Court Officer: Hear ye, hear ye, hear ye!
All persons have anything to do
before the honorable justices of the Supreme Judicial Court,
now sitting at Boston
within and for the Commonwealth draw near,
give your attendance and you shall be heard.
God save the Commonwealth of Massachusetts.
You may be seated please.
-: Good morning, everyone.
Let me just first remind you,
as you can probably see from the screen,
we are joined by Chief Justice Budd
who is on this panel,
will participate by Zoom.
And before we begin
let me just extend some
a thank you to retired Judge Rufo
for his work on this case.
Many thanks from the Court, Judge Rufo.
And with that, please call the case, Mr. Kenneally.
-: SJC 13116,
Committee for Public Counsel Services and another
v. Barnstable County Sheriff's Office and others.
-: Miss Rossman.
-: Good morning, Your Honors.
Jessie Rossman on behalf of McTell.
With me here today is Attorney Rebecca Jacobstein
on behalf of CPCS.
I will be addressing the eighth amendment due process
and article 26 claims
and Attorney Jacobstein will be addressing
the right to counsel claims.
Justice Kafker: We always ask tall lawyers
to sort of pull that
a little closer because otherwise we can't hear you.
Oops, oops.
-: Probably don't ask them to break it.
That better, your Honor?
-: Courts have regularly held that jails and prisons
have an ongoing obligation to protect incarcerated people
from infectious diseases like tuberculosis,
even after the risks have diminished
in the non incarcerated population,
especially because incarcerated people
and others who are living in congregate facilities
face a continuing risk from these kinds of diseases.
-: Counsel may I ask you a question about
about the tuberculosis cases you cited?
They were,
those are just for screening, symptomatic screening,
weren't they?
Isn't that what the CDC recommends?
Initially, you screen them for symptoms
and then they go from there.
Cause I thought the cases were really about
screening and looking for symptoms.
-: No, your Honor.
Justice Cypher: They weren't?
They were about testing?
-: That's correct, Your Honor.
Justice Cypher: Okay.
-: For example, the Hernandez case,
which is a 2015 case
out of the Northern District of California,
there the CDC recommends testing all
incarcerated individuals at intake,
within seven days for tuberculosis.
The facility at instance there was testing about a quarter
of individuals at intake within 14 days.
And the jail especially relied upon the fact that they
were looking to the numbers in the general population
that was surrounding the jail saying that
there were low numbers of tuberculosis
and that they had not seen any positives within the jail.
But nevertheless, Hernandez held
that the CDC guidelines represented what medical
experts said was necessary to protect incarcerated people.
The jail was not providing any justification
why they weren't -: Okay.
complying with
those guidelines. -: But, in doing that,
those CDC guidelines,
the actual CDC guidelines on tuberculosis
are relative to costs and ability to test,
as I read them.
And that initial screening
for symptoms was the first recommendation.
And then testing is great if you can do it, but it
didn't seem to be a mandatory call for tuberculosis testing.
As I read the guide-
that's how I read the guidelines.
-: Well, the CDC doesn't issue mandates
Justice Cypher: Okay.
-: to any jails or prisons.
-: Okay, so there's no CDC mandate
then on COVID-19 testing?
-: There aren't mandates from the CDC as we understand it
with respect to any practices. -: Guidance.
Exactly it's guidance,
-: But do they give guidance to,
for for specific testing or is it for screening?
Which is different than test-
I mean the screening can encompass testing
but sometimes when we use the word screening
we have to be careful.
We're not just talking about evaluating symptoms.
-: I'm glad you asked that question, Your Honor,
because CDC has explicitly defined screening testing
in their newest guidelines.
This is the March 17th, 2021 guidelines.
And there they're speaking, not to screening for symptoms.
In fact, in that guideline at page 322
the CDC, in the record,
the CDC says that screening for symptoms, alone,
can't stop the introduction of COVID-19 into a facility
because of the incidence of asymptomatic cases.
And as a result, they recommend screening testing as
quote essential to stopping the spread
of COVID-19 in jails and prisons.
And that's at page 318-
-: Miss, Miss, Miss Rossman you, you answered,
I think, a question I had
but let me expand on that.
And that's-
you said that the CDC doesn't mandate
and I think that's, when you read their language,
it's permissive in that and I think you're spot on, on that.
What do we take of that?
When, when we read the first CPCS case and we talked
about regulations in, in that case as something
we should look to.
I'm thinking about some of the
eighth amendment article 26 cases having to do
with sanitary codes, you know, and there's one
in Massachusetts.
I forget the name of the case,
but it talked of sewage, right?
So, you know, the Department of Public Health
says you can't have sewage in the cell, et cetera.
You have to have working drains and running water.
That's black and white.
Either you have sewage
in the cells and improper disposal or you don't.
Here we have permissive language, or
or suggestive language by the CDC
and no guidelines by Department of Public Health that
contradict what is happening
in the houses of correction.
So where does that take us?
-: I think this court can look to the Foster decision also
within the context of COVID 19, for direction.
-: And, and I misspoke, I wrote both of them.
I meant Foster, not CPCS, sorry.
-: I think they, they both spoke to what
we were looking to do in jails and prisons,
but Foster really does emphasize
that true CDC guidelines are not mandatory,
but they are useful measures
of what common decency requires
and what the standard of care
is going to be in jails and prisons.
And here what you have is this,
what our experts have identified,
and the defendants have not reputed this,
is the strongest possible recommendation
from the CDC saying that they,
this is essential to stopping the spread of COVID 19.
And that screening testing should be done
in the jails and prisons.
And just to contextualize that, Your Honor
that language of should is also what the CDC says
with respect to isolating symptomatic individuals.
So that is about as strong
as you can get from the CDC.
Here-
-: Miss, I'm sorry, please finish your answer.
-: I just was going to say, Your Honor, here
the DPH is expressly directing the HOCs
to look to that guidance.
And that's at 390 to 391, 393 and 395.
DPH has expressly said, we are using the CDC guidelines
as our guidance for what is recommended for testing.
DP- CDC says that that is essential
and their own expert, Dr. Wurcel, at 537 to 538
agrees that the CDC is the leading authority
with respect to testing.
So on that record, when the CDC is telling you
that this is what is telling, excuse me
the HOCs that what is essential to stop
the spread is screening testing,
where the DPH and their own expert
are saying they need to follow the CDC.
-: Let me just follow up and,
and I'll give Judge Lowy
on that question
and Judge Lowy the floor.
When you talk about standard of care,
are you lapsing us into a negligent standard
or are you really talking about?
Because here we have experts that have,
they have an expert,
you have lots of experts and, and,
and a lot of it talks about standard of care.
That's negligence.
That's not deliberate indifference, correct?
For when we have a good faith disagreement by experts.
