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SJC-13467 Commonwealth V. Hairo Baez.
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Okay, why don't we just
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let Attorney Semel get settled?
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All right, Attorney Simons.
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All right, thank you.
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Good morning, Chief Justice Budd
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and justices of this court.
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I'm Joseph Simons and I represent Hairo Baez,
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who is the appellant in this case.
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As you know from reading the filings
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and the record of this case, Mr. Baez had come over
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to the United States from the Dominican Republic
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as a 4-year-old with his mother.
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All he knew was living in the United States,
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but for visiting the Dominican Republic
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from time to time.
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During his high school years,
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he did get charged twice in the Peabody District Court
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and on the advice of his court appointed counsel,
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he ultimately pleaded guilty.
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Now, years after that,
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when he was about 24 years old,
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he went on a vacation to the Dominican Republic,
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planning to be there for about two weeks,
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comes back and realizes for the first time,
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that those guilty pleas had the effect
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of not allowing him to come back into United States.
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So how long has he been in the DR now?
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He's been in the Dominican Republic since 2011.
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So he's been forced to build a life in a place
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that he previously only knew from visiting and from before
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when he was four years old and below.
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Not that it's part of the record, he's got
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a couple of kids, he's got a wife,
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and he's tried to build a life for himself.
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But it took years before he could even
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gather some money together to hire me
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in order to go file a motion for new trial,
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which we did, I think in 2020-ish or so, but you-
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So are you saying that if he had not had an issue,
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had he not committed crimes and gone to the DR
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and then tried to come back,
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he would've been allowed back in?
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Well, I don't know, I can't speculate.
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I mean, at a certain point there might have been
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some sort of enforcement action
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because apparently, he wasn't really able
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to be here legally.
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So perhaps ICE would have decided
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to make some sort of enforcement action
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even if he hadn't left.
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Right, he came to the attention
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of people when he came back in.
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That's true, yeah, that's accurate.
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And can I ask the opposite question,
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which is that even if you prevail in this case,
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is it certain that he'll be able to get back?
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Not being an immigration lawyer,
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I don't know the answer for sure,
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but I have come to understand nothing
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is certain in immigration law.
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The briefs are unclear, obviously,
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about the current, about the exact situation.
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An amicus brief, I think is the one
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that's clearest on the idea
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that this is a discretionary determination
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with the consular office there.
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And one's criminal history is,
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you have to disclose your criminal history.
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Do you know what he would, if he prevails here,
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do you know what he would have to disclose?
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My understanding is that he would still have
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to disclose the nature of the charges that he faced.
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But if he were, let's say, acquitted
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or the cases were dismissed,
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then my understanding is he, at least,
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he would have a much higher likelihood of coming in.
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Whereas here, my understanding from him
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through his immigration counsel is that he would
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have a bar from coming back.
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Right now he's just ineligible to come back.
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But there's no reflection on the record
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that he has actually applied for a visa.
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No, and I mean, I don't know
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how clear the record is in terms of his affidavit,
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but I know that he has had immigration counsel
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who has told him that he is not eligible to come back
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where things stand right now, so-
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And I'm sorry, I do know the record better than I do.
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Is that in the record, that some sort of affidavit
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of immigration counsel saying
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because of the pendency of these charges,
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Mr. Baez can't come into the United States?
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My best memory of that is that there is,
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but it's not from immigration counsel,
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it's from Mr. Baez citing that he spoke
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with immigration attorney, Susan Church,
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who was his then attorney.
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But nothing from Church herself?
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I don't believe so.
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Okay, sorry, thank you.
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Sure, But-
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Does he have a right to be tried by way of Zoom?
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There hasn't been any sort of case law on that point,
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but I would argue that he does have a right to be tried.
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I mean, he has a right to a fair trial
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and he has a right to a speedy trial.
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Both of which he is pursuing.
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I mean, he's even gone so far as to waive his right
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to be physically present.
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It's something that he's, given the circumstances,
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it's I guess, lesser of two evils.
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But it's something that would at least ensure
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that his right to a trial, a fair trial, speedy trial,
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I believe, could be conducted
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and could be done under the circumstances
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under which I represented on the record
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in the district court
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that I had had good communication with him.
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How does he get a GPS
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when he's put on probation?
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It's a good question.
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What if he's found guilty and has to be imprisoned?
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Well, I guess that that could come up in some cases.
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I would not expect it to come up in this case, given
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that he's already been, he completed a sentence
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that he previously served.
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And I would opine
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that a trial court judge likely wouldn't.
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The problem is we're setting a rule for all cases,
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not your very, very, very unique case
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where he can't be punished further.
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I understand that, it's difficult.
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I suppose then a court could issue a warrant
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and then that warrant would just exist in perpetuity
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until either he gets extradited back
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or until he illegally comes back.
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Basically says to the government heads, I win,
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tails, you lose.
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Well, I think everybody-
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If I'm found not guilty, great.
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If I'm found guilty, meh.
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I would argue that the government has resources to try
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to get somebody back if they wanted to extradite
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that they could take steps
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which have not been taken in this case.
