cases that recognize
this novel Confrontation Clause Right that you're proposing?
-: No, but the case law recognizes
that no constitutional right is absolute
and it can yield to compelling interests.
So in so far as we're saying,
it should yield to the compelling interest presented
by COVID-19 and the extreme,
the extreme risk it has for health
and safety of the individuals of those involved that yes,
constitutional right in balance with that interest could
yield to provide an Article 12 light type of a situation-
-: But we don't have to do that...
Sorry, Gaziano are you done?
-: I think either you have a Confrontation Clause Right
or you don't
if you don't have one,
then you can proceed to the rest of the analysis,
but go ahead, Justice Kafker.
I agree,
we don't have constitutional rights have
to give way to each other,
but we don't have to make that choice,
at least in this case because Ms. Kiley is not,
she's recognizing that we treat this like a continuance.
So we don't have a,
we don't have a speedy trial.
We're not backing up against the speedy trial rights.
And we're not forced into this choice between competing
constitutional rights unless you force us into it.
So why should we do that in a case that we don't have to?
-: Well, I guess my answer to that would be two fold.
The first is the Commonwealth doesn't know
of any other instance,
the judge in this instance decided that a continuance would
not be appropriate.
So the question would be whether judge game's abuse her
discretion in making that call.
Now, certainly that brings you
into the constitutional analysis necessarily.
So it has to be reached,
but I don't think that it can be downplayed
that the substantial and compelling interest
that the Commonwealth has in moving its cases forward,
not just because of efficiency,
but because of the extreme difficulty
and in a post-conviction context,
this is recognized that delay has on a Commonwealth.
And that's what I has-
-: But does that really work in as a practical matter
in the real world,
because we don't have,
we got plenty of cases out there,
it's not like
we don't have enough courtrooms right now where we can hold
live hearings.
So we've got people who don't want to do this.
Can't we look for someone who does,
I'm just,
the big picture.
I don't know if you're speeding much along here.
-: Your honor, to answer that question.
The Commonwealth has not found many defendants
who are willing to do so,
and I'd say without guidance and a holding from the court
that it would be constitutional to do so many will be
reluctant to actually, so.
-: But aren't we gonna then get the case where someone
is trying to have all their rights
at once exercised in COVID?
This case, we're not forced to have that choice,
but why don't we wait if someone's saying,
"Let me out.
"Don't deduct from my speeding trial time.
"And I refuse to go into this Zoom hearing."
That that's a different case.
Isn't it for us?
-: That is a different case.
I suggest that you don't wait until the case,
we didn't get to choose which case got brought up here.
This defendant filed this 2-11-3
and I would say that as anyone and you all have been sitting
at a single justice,
it's been pure chaos as to what's been happening
in the course full well.
It's been exceptionally difficult to even get judges,
to follow explicit standing orders,
which state that people should not be having
in-person hearings.
So to say that the lower courts need guidance
and that this should be happening.
As some as that virtual hearings,
as it should be told to the lower court judges that not only
there are they constitutional,
but they shouldn't be happening uniformly.
One of the problems that we have is that there seems
to be wide variety in judges that are willing
to use this technology at all.
And in some courts,
it varies by even judges that happened to be sitting
in that session.
So there absolutely needs to be indication
and guidance from above as to A,
this technology should be used.
And B that it's entirely constitutional,
that it should be used.
Now, the Commonwealth is not saying-
-: One another question is Campbell,
and we don't have an evidentiary record on this,
but the briefs include a bunch of these studies
that outcomes of these virtual hearings,
at least in the immigration context and in bail,
the bail context,
there's a weird effect of having this done by remotely.
And that's a concerning if that's true.
And so do we not have a...
is there a potential that you're more likely to lose
in this virtual world,
at least according to these studies,
and these are some distinguished professors
who've done them,
the diamond study, this, she's the premier,
when the premier people on jury trials in the country.
So how do we deal with that uncertainty?
-: Sure, I'm reluctant to say yes,
because of the,
it wasn't subject to cross examination and evidence wasn't
taken onto it.
So I'd say there,
isn't a developed record to draw that conclusion,
but I do here your honor,
and it's not the Commonwealth contention that these hearings
should take place totally and forever,
that suppression hearing should be virtually.
It's the first,
the Commonwealth is alleging that not alleged,
but the Commonwealth is suggesting that this court permit
these type of hearings and limited circumstances,
and that certain factors need to be met.
The first factor that the judge has to find is that there's
a compelling need,
which COVID would present.
And so it would only be in the instances
in which there is a compelling need.
And I'd stayed that,
if the language in any of the Sixth Amendment
or Article 12 cases,
which recognize that these rights are not absolute
and that they can yield
to compelling circumstances are to mean anything.
Then certainly a global pandemic
in which the gathering of individuals in the small space,
which a suppression hearing necessarily would be,
should constitute such a comparator.
-: But when the defendant waives that speedy trial right,
why is that compelling me that you identified
the right compelling need?
-: Sure, and certainly it is a harder argument
for me to make when a defendant is stating that.
I think that that is only about one factor
that needs to be considered in the whole variety of factors,
which the Commonwealth started to go down.
And I think I finished off with the victim's bill of rights,
but that's just one competing factor that needs to be
analyzed with a whole host-
-: But in this case
this is the victim's bill of rights at play?
-: It's not but.
-: So no compelling need on the pandemic front,
no victim bill of rights,
what applies to this case?
-: Sure, I would, what applies to this case
is the efficient administration of justice,
because I disagree with my sister that the backlog
is just gonna be jury trials,
suppression motions happen
in so many cases.