-: Well here, Your Honor, there is no disagreement
on the record, Dr. Wurcel had plenty
of opportunity to rebut what the plaintiffs
and the CDC has said is required to protect people
in jails and prisons,
which is screening testing,
during the months of proceedings
before the special master,
both HOCs and Dr. Wurcel was presented
with the CDC guidelines.
And these affidavits, if you look
at the affidavit from Dr. Wurcel, nowhere, does she rebut
that this is required to protect,
that screening testing is required to protect individuals.
In fact, she says that the CDC guidelines
should inform the decisions of jails and prisons.
And she says that she's reviewed the studies
that the plaintiff's experts relied upon
and she doesn't discount them.
So here there's no disagreement.
Justice Gaziano: Right.
Thank you for that answer.
You've answered my question.
Justice Lowy had a question.
-: Yes. Thank you.
Thank you, Justice Gaziano.
Miss Rossman, obviously we're not required to
follow United States Court of Appeals decisions,
but what's different in this situation
from the 6th circuit and the 11th circuit?
The Wilson case and the Swain v. Junior case.
What's doctrinally different?
-: Well, one of the biggest changes, Your Honor,
is that the CDC has changed its guidelines.
And at this point, the C-, we have more infor-
as everything has happened with COVID-19.
Our, our understanding is continuing to grow with respect
to this disease and what we now know and what the CDC's
medical experts have now determined is
that screening testing is essential to
stop the spread of COVID-19 in jails and prisons.
-: Specifically, though, as
to the subjective component and deliberate indifference.
-: Well in this instance-
-: What do you point to there?
-: The fact, Your Honor, that the CDC has stated
that this is essential.
That HOCs are aware
of the fact that those guidelines are in place.
Their own expert has directed them
that that should inform their decisions.
Their own department of public health has
told them that's what they should be following.
And they have now seen months
of evidence from the plaintiff saying
this is what's necessary
to protect individuals. -: I, I, I
the touch stone is going to be
of deliberate indifference to CDC recommendations.
That's dispositive?
-: I think in this instance, your honor, we're not asking for
a free standing obligation to always follow CDC guidelines.
But this court has already recognized,
and other courts throughout the country have recognized,
for good reason, that because this is medical experts
this provides a useful measure.
And the court said in Foster that the state
the HOCs simply can't ignore those guidelines.
-: Can I ask you about the elephant in the room,
we can't ignore?
Vaccinations, which aren't part of the CDC guidelines.
-: Your Honor, the CDC guidelines came out in March.
So that was at a point in time
where vaccines- -: Maybe I misspoke.
Maybe they are part of it.
But either way it's a check mark in the,
in the respondents column, correct?
-: Look, we would agree.
It is a good thing that vaccines
are being provided in jails and prisons.
But it doesn't remove the obligation to
do things that are necessary to protect individuals
from COVID 19 in jails and prisons.
And, at least as of right now, that continues to include
screening testing.
-: And, and you're aware of the litigation
that's happened around the country
where people in your position in other states
sued departments of correction saying, give us our vaccines.
That's an eighth amendment due process violation, correct?
-: Absolutely, Your Honor.
And again, it is a good thing that that is being provided,
to the extent that the houses of corrections
are focusing on the vaccines.
I would just like to note that we don't have enough data
right now, that's being provided,
to even know how many individuals,
either who are working at the facilities
or who are currently incarcerated in the facilities-
-: You have data about numbers of hospitalizations, correct?
And data about number of positives, correct?
-: That is correct.
Which as of last week was like,
I think like eight people.
-: That is correct, Your Honor.
And of course, under Foster and Helling
we don't need to wait
for more people to be hospitalized or to die.
But critically on this record-
-: [Justice Wendlandt] But do we look at the trend?
-: I'm sorry, Your Honor?
-: Do we look at the trend?
That is the trend is downward.
There has been measures implemented by HOC
and apparently they seem to be working.
And I, I guess I'm trying to figure
out how do I differentiate
between what you claim is an eighth amendment violation
for not following CDC guidelines,
with these numbers?
Like where do I draw the line?
-: I think I can respond, Justice Wendlandt,
to both of you, your question
and to Justice Gaziano, -: Well, that's great.
with respect to, to harms.
We can, two for the price of one.
So, two things.
First with respect to numbers, given the fact
that the HOCs are only testing non-symptomatic individuals.
We know that that is not indicative
of how many individuals are actually infected
with COVID-19 within the facilities.
At 313, the CDC's best estimate is that at least 30%
of individuals are entirely asymptomatic,
but setting aside the symptoms piece
and looking at the harms.
In addition to deaths and hospitalizations,
what we now know on the record,
and this is at 421 to 423,
is our own experts speaking to the dangers of long COVID
or long haul COVID.
And they speak to the science.
And what that science now tells us
is that at least one in 10 individuals
who are infected with COVID 19
will suffer long-term effects from that,
including brain fog, joint pain, fatigue, chest pain-
-: SO HOC is offering vaccination.
Justice: Right.
-: Why isn't that the cure?
And why doesn't that solve
the eighth amendment problem, I guess?
You can't force people to take the vaccine,
but it's being provided.
So anybody worried about long
haul problems
has that option.
Why isn't that enough?
-: The CDC's standard of care, came out
at a time and has continued to be
in place during a time where vaccines are offered.
And they still are saying within congregate settings
that both vaccinations and screening testing is necessary.
And we see that in other congregate settings
that are offering vaccines.
And yet are still doing screening testing.
-: Let's be careful not to take,
when you say congregate settings,
that we're not mixing up guidelines.
Because there's specific guidelines
for the correctional facilities or for the prisons.
And, and they are congregate settings
but they're also not talking about elderly or infirm
people as we are in other congregate settings.
So I think there are somewhat different standards
from what I had been,
or recommendations, from what I had read.
-: It is true, Your Honor,
that the CDC has offered explicit instructions
to jails and prisons.
And it's especially notable
that those instructions,
that are directed to jails and prisons,
that came out after vaccines have been available,
continue to note
to state that screening testing is essential
to stopping the spread. -: They also, they actually
My, again, my reading of them is
that the first recommendation is screening and that
that is something that's a symptomatic screening.
And then if they can afford it,
or if there's a need,
the next tier is testing of everybody who's coming in.
So it doesn't, again it's a recommendation again,
as you've, you've conceded.
-: As all CDC guidelines are recommendations
but I would push Your Honor slightly
on the fact that the CDC explicitly actually says
that symptom screening is not going to be enough.
Because that is not going to prevent
COVID-19 from coming in.
And again, on this record
the HOCs have not put forward a single reason,
scientific or logistical or otherwise,
why they wouldn't be able to implement screening testing.
In fact, exactly to the opposite.
They'd said that they could immediately implement that.
So on that record, given what the CDC is saying,
it is required for them-
-: The CDC obviously is not measuring itself
by a deliberate indifference standard.