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I understand where you're coming from.
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Don't you still have your right
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to pursue your speedy trial?
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You can try to, if they don't prosecute 'em
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after a certain point, you can move to dismiss
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as a speedy trial violation, can't you?
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Isn't that-
You have the
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due process prong of Rule 36.
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Well, I suppose so,
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but I think most, just from my experience,
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most trial court judges, if a person can't come in person,
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they're just gonna put a warrant out.
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And I guess my understanding may be wrong,
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but my understanding is with a warrant,
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that sort of tolls the speedy trial clock.
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If a client defaults,
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then there is no speedy trial clock ticking
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at that time until the warrant's removed.
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Not if they know where he is.
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They can get him.
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And the defendant files a motion
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saying my due process rights are being violated.
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I don't see how that time could be counted
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against the defendant.
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Okay, well, if that's the case, I would ask
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that you make that clear in this opinion,
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because I think that there's other people
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in his position this will apply to.
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And so if somebody can, as you suggest
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further their speedy trial rights,
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even when they're not able to be here
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and a warrant is issued,
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as I expect would happen,
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that would be good
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to have some clarity on.
It's not a guarantee.
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Obviously, the judge could say,
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come on in and we'll start it back up.
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Well, you know, and that's a point, I think,
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that I wanna make, and although it
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doesn't necessarily apply to Mr. Baez,
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I think as you're making rules for all courts,
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there are courts that require a defendant to come in person.
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I mean, there's so many variables.
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I was in Lawrence recently where I filed a motion,
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asked to be heard, and they basically said,
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"Well, you know, you have to come
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in person to schedule this hearing."
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And I mean, there's just all sorts of times
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where I've seen judges say, "No, we need
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to see your client here, or we're
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not gonna address anything."
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Explain that, I can't get him here.
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They won't gimme a visa, I tried.
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By the way, the record doesn't indicate
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whether he tried to get a visa, does it?
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I don't think he actually applied for a visa.
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(justice sneezes)
Bless you.
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I don't think he applied for the visa
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because his attorney at the,
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his immigration attorney had advised him
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that there was no point to doing so.
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A defense lawyer would advise him to do
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that differently possibly
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if moving to.
Perhaps.
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Yeah.
Okay, I hear you.
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I understand, you know,
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so be that as it may, I think
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that this specific case, there's no justice to be done.
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I mean, to Justice Gaziano's point about heads, I win,
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tails, you lose, everybody loses here.
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I mean, if the government here is pressing for a trial
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because they want justice
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and they want justice for their victims,
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they wanna seek a conviction,
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they're clearly not dismissing this case
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that's now close to 20 years old.
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They're also obfuscating that ability.
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I mean, we've got Mr. Baez who's willing
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to put himself before the court
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and the only way that he can-
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They're worried that if this goes forward,
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there are gonna be all kinds of issues with a jury trial.
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He can't get here, he's going by Zoom.
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He's the only one not in the room.
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He's disadvantaged.
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If there's any technological glitches,
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when the jury evaluates his credibility,
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it's gonna have him just sitting there on a screen.
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You know, it's, I don't know.
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They may be saying to themselves, this could be a mess.
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We just don't want to do this.
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I can understand that,
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but I think we can't just worry about what ifs.
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I mean, I've had times when I've been in trial last summer,
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I was in Bristol County and we were supposed to be in court,
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and the recording system didn't work.
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I mean, there's technological glitches that happen,
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we had to take the whole day off after waiting
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for like, three hours hoping it was
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gonna come back up.
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To the Commonwealth's-
Sorry, counsel.
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I think the issues go beyond technological glitches,
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which I agree, unfortunately can go,
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can come up in a lot of different cases
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that it seems to me
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like there's a more fundamental issue here,
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which is that this is the unusual waiver of presence case
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where your client seems to want to be here, right?
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And so it's almost like the most compelling reason
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to allow the waiver of presence
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is also the involuntariness of his absence.
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And I think that was also part of the lower court's,
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that single justice's concern, at least.
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So could you address that point that even aside from,
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even if we had a smooth trial,
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and even assuming that the trial,
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he was not unfairly treated at trial,
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00:10:24.810 --> 00:10:27.330
that even after trial, there could be an issue?
265
00:10:27.330 --> 00:10:31.050
Sure, well, I think that that's not unlike a client
266
00:10:31.050 --> 00:10:34.200
who might be in jail awaiting trial,
267
00:10:34.200 --> 00:10:36.120
and they're on a bail they can't afford,
268
00:10:36.120 --> 00:10:37.770
and so they decide to plead guilty
269
00:10:37.770 --> 00:10:39.750
because they're offered a probationary sentence.
270
00:10:39.750 --> 00:10:41.640
You could argue, I guess, that
271
00:10:41.640 --> 00:10:44.820
that's not a completely voluntary waiver of rights
272
00:10:44.820 --> 00:10:46.500
when you're pleading guilty to something
273
00:10:46.500 --> 00:10:48.180
because it's gonna get you out on the street
274
00:10:48.180 --> 00:10:49.227
sooner than if you were to-
275
00:10:49.227 --> 00:10:51.690
But in those situations, we don't actually know, right?