And there will be a backlog of suppression motions
if they are required to be in person in every single court,
it is-
-: Where is that in record.
-: Where is that in the record?
I think it's just shown by the very nature of this court,
this case itself,
this case was arraigned in May of 2019.
His motion to suppress was filed
over a year ago in November of 2019.
And there's yet to be a hearing in this case.
I think this case is indicative of what's happening
in courts across the Commonwealth,
because there is no mechanism by which there has been a,
from this court stating that holding evidentiary hearings
over Zoom is inappropriate way to go forward.
There were a lot of questions asked of Attorney Kiley
as to whether these are happening in cases,
whether it's CPCS has
a policy by which they object to evidentiary hearings
over Zoom.
And I can at least say
in Suffolk County's experience hardly any,
I think maybe one or two have gone forward in that time.
And certainly that is not-
-: Attorney Campbell, can I ask you the same question
I asked Attorney Kiley and that is of Judge Haimes'
findings, not her conclusions,
but her findings and how she described the Zoom process
and the hearing process.
Is there anything in there that's inaccurate?
-: No, your honor.
And then my other question is when you get
to this face-to-face
very galleys to saying she can argue to the Zoom camera
and not look,
not make guys not make direct eye contact.
To what extent does that exact eye-contact matter
in that confrontation issue?
-: I don't think it does.
And again, it's hard.
This case doesn't fit in neatly with the cases that exist
because they're talking about eye contact
and they're talking about demeanor
in the context of a trial,
which is they're talking about a witness being in a witness
box before jurors,
whether it's six or 12 and the juror's ability
to be able to see that witness's demeanor
to see if he makes eye contact
to see any of those things.
Now, certainly Zoom.
If a judge doesn't have a good enough view
of a person via Zoom,
she could ask them to move back, to move forward,
to speak louder, to turn up their volume.
If I were to look down and start reading,
you could see that I was looking down to start reading,
or there could be questions that were asked
about who was in the room
or what was going on that would really allay some
of the concerns that my sister raises in her brief-
-: This is the police officer looking at the defendant
and saying he consented to the search.
That's the idea, correct?
Cambell: Yes.
-: But it is that when you do that,
consistent with Bergstrom,
Bergstrom says we're watching the defendant's reaction.
We're watching how the police officer.
So in Justice Casiano's facts statement,
isn't the judge looking at both the defendant
and the police officer when making that credibility finding,
and the judge can't do it as easily on Zoom
because they're not looking at each other.
The judges looking at thumbnails too,
it's hard to do.
In, particularly in light of the,
what the language in Bergstrom,
which was pretty specific.
-: First term is specific.
But first term is very specific to trials.
And a lot of what first term is talking
about is the inherent limitations
with the type of video comp video that was used,
in that case,
it was a closed circuit television-
-: That closed circuit
television was not that prevented the child witness
from being in the same room with the defendant.
-: Yes.
And not only that there was a view.
So they couldn't see the view of the chat...
That was the purpose of your honor
and the view of the child witness wasn't that great.
And there were problems with color,
there seem to be distortions.
And that was the case.
-: Let me ask you Ms. Campbell,
this hypothetical then let's say during COVID,
there's a jury waive child rape kit.
We've got con Como versus the MRR in mind
and the enhanced Confrontation Clause protections
under the declaration of rights jury way prior,
and the child witnesses going to testify via Zoom
because of COVID is that a Confrontation Clause violation?
-: It could be, it could be.
And I think the difference there is the difference
between what is being discerned at trial.
And what's being discerned at a motion to suppress.
At trial is recognized that the fact-finder
is determining an individual's innocence or guilt.
At motion is the presence of very different type of,
of calculation that the judge is trying
to determine is whether a particular set
of actions met a legal standard.
So I I'd say it's qualitatively and necessarily different-
-: But it's very similar in that the judge is just trying
to evaluate the credibility of the witness in front of her.
That's true.
I hadn't thought of it in terms of a bench trial.
There's something that gives me pause due to the difference
in what's being decided.
Ultimately, the ultimate decision that a judge
is making as a bench trial is in opposed
to a motion to suppress.
And also when you think of a right to confrontation
to a motion to suppress,
though this court has never recognized
that there is a right to confrontation
in the evidentiary hearing itself,
there are relaxed evidentiary rules.
So hearsay routinely gets in.
So they're already as recognized
this relaxed standard that exists in a motion to suppress.
That seems to suggest that whatever right of confrontation
that you have,
if you have one at all,
it is a relapsed rate of competence.
-: But wouldn't your argument.
Wouldn't your sister's argument rather,
almost turn that on its head and we'd have to start
reexamining our hearsay conclusions
about what we're letting in,
because now we're finding more of a confrontation right
in these motions to suppress.
So that relaxed standard
might not be a good standard to apply.
-: I disagree in so far as I think
that's a standard that's already being applied.
If you look at what's being applied in,
you look at the...
I agree with my sister and said the types of hearsay
to routinely get in at a motion to suppress hearing.
So with this relaxed standard,
I don't think it would necessarily change
the evidence that comes in.
-: It's not hearsay anyway,
it's offered to understand
what the police officer's knowledge was.
-: It is, it is.
-: It's not offered for it's truth.
It's offered for,
to understand the information that the officer acted upon.
-: I'm not sure I understand that.
How does...
Why wouldn't it be offered for the truth that the cop's
testimony at the motion to suppress hearing?
Why isn't it offered for the truth?
-: If the officer is talking
about what the buyer said happened with the seller,
that's offered to the offices and calibrate probable cause.
And even if it's not true,
it calibrates into probable cause.
-: Everybody all set?
Okay, thank you so much-
-: Thank you your honor.