They're, they're measuring themselves by an optimal,
you know, from a public health perspective.
Are there any of the cases you site?
And again, we're all shooting at a moving target here.
Any cases that you cite where anyone who
wants can get vaccinated.
I mean, I understand where
this is changing rapidly.
But right now in Massachusetts, right?
Any one of these people has the option
of getting vaccinated, right?
Any person you're defending has a full option to
get vaccinated, right?
-: That's correct, Your Honor.
-: So are any cases that you cite like that,
where you have a universal availability of vaccination
and they still find deliberate indifference?
-: Not that I'm aware of, Your Honor,
but I also think it's not surprising given how
recent the vaccinations have been.
And I will note that, for example,
within the carceral setting, the Bureau of Prisons,
they are making the vaccines available
to everyone and they are still testing everyone at intake.
And here in Massa- -: We're, we're ahead of the
Justice Gaziano: I think I, the HOCs test at intake.
-: No, Your Honor.
In fact, -: Really?
what the record shows is that only,
the vast majority of them are not testing at intake.
They are not regulated.
-: I thought there was a quarantine and testing of intake.
Maybe I misread the record.
-: No, your honor.
If you look at, excuse me,
I want to make sure that I am directing you to
the correct-
-: Don't don't waste.
Don't waste your time.
Cause that's on, that's on me.
I'll look it up.
-: It's at page 23, Your Honor.
-: Okay, I appreciate that.
Thank you.
-: Only four of the facilities are testing at intake.
-: Again, can I keep pushing on this point?
Because Massachusetts is also ahead
of a lot of these other prison systems, right?
Well ahead.
So we're not only providing
universal vaccination opportunities,
but we're also vaccinating many more people.
It's just, just seems to me
that it's hard to find that we're deliberately
indifferent when we've got that combination going.
I mean, I understand a month ago we had a better argument
or two months ago, but just seems like you're swimming
against the tide here of fact.
-: To the extent, Your Honor, I mean,
I want to address why, I think even in the face
of vaccines to this point in time, there's still
deliberate indifference,
but I want to first just make clear.
Yes, this case is in a different position
than when we originally filed in December.
And two, we believe there's still deliberate indifference.
And I'll answer your question on that in a point.
But to the extent this court disagrees and believes
that changes that have occurred between the filing
in December to today has changed the analysis to
deliberate indifference,
just like this court did in Foster,
where it indicated that the testing had changed
between the time of filing to the time of the decision.
And that made a difference in deliberate indifference
to protect incarcerated people in
potentially future pandemics.
I want to emphasize that would be important
for this court to, to point
out the changes that occurred in the record.
-: No, we absolutely have to do that,
because, you know, we have to look at the record as it is.
And just to say what they've done for
for good or ill that-
Rest assured that that's
that's going to happen no matter what the decision is.
Let me ask if there are further questions.
-: Yeah, I just have one follow-up question.
On the Hernandez case, and that is, can you,
you can do this in a 16(l) letter,
but can you point me to where in the case
it was when they allowed the motion
for summary judgment, it seemed to me
they said the treatment
of the tuberculosis identification control
and treatment programs shall comply with those in the CD-
in the prevention and control standards
and for tuberculosis in the CDC.
And then they said, all newly inmates booked in
shall receive timely tuberculosis symptom screening.
I'm still not seeing where they said
that it is testing, that they were mandating.
-: I believe that I know it's the summary, Your Honor.
I, if you give me one moment
I can actually tell you right now
rather than submitted in a 16(l).
-: Okay, yeah.
-: If you look Your Honor,
at page 944 of the case
they start describing what the CDC guidelines recommend
in terms of intake.
And they say in the jails what they are doing is
skin tests are administered 14 days after admissions,
double the seven day timeline recommended by the CDC.
Rather than conducting skin tests on all inmates,
however, the jail only performed skin testing
on approximately a quarter of incoming inmates
for the first nine months of 2013.
CDC guidelines recommended tuberculin skin tests
of all inmates within seven days of admissions.
I agree, it's confusing because
screening ends up getting used
in different ways in different places.
-: Right, but I mean, that's
it's just how I was reading the order
of the judge there, I think.
So, thank you.
-: Your honor.
-: Let me ask if there are further questions of Miss Rossman?
-: Maybe, Miss Rossman, are you addressing
the pretrial detainees?
-: Yes, yes Your Honor.
-: Just one question on that.
Thank you.
So I'm having a hard time.
I recognize even if we're, we're,
as the due process analysis,
applying the objectively unreasonable standard of Kingsley.
And I won't get into that in the interest of time.
Considering CPCS and considering everything that
with the rebuttable presumption and everything
that's occurred in court with an analysis as to
whether pretrial detainees can be released,
where's, where's the essence the gravamen
of this claim, as it relates to pretrial detainees?
-: So our claim with respect to pretrial detainees are,
just to clarify,
this may be implicit in your question,
includes both testing and the release authority.
So I think all of the arguments we've been discussing
with respect to testing apply with-
-: I understand, including the discretionary
determinations as well
-: But with respect to the releases, Your Honor,
CPCS decision spoke explicitly
to what the trial courts could be doing.
They did not end up speaking.
The court did not, excuse me, ended up speaking
to what the sheriff's could be doing with their authority,
because there,
there was no constitutional violation alleged.
And the court said that that was not within its authority.
Nothing within CPCS negates the need for the sheriffs
to be exercising their own authority to evaluate,
just evaluate, even
individuals who are eligible for release.
And what we know on this record is the vast majority
of HOCs aren't even conducting that evaluation because they
either don't have a program or they have suspended
that program during the period of the pandemic.
-: The statutory discretion,
doesn't that al-
include the discretion not to
utilize the statute or no?
-: Well, certainly not under 49, section 49, Your Honor,
which Foster ended up confirming in, 49A
imposes a requirement on the commissioner to
establish committees to evaluate individuals
for their eligibility for release under that program.
And I understand that 49 is home confinement
and not pre-trial.
But the reason why I raise that here is,
the release authority goes to
not just the individuals who are being released,
the real crux of the claim
with respect to release authority is that
that is the only thing that can enable the people who remain
in the facilities to be able to physically distance.
And so with respect to the pretrial detainees,
their claim, with respect to releases,
speaks to the Sheriff's failure to exercise their authority,
not just under 20B, but also under 49
with respect to sentenced individuals.
Because if more sentenced individuals end up
getting released under that authority,
that will increase their ability to physically distance.
-: And before you sit down,
let me just ask Chief Justice Budd if she has a question.
Justice Budd: All set, thanks.
-: Thank you, Chief Justice.
Thank you Miss Rossman. -: Thank you very much.
-: Miss Jacobstein.
-: Good morning, Your Honors.
I'm going to move this, I guess back towards.
(static) (laughter)
-: I feel your pain.
Just bend it toward you.