276
00:10:51.690 --> 00:10:54.030
Here we have counsel standing in court
277
00:10:54.030 --> 00:10:57.000
saying basically, "My client wants to be here,
278
00:10:57.000 --> 00:10:57.993
but can't be.
279
00:10:59.010 --> 00:10:59.843
We don't have a client."
280
00:10:59.843 --> 00:11:01.500
We have whole plea colloquies to try
281
00:11:01.500 --> 00:11:04.980
and ensure that a plea is not like that, right?
282
00:11:04.980 --> 00:11:07.380
There are, I would respectfully say that
283
00:11:07.380 --> 00:11:09.420
that happens a lot, though, unfortunately,
284
00:11:09.420 --> 00:11:11.280
especially with court-appointed clients.
285
00:11:11.280 --> 00:11:13.470
But be that as it may, we're not here for that.
286
00:11:13.470 --> 00:11:17.070
I think to your point though, under the circumstances,
287
00:11:17.070 --> 00:11:21.210
it is a voluntary decision because it's either that
288
00:11:21.210 --> 00:11:25.470
or not come at all and just not-
289
00:11:25.470 --> 00:11:27.570
Isn't that the essence of involuntariness
290
00:11:27.570 --> 00:11:28.410
on some level though,
291
00:11:28.410 --> 00:11:32.310
that he doesn't have a choice, right?
292
00:11:32.310 --> 00:11:33.900
Well, I would argue he has a choice
293
00:11:33.900 --> 00:11:36.030
to not pursue his right to trial.
294
00:11:36.030 --> 00:11:37.560
I mean, he could have sought to do a plea
295
00:11:37.560 --> 00:11:38.970
or he could have, I mean, there's other options.
296
00:11:38.970 --> 00:11:41.460
It's not just a Zoom trial or nothing.
297
00:11:41.460 --> 00:11:44.430
So I think of the options that he has, this is a decision
298
00:11:44.430 --> 00:11:47.160
that he's made with the advice of counsel.
299
00:11:47.160 --> 00:11:51.150
I have gone to court, I've represented what his request is,
300
00:11:51.150 --> 00:11:53.580
and at first the trial court judge actually allowed it,
301
00:11:53.580 --> 00:11:55.500
by the way, which I thought was unusual,
302
00:11:55.500 --> 00:11:57.810
but the right thing to do, in my opinion anyway.
303
00:11:57.810 --> 00:11:59.550
And then she later made a decision
304
00:11:59.550 --> 00:12:02.250
because of the trial court rules,
305
00:12:02.250 --> 00:12:05.490
but she encouraged us to come seek some relief from you all,
306
00:12:05.490 --> 00:12:06.450
hoping that we could get a little
307
00:12:06.450 --> 00:12:07.920
bit of clarity, I assume.
308
00:12:07.920 --> 00:12:10.360
Did you find any cases anywhere like this
309
00:12:11.700 --> 00:12:13.727
where client wants a Zoom trial
310
00:12:13.727 --> 00:12:15.360
'cause he can't get into the country
311
00:12:15.360 --> 00:12:19.620
or any of these, any Zoom jury trial cases like this
312
00:12:19.620 --> 00:12:21.300
that we should look at?
313
00:12:21.300 --> 00:12:23.160
I wasn't able to, no.
314
00:12:23.160 --> 00:12:24.960
I mean, there may be, I just, I didn't find any.
315
00:12:24.960 --> 00:12:27.480
But if I could also, to your earlier point, just to,
316
00:12:27.480 --> 00:12:30.210
I talked about the technological issues,
317
00:12:30.210 --> 00:12:33.090
but also the Commonwealth had raised the issue about, well,
318
00:12:33.090 --> 00:12:35.580
my client would be on his own, there'd be no supervision
319
00:12:35.580 --> 00:12:37.710
as he would be in court.
320
00:12:37.710 --> 00:12:38.730
And I can understand that.
321
00:12:38.730 --> 00:12:41.430
But my point to that, my counterpoint
322
00:12:41.430 --> 00:12:44.730
would be if a client is in court physically
323
00:12:44.730 --> 00:12:47.100
and they're doing something that would obstruct justice
324
00:12:47.100 --> 00:12:49.110
or doing something that's inappropriate
325
00:12:49.110 --> 00:12:51.330
in a courtroom setting, the trial judge always
326
00:12:51.330 --> 00:12:52.950
has the ability to have him ejected.
327
00:12:52.950 --> 00:12:55.050
That does happen sometimes on trials
328
00:12:55.050 --> 00:12:57.120
where a client is removed from the courtroom
329
00:12:57.120 --> 00:12:59.340
and the trial proceeds without that person.
330
00:12:59.340 --> 00:13:01.140
How easy would it be for a trial judge
331
00:13:01.140 --> 00:13:02.370
to just tell the clerk,
332
00:13:02.370 --> 00:13:04.800
press the button and they're removed.