-: Good morning, Your Honors, Rebecca Jacobstein for CPCS.
I'm here today asking this court for something
that we don't really want,
but that we feel that we still very much need,
which is video conferencing options
for attorney, client communications
in the Essex and Bristol County
House of Corrections and jails.
Attorney client communications must be effective
for council to be effective.
Without meaningful communications, attorneys
can't do their jobs and clients do not receive
the constitutional guarantee of the right to counsel.
Normally in person contact visits are constitution.
Well in person contact visits are constitutionally required
and usually that's sufficient.
But, not now.
What in-person contact visits provide
are document sharing and third-party access
as well as the ability to
gather trust and a rapport and make a connection
with your client who is alone and has no one else
who can visit them.
The majority of counties right now
are providing video conferencing.
And that includes screen-sharing and third-party access.
And that's what we're requesting,
because that's what most closely approximates
in-person contact visits.
-: Is this something we can do as part of our superintendence
as opposed to saying it's a constitutional violation?
-: Let's see,
I'm going to go with yes.
(laughter)
I mean, the reality is is that it's the burden
of the state to provide counsel and
CPCS that's our, it's, you know,
our raison d'être, right?
We want to provide counsel, but we can't, if we're stymied,
so, yes. -: Let me ask you
a follow-up on that one.
Is, and I assumed your answer was going to be yes,
but let me ask you a different question.
Are you aware of cases that say that bad contact
opportunities don't meet constitutional criteria?
In that and by that, I mean, non-confidential,
there's too many people talking at the same time,
and that you have the awkward situation where
you can't exchange documents.
You have to ask the CO to come and, and, and, and
and relay the documents.
So there's an opportunity for, in-person,
but your position is,
it's just not good in-person contact, correct?
Or, or ineffective, or ineffective.
-: Right, I, I hear what you're saying.
I don't have any cases that say-
-: Because I'm worried about the, you know, you know,
you have someone, like let's say it's a
child sexual assault case
and they don't want to talk
about their case with the other person in earshot.
Correct?
-: Correct.
-: So, but do you have any cases that say that, that, that
that it needs to be truly confidential?
-: I don't think there are any cases that distinguish
between partially and truly confidential.
I think either it's like being pregnant,
you're either confidential or your not confidential.
There are cases that say non-contact visits are not enough.
And off the top of my head,
I, I can definitely provide those for you,
they are in our brief, but I don't remember.
-: No, if they're in your brief, you don't, well
I'll find them.
Don't worry about that.
-: And I, if there's extra, what I can-
Justice Kafker: Can I push you on?
Sorry, are you?
Justice Gaziano: I'm done.
-: Can I push you?
So you can get vaccinated?
Your clients can get vaccinated.
You can put on your mask.
You can insist your client is wearing a mask.
You have the option of meeting in person.
We're still gonna find,
at this time, with those options that
the right to counsel is being deprived?
I mean, it just seems like, again
it's an uphill climb with vaccinations and masks.
Even if we have people who aren't doing it.
You know you're protecting yourself
from those people by being vaccinated
and by wearing your mask.
I understand you may not feel 100% comfortable
going in there,
but you can also use the phone sometimes
and space out those personal visits.
So just help me out here on that.
-: Sure.
We are vaccinated and
we would hope that our clients
are getting vaccinated,
but there is definitely
a great disparity, in Massachusetts and everywhere, really
but specifically in the Massachusetts, as well.
Where certain people are getting vaccinated
and certain people are not.
And the people who generally are not getting vaccinated
are generally the people that are ending up in the jails.
And also the correctional officers
have a high refusal rate.
That is demonstrated by the record.
We don't know what the rate of vaccination is
for the correctional officers.
But the reality is is that we can be vaccinated
and we are vaccinated.
I don't know about our-
-: And you can also inform yourself
of whether your client is vaccinated.
The person you're sitting in that hot room with, right?
-: I mean, we can ask, but,
I don't believe walking into the room and saying,
"Hi are you vaccinated?" is the best way
for me to introduce myself to a new client.
-: [Justice Wendlandt] Do you think
video conferencing is better?
-: For now.
This is just a stop gap measure to get us-
-: I guess, you know, just following up on
Justice Kafker's question,
if you're vaccinated and
you can ask your client if they're vaccinated,
and there are places where you could meet, confidentially,
why is it a constitutional problem or
constitutional necessity to provide video conferencing?
-: There is no place where we can meet confidentiality,
confidentially without contact visits.
The non-contact visits are not-
-: No, yeah, I'm talking about the contact visits.
The contact visits, where you say "I'm vaccinated,"
your client, you ask your client, "Are you vaccinated?"
There's no, no room for, for those visits?
-: Absolutely.
-: Okay.
I mean absolutely there are
-: Where does the constitutional line get drawn,
If you have that option?
Why, why does, why does the Constitution
require video conferencing?
-: The Constitution requires video conferencing
because right now not everybody is,
is at the pri-, at the jails are vaccinated.
And because there are people who cannot go in,
even vaccinated, and be safe at this time.
And because there is still-
-: [Justice Wendlandt] Where is that in the record?
-: Well there is an affidavit from Mr.,
Attorney Hernan at 184,
where he says that even vaccinated
that he has an underlying condition
such that he cannot go,
well, at least I think
he may say he does not feel safe going into the jails.
-: [Justice Wendlandt] And he practices in Bristol and Essex?
-: Essex.
-: Can we?
Justice Kafker: Did he ask for
special dispensation of any kind?
-: I'm sorry, I did not-
-: Did he ask for any special dispensation?
Saying, look, I'm different from your other lawyers.
I've got, I don't know, what is, I mean I don't want to get
into his personal health issues,
Rebecca: I didn't ask.
-: But, I mean, you know,
is there no accommodation there for that kind of problem?
Are we going to create a constitutional right for these kind
of exceptional circumstance? -: Here's the problem,
Your Honor, for the time that,
for the attorneys who can't go in,
because I think we all recognize
that it is low risk when you're vaccinated.
But it's not no risk.
And there's still transmission in jails,
even with vaccinated folks.
Which is why they're still requ-
the CDC is still suggesting testing
and why the governor is still requiring masks there.
We are in this courtroom.
I am six feet away from everybody, right?
Everybody-
I mean to get in, we had to be vaccinated.
And except for me, everyone in here is still wearing a mask.
These are very small rooms.
-: But that's not the science.
(laughter)
It has nothing to do with the science.
It has absolutely nothing to do
with what the CDC is saying today.
You're telling me that there's a constitutional right
to video conferencing when maybe there's one-off
attorney who has a special issue that could ask
for a special accommodation.
I want to know why the constitution
requires video conferencing.
And you're not telling me.
-: The con- well
-: You're just saying here,
we are all sitting here with masks.
Well, that's not the science.
-: If the attorney needs that accommodation,
it has to be in place.