333
00:13:04.800 --> 00:13:06.420
So I think any concerns, any
334
00:13:06.420 --> 00:13:08.220
what ifs can certainly be addressed.
335
00:13:08.220 --> 00:13:10.290
And we've had about two, three, four years
336
00:13:10.290 --> 00:13:13.260
of Zoom capabilities with these,
337
00:13:13.260 --> 00:13:14.910
you know, pretrial hearings mostly.
338
00:13:14.910 --> 00:13:16.800
And they've gone, I would say mostly smooth.
339
00:13:16.800 --> 00:13:18.330
I mean, you hear about things here and there,
340
00:13:18.330 --> 00:13:19.950
but for the most part,
341
00:13:19.950 --> 00:13:20.783
I think you don't wanna
342
00:13:20.783 --> 00:13:23.070
throw away this opportunity just because there's
343
00:13:23.070 --> 00:13:24.420
been some bad behavior here and there.
344
00:13:24.420 --> 00:13:27.360
I don't think, but I think if the Commonwealth agreed,
345
00:13:27.360 --> 00:13:29.520
you'd be in a different position, right?
346
00:13:29.520 --> 00:13:33.540
So that's why I asked whether or not you had a right.
347
00:13:33.540 --> 00:13:36.450
Whether your client has a right to this.
348
00:13:36.450 --> 00:13:39.120
Yeah, I mean, yes, I would argue that he does.
349
00:13:39.120 --> 00:13:40.710
I would argue that he does be by way
350
00:13:40.710 --> 00:13:41.850
of his constitutional rights
351
00:13:41.850 --> 00:13:44.280
to having a fair trial and a speedy trial.
352
00:13:44.280 --> 00:13:46.200
And again, I think both can be accomplished
353
00:13:46.200 --> 00:13:49.113
with the technology that we have available with Zoom.
354
00:13:50.550 --> 00:13:52.800
You know, the Commonwealth's concern
355
00:13:52.800 --> 00:13:55.170
about these trial court rules not being followed,
356
00:13:55.170 --> 00:13:57.330
and that seems to be a big point of contention.
357
00:13:57.330 --> 00:13:59.850
Like, oh, well this Zoom trial is inconsistent
358
00:13:59.850 --> 00:14:01.020
with the trial court rules.
359
00:14:01.020 --> 00:14:02.700
I mean, if you look at Dorchester and Dedham,
360
00:14:02.700 --> 00:14:04.020
they're not doing Zoom at all,
361
00:14:04.020 --> 00:14:06.150
and that's in violation of the trial court rules
362
00:14:06.150 --> 00:14:08.070
that says compliance and election hearings
363
00:14:08.070 --> 00:14:09.420
are presumptively by Zoom.
364
00:14:09.420 --> 00:14:10.620
I mean, there's lots of courts that just
365
00:14:10.620 --> 00:14:12.180
aren't following them at all.
366
00:14:12.180 --> 00:14:15.090
And frankly, that the rules allow for some discretion
367
00:14:15.090 --> 00:14:16.650
because even if something's presumptive
368
00:14:16.650 --> 00:14:19.740
or not presumptive, anything that's in there pretty much
369
00:14:19.740 --> 00:14:22.440
is allowed to be modified
370
00:14:22.440 --> 00:14:25.410
by the trial court judge in a given circumstance.
371
00:14:25.410 --> 00:14:26.880
And as much as I know this case law
372
00:14:26.880 --> 00:14:28.590
will affect much more than Mr. Baez,
373
00:14:28.590 --> 00:14:31.140
I think the circumstances of this particular case
374
00:14:31.140 --> 00:14:34.110
and where he finds himself would further justice.
375
00:14:34.110 --> 00:14:36.540
Not just for him, but also for the alleged victims
376
00:14:36.540 --> 00:14:38.610
and for the public who also has a right
377
00:14:38.610 --> 00:14:41.040
or has an interest in seeing trials
378
00:14:41.040 --> 00:14:43.350
adjudicated fairly and promptly.
379
00:14:43.350 --> 00:14:45.600
Could you-
I'm sorry.
380
00:14:45.600 --> 00:14:49.530
So your position is the client has,
381
00:14:49.530 --> 00:14:52.800
any client has a constitutional right to a remote trial.
382
00:14:52.800 --> 00:14:56.490
If they but one, waive their appearance physically,
383
00:14:56.490 --> 00:15:00.540
and two, that's really the only way
384
00:15:00.540 --> 00:15:02.580
that you can get to trial, I guess.
385
00:15:02.580 --> 00:15:05.180
Even like the Whitey Bulger of the district court?
386
00:15:06.060 --> 00:15:08.587
Someone that's been a fugitive can say,
387
00:15:08.587 --> 00:15:10.170
"All right, I'll beam in now."
388
00:15:10.170 --> 00:15:11.880
Well, I guess that's a maybe, I don't know.
389
00:15:11.880 --> 00:15:14.340
I mean, Whitey Bulger was never outside of the country
390
00:15:14.340 --> 00:15:17.190
that I know of that, you know, outside of the jurisdiction.
391
00:15:17.190 --> 00:15:18.810
I think in that case, the federal government
392
00:15:18.810 --> 00:15:20.185
certainly could have brought him in and-
393
00:15:20.185 --> 00:15:21.930
No, but yeah, what you're saying is, you know,
394
00:15:21.930 --> 00:15:23.250
if someone from parts unknown
395
00:15:23.250 --> 00:15:26.220
can just say, "I want my Zoom trial."
396
00:15:26.220 --> 00:15:27.180
I think if they're in a position
397
00:15:27.180 --> 00:15:30.570
where they can't come here legally, then yes.
398
00:15:30.570 --> 00:15:31.530
If they waive their presence
399
00:15:31.530 --> 00:15:32.760
and they can't come here legally,
400
00:15:32.760 --> 00:15:35.490
I think under those two circumstances, yes.
401
00:15:35.490 --> 00:15:37.560
All right, you've added a third element
402
00:15:37.560 --> 00:15:40.080
that they can't come here legally.
403
00:15:40.080 --> 00:15:40.950
They can't come here legally.
404
00:15:40.950 --> 00:15:42.483
The only way that he could come here for a fair trial,
405
00:15:42.483 --> 00:15:44.040
he'd be violating federal law
406
00:15:44.040 --> 00:15:47.610
and be charged potentially, for a new crime.
407
00:15:47.610 --> 00:15:49.260
So, all right, with that,
408
00:15:49.260 --> 00:15:50.400
if I don't have any other questions,
409
00:15:50.400 --> 00:15:53.520
I thank you all for time and consideration.
410
00:15:53.520 --> 00:15:54.563
Okay, thank you.
411
00:15:56.130 --> 00:15:57.987
Now it's time for Attorney Semel.
412
00:15:57.987 --> 00:16:00.090
(Attorney Simons laughs)
Sorry about that earlier.
413
00:16:00.090 --> 00:16:02.430
Good morning or good afternoon.
414
00:16:02.430 --> 00:16:03.730
I think we're on the cusp.
415
00:16:04.890 --> 00:16:05.760
If it may please court,
416
00:16:05.760 --> 00:16:08.250
I'm Catherine Semel for the Commonwealth.
417
00:16:08.250 --> 00:16:11.490
If I could just first answer Justice Wendlandt's question,
418
00:16:11.490 --> 00:16:13.410
which I think defense counsel answered the same,
419
00:16:13.410 --> 00:16:17.550
but just to be clear, only the defendant filed an affidavit
420
00:16:17.550 --> 00:16:21.330
about his inability to come back into the United States
421
00:16:21.330 --> 00:16:23.220
and he did so only in conjunction
422
00:16:23.220 --> 00:16:25.650
with a single justice proceeding is dated,
423
00:16:25.650 --> 00:16:27.450
in fact, about a week after the ruling
424
00:16:27.450 --> 00:16:28.283
from the trial court.
425
00:16:28.283 --> 00:16:30.180
It was never presented at the trial court.
426
00:16:30.180 --> 00:16:32.490
It was very iffy at the trial court.
427
00:16:32.490 --> 00:16:34.567
It was really defense counsel saying,
428
00:16:34.567 --> 00:16:36.270
"It's my understanding he's been deported,
429
00:16:36.270 --> 00:16:38.100
he can't come back into the United States."
430
00:16:38.100 --> 00:16:42.630
So there's no real factual foundation.
431
00:16:42.630 --> 00:16:44.483
The government dispute that?
432
00:16:45.570 --> 00:16:47.077
I think that it's-
433
00:16:47.077 --> 00:16:48.150
I mean, it is after all,
434
00:16:48.150 --> 00:16:50.220
the federal government's rule.
435
00:16:50.220 --> 00:16:54.030
It is unclear, and I think as was pointed out,
436
00:16:54.030 --> 00:16:57.330
it's probably the amicus brief that not,
437
00:16:57.330 --> 00:17:00.300
I don't have a great deal of immigration knowledge myself,
438
00:17:00.300 --> 00:17:03.540
but even the amicus brief said only that it's possible
439
00:17:03.540 --> 00:17:05.160
that he wouldn't be able to get a visa
440
00:17:05.160 --> 00:17:07.830
due to the pending charges in this case.
441
00:17:07.830 --> 00:17:12.810
So it's entirely unclear and certainly if things
442
00:17:12.810 --> 00:17:15.630
proceeded at the trial court after this decision
443
00:17:15.630 --> 00:17:18.690
where speedy trial, due process was brought up,
444
00:17:18.690 --> 00:17:21.120
this would have to be fully litigated
445
00:17:21.120 --> 00:17:25.260
and determine exactly what was happening.
446
00:17:25.260 --> 00:17:27.270
Whether a visa had been applied for,
447
00:17:27.270 --> 00:17:30.420
and whether, in fact, the defendant was unable
448
00:17:30.420 --> 00:17:32.223
to come back into the United States.