These places don't have it. -: Right, but that's a one-off.
I mean did that attorney ask for accommodations?
-: Has he?
-: Yes
-: No.
-: Okay, well that's a different case.
-: I mean, not that I know of.
-: That's a different case.
You're asking for a global solution.
I'm wondering why there's a requirement-
-: I'm asking for a global solution, I mean, first again,
I mean, this court is aware that when I,
we started this, I, there were five counties that we sued
and nobody had vaccinations and
and there were five counties that did not have adequate.
Three of those counties have stepped up.
So now we're down to two counties.
-: And, and, and, and the Essex court,
the Essex county situation,
they do have video conferencing.
It's just not good video conferencing.
Is that correct?
-: Yeah, it's like really expensive FaceTime.
-: And it's also a, were, were they the
institution that was going to get
upgraded to JurisLink or was?
-: No, that's Barnstable.
-: That's Barnstable, okay.
-: And council, just following up
on Justice Cypher's,
in Bristol talks about that they don't have the,
essentially the the highway to be able to do this, right?
The bandwidth to do any one of these
video conferencing platforms that have
been implemented in some of the other houses of correction.
I guess, at what point do we say,
we're just telling you go out and do it
as a matter of constitutional principle
whether or not it's feasible,
whether or not they can actually do it.
-: Certainly, your honor, if it wasn't feasible you,
that would not be acceptable, but they,
it's not what they say.
They say they don't currently have the hardware
and they don't currently have the bandwidth.
We put in the record of the affidavit from Hampden County,
when they were explaining why they didn't have it.
And all the obstacles they had,
there's an Air Force base blocking their cell tower stuff.
And they still were able to make it happen.
So to the extent that the record says that they don't
currently have it, which it absolutely does,
it, what it does not say is as
we tried to get it and we can't,
or we can't get it at all, all it says is
is we don't have it.
And it's more like we don't have it,
and we don't have to, so we're not going to.
But back to Justice Wendlandt's question about
why this is, why we need a broad-based con-,
why I'm asking for systemic relief as opposed
to relief in individual cases.
Beyond the fact that I need the,
everything needs to be there
so what, when the individual cases come in
the system is set up,
is because they're just,
they're not ready, right?
It's just that for the people who, who can't go in,
because the science, I agree with you,
it does say low risk, but that doesn't say no risk.
-: And so what, what do we do with all the teachers
and the other essential workers and the firefighters
and the police officers who face the same situation?
Or a similar situation?
There might not be in a, in a prison situation,
but they're doing their job and they're still at risk.
-: It's a good point, Your Honor.
But we're trying to do our job
and the jails are interfering,
and no one is interfering with them, right?
This is what we need to do to get past COVID.
And not forever, just in, it's just for now.
Just until we can get to where we need to be.
-: But what if the state of VR changes?
I guess what I'm, my concern is be-
Some of the avenues aren't the best avenues.
They aren't the avenues that perhaps the majority
of the defense lawyers would like,
but they are avenues nonetheless.
And there might be individual situations where
folks have personal things that may not
they might not want to avail themselves to the avenue
of the contact meetings that they could have,
but suppose, you know, 10 years from now,
or five years from now
we're unfortunately in another kind of situation
like this and the state of the art has changed.
And now there's new, better, better technology.
Do we say that now we still have
another constitutional infraction?
When we say they don't have the latest and greatest.
-: No, your honor, if we can walk in, we should.
And if we can walk in, we will.
But right now, what we need to do is, is we need to-
Because jury trials are starting
and we need to be prepared.
And without having the ability to have people meet
with the experts, because that's the other thing
that I did want to mention, that we cannot force
our experts to walk through those doors.
And we cannot, and that goes also for interpreters.
So, because they don't work for us,
they are, they're third party contractors.
And those are also people we need to
be able to provide the right to counsel.
-: Didn't I see, in the, in the record somewhere that some
an attorney made an motion to have,
have a client moved to a different facility.
So he could-
Is that something that's not
feasible?
-: That attorney, that, it's-
That particular client had a pending case
in Norfolk county.
So he could also be in Norfolk county,
but without pending cases elsewhere, I don't think so.
I'm not at as of the time of this record,
that client had not been moved,
even though there was a court order for it.
-: And moving detainees is not a good idea, as far as,
-: That is also not ideal.
-: As far as COVID transmission goes, correct?
-: Right now, the CDC is still recommending that you
limit movement within the facilities,
this is the transfers between facilities,
the staff within the facility, they're
they're suggesting, you know, minimal movement.
Which is also another reason
that we would like to not go in and, I mean-
-: And that's the same reason you don't want to go
to the courthouses as well?
-: No, we definitely want to go
to the courthouses, Your Honor.
-: No, not you.
Well, we don't want to subpoena, summons in,
prisoners to meet in courthouses,
to alleviate that.
That's a bad idea, too.
-: Right, I mean right now the court had the
updated trial court
guidance requires that it's one person per cell,
unless they can physically distance within the cell.
And I can,
I mean, I don't know how many of these
Justice Gaziano: That's, that's, that's really not
on the table either, correct?
-: I'm sorry?
-: That's not on the table either,
using our, our, our, our holding cells.
-: Well it appears that that's not,
doesn't work very well because.
-: I'm agreeing with you,
so you just take it and run with it.
-: Yeah, I mean, it's just, it used to be
that we had a ton of people down there.
A ton, and it was not ideal.
-: Can I ask you a follow up question on your mantra
low risk is no is not no risk?
What, what, what is that?
Where does that fit in to the Constitution?
Like, is it required by the Constitution
that there be no risk in meeting?
So, so how low does the risk have to be?
You said we're vaccinated.
I'm assuming you mean the lawyers
at CPCS are vaccinated.
So, so now they're all low risk, you know.
Except for people who have specific conditions, how
how low does the risk have to be?
-: Well it's low for us, and it's also low for our clients.
I mean, I can't, I mean, for us, you know,
to not give it to them, that's what I'm saying.
But I think that what I'm saying is, is that I
can't say it has to be, you know, 2% or 1% or 5%.
-: But you're comparing it to no risk.
So, and you're admitting
that no risk is not required by the constitution.
So I-
-: I can't imagine that it is,
but I think that the point though, is
is that as we're trying to get back to a point
where everybody can go in and speak to their clients,
in the interim, as we're getting there,
we need this as a stop-gap measure.
And that's because right now, the,
the place that we are in the pandemic
is just a place where hopefully we're
on this great downward trajectory and it keeps going there.
And none of these variants make everything turn left
or what have you, but we don't know.
It's unpredictable.
And as we're ramping up and getting there,
just for now, we need this.
Our performance standards are not changing,
but until this, the science is really clear
that there's not transmission either way.
And that this is a safe thing to do
and you're not giving it to your kids
and you're not giving it to your immunocompromised mother.