449
00:17:33.420 --> 00:17:36.510
But basically what happened at the trial court
450
00:17:36.510 --> 00:17:38.940
was that the judge reconsidered her ruling
451
00:17:38.940 --> 00:17:40.863
allowing the Zoom trial
452
00:17:40.863 --> 00:17:44.250
on the basis of the standing order,
453
00:17:44.250 --> 00:17:48.810
which the standing order in effect in the district court-
454
00:17:48.810 --> 00:17:50.523
Seems a little artificial.
455
00:17:54.210 --> 00:17:59.040
Are we really, are the rules really governing here
456
00:17:59.040 --> 00:18:02.670
or is this sort of a bigger picture issue?
457
00:18:02.670 --> 00:18:04.590
You know, it seems like the rules
458
00:18:04.590 --> 00:18:06.543
could accommodate this, right?
459
00:18:08.040 --> 00:18:09.120
I think it's possible.
460
00:18:09.120 --> 00:18:11.430
I think it's possible there's a residual
461
00:18:11.430 --> 00:18:15.270
kind of clause that says that any event that-
462
00:18:15.270 --> 00:18:17.220
You'd agreed and they'd agreed,
463
00:18:17.220 --> 00:18:19.920
and you both thought this was in the client's interest,
464
00:18:19.920 --> 00:18:23.850
it would be a rule violation to have this done by Zoom.
465
00:18:23.850 --> 00:18:25.650
I understand why, you know, you may not
466
00:18:25.650 --> 00:18:27.817
want to agree to this.
467
00:18:27.817 --> 00:18:30.897
I get it, but rules seems like it's kind of (indistinct).
468
00:18:32.460 --> 00:18:34.890
Personally, I think it's possible
469
00:18:34.890 --> 00:18:37.200
that it could be in the judge's discretion
470
00:18:37.200 --> 00:18:40.770
if both parties agreed and the judge, the court
471
00:18:40.770 --> 00:18:42.330
felt that it was appropriate,
472
00:18:42.330 --> 00:18:45.180
and all the safeguards were in place.
473
00:18:45.180 --> 00:18:47.010
That if everything came together,
474
00:18:47.010 --> 00:18:50.310
I don't personally think it would be an abuse of discretion
475
00:18:50.310 --> 00:18:51.840
for the judge to determine
476
00:18:51.840 --> 00:18:53.910
that a remote trial could be held
477
00:18:53.910 --> 00:18:55.810
or that the defendant could be remote.
478
00:18:56.760 --> 00:18:58.980
But I think that definitely
479
00:18:58.980 --> 00:19:00.963
over the Commonwealth's objection,
480
00:19:02.160 --> 00:19:04.996
it would be an abuse of discretion to allow it
481
00:19:04.996 --> 00:19:06.240
and it was not an abuse of discretion
482
00:19:06.240 --> 00:19:07.470
to deny it in this case.
483
00:19:07.470 --> 00:19:10.997
Can I ask, so if he couldn't,
484
00:19:10.997 --> 00:19:14.013
again, if he couldn't get a visa and he tried,
485
00:19:15.000 --> 00:19:17.280
and he's trying to clear his name
486
00:19:17.280 --> 00:19:19.320
but he can't do it.
487
00:19:19.320 --> 00:19:24.320
Does he have a right to a Zoom trial over your objection?
488
00:19:25.560 --> 00:19:26.913
And if not, why?
489
00:19:28.160 --> 00:19:30.240
I don't believe he does.
490
00:19:30.240 --> 00:19:34.983
I mean that-
He just can't, he can't,
491
00:19:35.850 --> 00:19:38.010
I mean, I understand maybe he hasn't done enough here,
492
00:19:38.010 --> 00:19:40.290
but he can't exonerate himself
493
00:19:40.290 --> 00:19:41.730
if he can't get into the country
494
00:19:41.730 --> 00:19:44.250
if you won't let him do a Zoom trial.
495
00:19:44.250 --> 00:19:45.600
I'm just trying to figure out
496
00:19:45.600 --> 00:19:47.697
does he have a right to a Zoom trial?
497
00:19:47.697 --> 00:19:49.170
And you know, he's fully informed,
498
00:19:49.170 --> 00:19:52.207
the judge gives a detailed colloquy, you know,
499
00:19:52.207 --> 00:19:53.850
"You're not gonna be in the room.
500
00:19:53.850 --> 00:19:56.457
They're gonna be, you're at a disadvantage."
501
00:19:57.300 --> 00:19:59.910
And he goes, "Judge, I just, I want to clear my name.
502
00:19:59.910 --> 00:20:01.737
They won't let me into the country."
503
00:20:02.940 --> 00:20:06.003
Does he have a right to Zoom trial in that context?
504
00:20:06.900 --> 00:20:08.220
I don't think he has, I don't think
505
00:20:08.220 --> 00:20:10.440
the defense has pointed-
Why not?
506
00:20:10.440 --> 00:20:12.660
Because you have a right to be present.
507
00:20:12.660 --> 00:20:14.310
Clearly, the defendant has a right
508
00:20:14.310 --> 00:20:15.550
to be present at his trial,
509
00:20:15.550 --> 00:20:17.100
but I don't think he has a right
510
00:20:17.100 --> 00:20:19.140
to dictate for the court that he wants
511
00:20:19.140 --> 00:20:21.210
to be present in this particular way.
512
00:20:21.210 --> 00:20:22.920
That is not the way trials are
513
00:20:22.920 --> 00:20:24.210
conducted in the Commonwealth.
514
00:20:24.210 --> 00:20:25.980
Federal government won't let him in.
515
00:20:25.980 --> 00:20:28.800
If, again, I'm not saying that's established here,
516
00:20:28.800 --> 00:20:30.510
but we're gonna have a case
517
00:20:30.510 --> 00:20:33.660
where federal government's not gonna let them in,
518
00:20:33.660 --> 00:20:37.440
and I just try, I'm trying to understand it.
519
00:20:37.440 --> 00:20:39.270
I get why you don't want to do this.
520
00:20:39.270 --> 00:20:41.760
I'm just trying to understand whether he
521
00:20:41.760 --> 00:20:44.583
has a right to try to exonerate himself.
522
00:20:48.690 --> 00:20:52.080
Yeah, I think that his remedy is
523
00:20:52.080 --> 00:20:55.140
to file a motion to dismiss the charges,
524
00:20:55.140 --> 00:20:58.290
which I realize is not the exact same thing
525
00:20:58.290 --> 00:21:01.080
as going to trial and being acquitted,
526
00:21:01.080 --> 00:21:04.290
but I think that that is his remedy to do that.
527
00:21:04.290 --> 00:21:08.400
And that-
On the basis of?
528
00:21:08.400 --> 00:21:12.090
On the basis of, you know, speedy trial, due process,
529
00:21:12.090 --> 00:21:15.000
all the things that were articulated by Justice Lowy,
530
00:21:15.000 --> 00:21:17.370
all the things that were not raised yet
531
00:21:17.370 --> 00:21:19.680
in this case have not been, you know,
532
00:21:19.680 --> 00:21:21.030
argued at the trial court.
533
00:21:21.030 --> 00:21:25.200
But you know, this decision is,
534
00:21:25.200 --> 00:21:26.782
the case doesn't end here, you know?
535
00:21:26.782 --> 00:21:29.703
If the court rules in the Commonwealth's favor,
536
00:21:30.600 --> 00:21:33.123
then that just means that there is no Zoom trial.
537
00:21:34.230 --> 00:21:36.960
Why, I know Justice Kafka understands your reasoning.
538
00:21:36.960 --> 00:21:38.010
Can you explain it to me?
539
00:21:38.010 --> 00:21:39.993
Why is the Commonwealth not agreeing,
540
00:21:41.280 --> 00:21:42.630
given that the defendant
541
00:21:42.630 --> 00:21:45.360
is already served any possible time?
542
00:21:45.360 --> 00:21:47.010
Yes, because that would
543
00:21:47.010 --> 00:21:50.010
be another important consideration, absolutely.
544
00:21:50.010 --> 00:21:52.140
Inability to impose a sentence.
545
00:21:52.140 --> 00:21:53.310
But there are other reasons.
546
00:21:53.310 --> 00:21:54.570
First of all, you know, it just,
547
00:21:54.570 --> 00:21:58.198
it sets a precedent for other cases
548
00:21:58.198 --> 00:22:02.010
where it's merely perhaps inconvenient
549
00:22:02.010 --> 00:22:03.990
for a defendant to come.
550
00:22:03.990 --> 00:22:07.410
Other cases where an individual is, you know,
551
00:22:07.410 --> 00:22:09.600
has other obstacles to coming.
552
00:22:09.600 --> 00:22:11.790
But as to the trial itself, you know,
553
00:22:11.790 --> 00:22:16.790
there's a difference, and Justice Kafker articulated
554
00:22:16.890 --> 00:22:18.633
some of these in Vasquez Diaz.
555
00:22:19.590 --> 00:22:24.150
There's a difference in testifying via Zoom.
556
00:22:24.150 --> 00:22:26.970
And the defendant, in this case, could clearly testify
557
00:22:26.970 --> 00:22:30.630
in this case if he wanted to.
558
00:22:30.630 --> 00:22:32.709
Go against him.
559
00:22:32.709 --> 00:22:36.780
The the thing that goes for you is if he gets convicted,
560
00:22:36.780 --> 00:22:38.610
you can't do anything about it
561
00:22:38.610 --> 00:22:42.210
'cause he's outta your jurisdiction unless you-
562
00:22:42.210 --> 00:22:45.330
Well, and I'd add that not only can you not do anything
563
00:22:45.330 --> 00:22:46.740
because it's outta your jurisdiction,
564
00:22:46.740 --> 00:22:48.300
but because as a matter of law,
565
00:22:48.300 --> 00:22:51.060
you can't impose a further sentence.