These video conferencing needs to be options.
And that's what we're asking for.
-: Well, let me ask for further questions
and, and also if Chief Justice Budd has any questions?
-: All set.
-: Thank you, Chief Justice.
Any further questions?
Thank you, Miss Jacobstein.
-: Thank you, Your Honor.
-: We have Mr. Bair by video.
-: Good morning.
My name is Dan Bair and I represent the 13 sheriffs
of the Commonwealth of Massachusetts.
If it may please the court,
in two weeks, the state of emergency
in Massachusetts is going to be lifted
pursuant to the governor's order.
Already mask mandates are being eased.
Venues are reopening.
In the 14 months since the start of the pandemic,
the court has solid historical data on the HOCs responses
to the pandemic and the state of their facilities.
In March of 2020, when the pandemic hit,
the call came and the Sheriff's offices answered.
They're very proud of their responses.
Where there was an elevation in COVID cases,
the HOCs were swift to
contain it and to mitigate the effects.
And the results are frankly remarkable.
From March 2020 to June of 2021,
there have only been two deaths in al-
throughout the 13 facilities
and none since June of 2020.
Equally, and probably more remarkable,
is there have been only
13 hospitalizations because of COVID.
Every single inmate in every single house
of correction has been offered the vaccine.
The houses of correction have engaged in
considerable amounts
of education, both of staff and inmates.
And it continues to be offered.
This vaccine which is upwards of 90% effective.
The pandemic is waning,
yet the appellants claim
that the HOCs have been deliberately indifferent
to the substantial risk of harm to inmates from COVID-19
because they have not instituted
serial screening testing.
And what that means is-
-: If I could just interrupt you for a moment
I think the argument might be along the lines
of you really can't manage the risk
and there's risk beyond hospitalization and death,
if you can't measure the risk.
And that there's no rationale that's been forth,
put forth as to why not have broader testing.
And the point one of the attorneys made Miss Rossman,
perhaps, made is that even with people who are asymptomatic,
or have a mild case,
it looks like people
some people have really long-term serious effects.
So the question really is not
whether you've done a good job.
It seems like you have,
but whether or not everything's being done,
that's constitutionally required.
When people have to be this close,
they have to live this close to each other,
unlike other folks.
And you're sort of
blind in the sense that you can't measure the risks.
So it's hard to manage them.
-: Your Honor,
I, I would just point out
that the Department of Public Health, when the, when
when the pandemic started,
assigned to each house of correction
their own dedicated epidemiologist who reviews data
and makes recommendations on mitigating strategies
and testing strategies.
They, they, the Department of Public Health follows
the guidance of the CDC.
And that's what it is.
It's guidance, it's consideration.
It's what, what, what the appellants want
is they want one size
you know, one size shoe fits all.
-: Yeah, I didn't understand that in the briefs.
They say you're not following the guidance.
And you say you are and I, I'm confused by that.
-: Your honor, it's we are following the guidance.
The guidance does not mandate
serial screening testing, and, and
-: Well, the guidance never mandates anything
because the CDC can't tell states' authorities,
in their jails, how to function.
So they issue recommendations.
And your saying, Department of Public Health says,
follow the recommendations.
And I think council's point is that you're not doing that
because you're not doing serial screening.
So now can you explain how you are following
CDC guidelines
Dan: Certainly.
-: when DPH is saying follow the guidelines
and you're not doing the testing
-: Your Honor, the Department of Public Health made it clear.
They've never recommended to the,
to the houses of correction
to conduct serial screening testing.
-: Have they recommended that you follow the CDC guidelines?
-: They, they, yeah.
Your, Your Honor,
what they do is they make recommendations based
on the individualized,
you know, the specific-
-: I guess I, you know, just to clarify the record,
I mean this would be great to get an answer on.
Does Department of Public Health say
follow the CDC guidelines?
Because I saw those guidelines
and those guidelines say, do the serial screening.
-: What they say is they can be considered, Your Honor.
Our, our expert, Dr. Alysse Wurcel, spoke with the CDC.
And they said,
-: And she said don't do the serial screening?
-: What they said was they are guidelines.
We're not recommending serial screening, specifically.
It's whatever, based on the specific facts
and circumstances in each individual facility.
You know, it's not this isn't a lack of testing, Your Honor.
When the C-, when the Department of Public Health
has recommended a certain testing strategy,
this the, the houses of correction have done it.
We test symptomatic inmates.
We test close contact.
We do treat them.
-: I understand that you've done a lot and I'm not
I'm not quibbling with that, I guess.
I just would love the answer to this question.
CDC recommends serial testing, correct?
-: Correct.
-: Okay, and DPH says follow the
CDC recommendations, correct?
-: Yes, but they, but they, they haven't told us
they haven't told us to initiate screening testing.
If they did, we would do it.
We would implement it.
What they have done is,
based on data coming in from the specific
house of correction, they've
they've recommended facility-wide testing
and follow-up testing, targeted housing testing.
The problem with, you know
with serial screening testing, it's just a snapshot.
And it provides a false sense of security.
What we're doing is, what we're doing is,
we're following the guidance
of the Department of Public Health.
They are the experts.
If they told us to engage in serial screening testing,
we would do it.
And, and Your Honor, I would also say 14 months
of data proves that our approach is correct.
I mean, we only have 13 hospitalization
of inmates, throughout.
We have, I believe six or no, seven houses
of correction that have had no hospitalizations.
We have two houses of correction that have no positives.
And I would just say too,
while some of the houses of correction
have instituted testing on upon intake,
all except for one, or except for two.
So 11 out of 13, quarantine the inmates
for 14 days upon entering their facility.
So we are testing, we are vaccinating,
and there is a dispute, obviously.
Our, our experts, the CDC and doctor,
or I'm sorry Department of Public Health,
and Dr. Wurcel have not recommended serial testing.
Their experts say that we need to do it.
I guess the question ultimately is,
does that amount to deliberate indifference
or a total lack of essential care?
And the answer is no, absolutely not.
I mean, the proof is in 14 months
of historical data.
And now they want, as the pandemic's ending,
we have inmates who have endured, you know
iso- being isolated, not having the visitations,
just as these restrictions are easing up,
just as we are attempting to convince them to be vaccinated.
And, and a lot of inmates have been vaccinated
and a lot of staff have been vaccinated.
Now we're gonna, now we're gonna institute
an invasive test once per week?
So, I mean, there's a lot of reasons.
-: Can I just clarify?
Because sort of the followup question to
Justice Wendlandt's sort of sequence
of questions, you know,
obviously it would be better to test more, right?
I'm just trying to understand the, the logic,
the reason for not testing is, is it expense?
Is it, as you say, a false sense of security?
I'm just trying to understand the ra-
Cause it's difficult to argue
that more testing isn't better.
Whether it's deliberate indifference,
I have a great deal of skepticism about.
But what is the ra-
Is it the record contain a rationale of why
you don't do that type of testing?
-: Your Honor, I would. (crosstalk)
I'm sorry.
I apologize.
-: No, go ahead, sorry.
-: I would say it's a combination of a lot of factors.
One of them certainly is,
it's and, and and DPH speaks to it when,
in their letter that they submitted,
when they talk about why they,
in certain occasions, directed
the houses of correction to conduct, you know
a facility-wide testing of all inmates and staff.
They did it based on the specifics, specific cases.
And it was only a snapshot.
And that's all that this is.
I have no doubt in my mind that if the DPH
or the Department of Public Health felt that that
that there was an elevation that they would
they would increase testing
and that they would recommend it.
Just because, you know, there,
you have something in your toolbox
doesn't mean you necessarily use it.
There's a whole, you know, with, you know
with respect to medical treatment,
there could be a whole slew of different, you know
different treatments that you use.
You may not go to the bone marrow transplant.
-: I'm not asking you to speculate.
I'm just trying to sense when again,
when we dig deep into this record,
which is a large one,
is it going to become clear why there's,
that decision was made?
I understand you're not mandated to do it
and there's some flexibility there, but it seems
like it would be a good idea, but you don't do it.
I'm just trying to get a sense of,
is the rationale going to appear to us
in the record rather than you speculating what it is?
-: What I, what I can say to you, Your Honor, is
the Sheriff's offices aren't making
these medical decisions on their own.
They're following the guidance of the experts,
Dr. Wurcel and the Department of Public Health,
and that the experts are not telling-
-: I mean I, and I'm relying more on the briefs,
because I haven't read the whole record.
But I think there's a back and forth.
Your opposing counsel is saying,
Wurcel doesn't say don't test.
She just says, you don't have to test.
There's a difference between those two, isn't there?
-: Um.
-: She may be deciding she can't put this burden on you,
but she's not telling you not to test.
Your make-
She's leaving that decision to you, right?
-: And, and what I'm saying is,
and we leave it up
to the experts to tell us when to test.
They're the experts.
The Department of Public Health-
-: If she's your expert, and she's leaving it to you,
you're not leaving it to the experts.
You're making the decision yourself.
But I'm just trying again, to understand the rationale.
And you may have a very good one that you don't want to,
you know, do.
It may cost too much.
It may involve too much staff time.
I just don't know what it is.
I'm just trying to understand
if there is a rationale in there.
If there's not, you know, I, I don't need it.
-: No, I understand what you're saying, Your Honor.
And, and, and I guess the, ultimately the rationale is
that the Department of Public Health has not
recommended that type of testing.
They've recommended basically all the other types
of testing and they haven't recommended that.
-: I'm afraid I'm still confused.
I thought that,
and maybe I misunderstood the response
to Justice Wendlandt's questions.
I, I thought that the CDC
does recommend serial testing
and that DPH is saying follow the CDC.
So I'm still confused on, on, on your position that-
I understand DPH hasn't ordered the sheriffs.
I understand that the executive branch has not elec-
ordered sheriffs, elected by county,
to engage in serial testing.
-: I would, I'm sorry, Your Honor.
Justice Gaziano: Go ahead.
-: I would first say that
guidelines are considerations.
Things to be considered and when,
so when they say that we've,
we're telling you to follow the guidelines
it's something to be considered.
They've obviously considered it
and they haven't found it necessary to recommend
to us to institute serial screening testing.
Again,
-: When you say, they, just to clarify,
-: I'm sorry, the Department of Public Health, Your Honor.
I apologize.
-: Counsel, do you know if the
Department of Public Health has recommended serial testing
or screening testing for other congregate settings?
-: I know that they've
they have ordered it for long-term care facilities.
I do not know
if they've ordered it for the Department of Correction.
I don't believe so.
Justice Cypher: Thanks.
-: Is that in the record, Mr. Bair,
as far as what what's happened at the DOC facilities?
-: Your honor, I just, just in the sense that, that
that the courts receives a special master's
report every week on what, what they've done.
Other than that, there's, I
I don't have information on that
-: But does, I know anecdotally, but
and they're obviously not parties here,
but is it is it part of the record as to what the
whether a DOC does screening tests?
-: I believe that they
they are doing serial screening testing and that's-
-: So do, so do I, but is that part of the record?
-: I'm not, I'm not sure, Your Honor.
It may be somewhere in the record.
-: And is DPHs response to the DOC
part of the record, as well?
-: I don't believe so, Your Honor.
I don't believe so.
Just moving on,
another avenue that the appellants have taken
in attempting to show deliberate indifference is
that the houses of correction have failed to exercise
their discretionary authority to release
more sentenced inmates.
First of all, they're not being,
I wouldn't call it released.
I would call it,
there are certain programs pursuant to
chapter 127, section 49 that allow
for an inmate to receive a GPS monitoring device,
and then either home confinement or sober housing.
Each, each facility, there's,
currently there's only five facilities
that are operating those type of programs.
And the individual there's an
individualized evaluation done, which is required
by law in order to
determine eligibility.
In this case, the houses of correction have
released the inmates that they deem able to release.
First of all, as far as the pretrial detainees,
the trial courts have vetted each
and every one of these inmates.
-: We're talking about, we're talking about
people that are in custody, not, not pretrial detainees.
I thought we were pretty, I thought we were pretty clear
in Foster that that was a strategy
that the custodian should implement
to reduce the numbers
of, of people in the congregate setting.
-: Yes, Your Honor.
What I would say is-
-: Wasn't that, wasn't that message heard
from when we said it in Foster and if not, why not?
-: As opposed?
I'm sorry, Your Honor, I'm,
Is it, are you talking about the pretrial detainees
or the sentenced inmates?
-: Sentenced inmates.
-: Your Honor, it, it was heard.
And, and, and what I will say is that,
first of all
I think it's seven or eight of the, I'm sorry,
six of the houses of correction did not have any programs.
And I think it's, I think it's a tough ask
during a pandemic for, for a house of correction
to institute a program like a GPS monitoring device.
Not only that, there's no,
for example, sober housing is one
of the alternatives that is used in Essex county.
-: But wasn't, wasn't that one of our,
tough, tough or not, wasn't that one of our asks?
In Foster?
-: And Your Honor, yes.
And I would say that that the
Sheriff's offices have evaluated.
I'll give you an example.
In Norfolk, for example, they suspended
their GPS monitoring program because of COVID.
Because that, they would
they would have to use, utilize officers to,
to monitor the inmate.
Now, in the record itself, it talks
about that they conduct,
even if they conducted their evaluation today
of the 67 sentenced inmates,
none of them would be eligible
under the objective classification
evaluations to be released.
So, what I'm,
what I'm saying is they've released everyone
that can be released.
And we're not going to sit and try to release
more individuals that are not suitable for release.
As far as, as far as and additionally,
Your Honor, we've, we've released almost 4,000.
Actually it's as of the 27th, it's over 4,000 inmates
that and obviously
the vast majority have been pretrial.
Parole, the parole board continues
to come in and evaluate inmates
for release on parole.
Where we can release inmates safely both,
you know, in,
in the sense of the health and safety
of the inmate themselves and
the community at large, they have.
For, for example, for, for
home confinement for example,
there has to be a home for this inmate to go to
for a home confinement.
And a lot of cases there has to be
someone that's willing to take them in.
-: But that presumes that the Sheriff's department
has set up a home confinement program.
So if they haven't set it up,
how is this analysis taking place?
-: I absolutely agree Your Honor,
that it hasn't taken place
where there isn't a program.
But what I'm saying to you is I think it's just
-: But I just can't see how you can say to us
that some people are ineligible for home confinement when
some of the sheriffs haven't set up home confinement
programs, not withstanding our message in Foster.
-: I I'm sorry, your honor.
I was speaking specifically
to Norfolk county that had a program and suspended it.
And that of the 67 inmates that they currently
have that are sentenced, that would be eligible,
none of them are eligible, even if they had the program.
-: Does the statute require that you, as,
I think you had mentioned in a previous answer,
an individualized determination as to
whether or not to utilize a program like home confinement?
Or is it discretion as to
whether or not to even have the program?
-: I would say that (crosstalk)
-: Go ahead, I'm sorry.
-: No, I apologize.
I would say under section 48, they have to have in,
obviously they have to have in-house programs,
education, training.
Section 49 makes the creation of an outside program,
like a sober housing or a GPS, optional.
If such a program is implemented,
then they absolutely have to have objective criteria.
And if you review the record, those houses
of correction that currently have such a program,
evaluate inmates periodically,
some on a weekly basis to see if they are eligible.
And obviously, Your Honor,
some of these programs don't reach.
They don't go as far as home confinement.
Some may be work release, where the inmate comes back.
Obviously those types of programs were shut
down during the height of the pandemic.
Things are opening up.
And, and I think the record reflects that some of the
some of the houses of correction,
based on the data, have reopened some of these programs.
And again, going back to, in the height of the pandemic
there weren't places for people to go.
There weren't shelters, there weren't sober housing,
no one was taking anyone.
So for those houses of correction that did
institute this discretionary authority,
you know, it was,
that they placed the people that they could
when they could, obviously.
And a lot of the sentenced inmates
and a lot of the pre-trial inmates, frankly,
have not met, you know, the standards.
They, they, they have one of the, they they've been
either convicted of, or have been, you know
charged with one of the enumerated offenses,
whether it be domestic violence, murder, something
along those lines and there's, or they're risks of flight.
And so that they're, they're not being released.
So I basically, I, I think
that the court in Foster did state, you know
absent some sort of a constitutional violation.
They weren't, they weren't inclined at the time to
you know, to exercise their superintendence power.
And I don't see,
I don't see a constitutional violation
whether an eighth amendment or, or
or a due process violation here, Your Honor.
Perhaps we should move to the Essex
and Bristol County communication,
lawyer communication issue.
-: Your Honor, I would state that currently
Bristol and Essex are open for business.
They offer in-person both contact and non-contact,
there's no obstruction to access.
They have, all the inmates have been offered vaccine.
And as far as I know, they were prioritized.
They were prioritized other
over other citizens in the Commonwealth.
On top of that-
-: But what about the,
what about the lack of confidentiality in, in the visits?
-: Your honor, what I would say is these visits are
of the same they're of the same,
nothing,
I mean, the visits are what they were pre-pandemic
as opposed to current pandemic.
And nothing, it doesn't need,
the cases show the Casio case
and I think the Giles case that I cite,
if nothing
houses of correction, aren't required to be,
you know,
present a perfect scenario for communication.
In this case, they,
they clean the facility rigorously
after every visit.
They provide PPE
for both the attorney and the client.
They also have telephone access.
For example, Essex county has,
has instituted an attorney hotline,
where the attorney can call up
and schedule a telephone call.
There's been over, I believe with just
with the tablets that Essex county has,
almost 14,000 attorney phone calls.
Additionally, Essex County has had
over 1600 attorney visits
since May of 2020.
So we are,
and obviously the inmates all have
legal mail that they have access to.
-: Mr. Bair, let's just, if we could just
just put aside what the record suggests
might be some of the imperfections in
Essex county with video conferencing
and just look at Bristol for a moment.
Should there be
a better ability for council to,
at least during a pandemic,
meet with their clients when
there's an interpreter involved or a
or an expert who needs to be consulted
maybe a a doctor as it
relates to an issue.
So that you can have both the, the
the doctor involved or the interpreter involved,
but not have to have them go in the facility.
-: I would say the reason why
is set forth in the record,
that they don't have the infrastructure in place
to, to implement video conferencing.
I know that they, there- -: Excuse me,
is there a difference between the Ash Street jail
and the department house correction, the county house
of correction, the Dartmouth House?
Any difference in bandwidth access or?
-: I, I think both, both are
due to the, and again, this is, you know,
I don't want to speculate,
but due to the infrastructure,
I'm being told that they're, that they're
in fact, they just don't have the capabilities to
to implement video conferencing.
-: That can't be the whole answer.
I mean, that can't be the whole answer.
If they didn't have the capabilities for a,
indoor plumbing, we wouldn't say,
well, gee, there's no capability,
so don't worry about it.
That's not the,
that's not the be all and end all answer.
-: Absolutely not, Your Honor.
Absolutely not.
And I would say if, you know, at some point, you know,
I'm sure Bristol will,
will implement
such a program.
But I
I guess the bottom line is,
is the pandemic's easing
and that
everyone who wants to be vaccinated can be vaccinated.
And ultimately they can enter
into the facility and conduct business as usual.
I guess that would be my answer, Your Honor.
And I, I understand your point.
And I would say, you know, certainly in the future
I I'm sure Bristol will consider expanding their
their options, but at the, in Casio and Giles,
they both basically said
legal mail and telephone.
And I understand it wasn't a pandemic by any means.
They weren't evaluating that.
But they both said that those were reasonable methods
of of
instituting attorney, client communications.
-: Let me ask if there are any further questions
of Mr. Bair and then if Chief Justice has any questions?
Justice Budd: No, thank you.
-: Thank you, Chief.
Dan: Thank you, Your Honor.
Court Officer: All rise.
Hear ye, hear ye, hear ye.
All persons have anything further to do before
the honorable justices
of the Supreme Judicial Court,
now sitting in (static interference)
within and before the Commonwealth.
(unintelligible)
This court is now adjourned.
God save the Commonwealth of Massachusetts.
Court is adjourned, thank you.
Please remain standing as the justices exit.
Thank you.