566
00:22:51.060 --> 00:22:53.220
Right. (laughs)
Yes, so in this-
567
00:22:53.220 --> 00:22:55.358
So if this decision were narrowly tailored
568
00:22:55.358 --> 00:22:58.530
to Mr. Baez, the government would be fine
569
00:22:58.530 --> 00:23:00.330
because there would be no precedent?
570
00:23:01.590 --> 00:23:03.700
No, because we do think
571
00:23:05.282 --> 00:23:07.380
that the Commonwealth should have a say
572
00:23:07.380 --> 00:23:09.390
in how these trials are conducted.
573
00:23:09.390 --> 00:23:11.970
If the defendant is just requesting
574
00:23:11.970 --> 00:23:13.853
that the traditional trial change will come-
575
00:23:13.853 --> 00:23:16.170
How did the pretrial motions get,
576
00:23:16.170 --> 00:23:19.860
or pretrial activity get resolved?
577
00:23:19.860 --> 00:23:20.883
Were they by Zoom?
578
00:23:21.960 --> 00:23:24.660
I believe Mr. Baez was by Zoom or was excused.
579
00:23:24.660 --> 00:23:26.340
Okay.
I don't recall precisely,
580
00:23:26.340 --> 00:23:27.783
but yes, yeah.
581
00:23:30.754 --> 00:23:33.060
And we've agreed to that in a certain, I mean,
582
00:23:33.060 --> 00:23:36.449
we didn't oppose when he filed a motion for new trial.
583
00:23:36.449 --> 00:23:39.930
And that was resolved,
584
00:23:39.930 --> 00:23:42.720
but it wasn't an evidentiary matter.
585
00:23:42.720 --> 00:23:44.670
It's only when the defendant wants
586
00:23:44.670 --> 00:23:47.250
to participate by Zoom in a trial
587
00:23:47.250 --> 00:23:50.170
as to which there's no further punishment possible
588
00:23:51.030 --> 00:23:53.343
that the government is objecting.
589
00:23:54.840 --> 00:23:57.240
We are objecting to the procedure.
590
00:23:57.240 --> 00:23:59.370
So in effect, what the government is doing
591
00:23:59.370 --> 00:24:01.623
is keeping Mr. Baez out of the country.
592
00:24:03.450 --> 00:24:04.680
We don't know if that's the case.
593
00:24:04.680 --> 00:24:06.174
We don't know if he actually can't come back-
594
00:24:06.174 --> 00:24:07.560
Now assuming that there was an affidavit
595
00:24:07.560 --> 00:24:12.560
from Attorney Church that the law's immigration law
596
00:24:13.440 --> 00:24:15.900
is such that if he has pending charges,
597
00:24:15.900 --> 00:24:17.883
he can't come into this country.
598
00:24:18.930 --> 00:24:20.820
Assuming that record was better
599
00:24:20.820 --> 00:24:22.983
as Justice Kafker was suggesting.
600
00:24:24.506 --> 00:24:26.400
That might be the result here.
601
00:24:26.400 --> 00:24:27.570
That might be the result.
602
00:24:27.570 --> 00:24:29.490
Right, 'cause there's no further punishment
603
00:24:29.490 --> 00:24:30.960
available at the state level.
604
00:24:30.960 --> 00:24:33.360
The only punishment that Mr. Baez is suffering
605
00:24:33.360 --> 00:24:34.800
is his inability to come back
606
00:24:34.800 --> 00:24:36.300
to a country where he grew up.
607
00:24:39.099 --> 00:24:39.932
As far as we know.
Well, there would
608
00:24:39.932 --> 00:24:42.360
still be the conviction, right?
609
00:24:42.360 --> 00:24:44.160
I mean, there might not be any subsequent punishment,
610
00:24:44.160 --> 00:24:45.960
but he could be convicted.
611
00:24:45.960 --> 00:24:46.950
Yes.
Right?
612
00:24:46.950 --> 00:24:48.950
He could certainly be convicted again.
613
00:24:51.990 --> 00:24:53.970
And could he be re-sentenced again?
614
00:24:53.970 --> 00:24:56.010
No.
No, I don't believe so.
615
00:24:56.010 --> 00:24:57.560
I don't believe so, Your Honor.
616
00:24:58.800 --> 00:25:01.350
But of course, you know, that is not the typical case.
617
00:25:01.350 --> 00:25:02.640
But is this case?
618
00:25:02.640 --> 00:25:07.640
It's correct, but I really think
619
00:25:07.770 --> 00:25:11.670
that it is gonna be years
620
00:25:11.670 --> 00:25:13.410
before we flush out in the courts,
621
00:25:13.410 --> 00:25:14.940
all the ways in which the defendant
622
00:25:14.940 --> 00:25:18.120
can challenge a conviction
623
00:25:18.120 --> 00:25:20.310
that's done in any way remotely.
624
00:25:20.310 --> 00:25:23.940
And I think we saw it in Commonwealth versus Kern,
625
00:25:23.940 --> 00:25:27.690
where a bench trial took place.
626
00:25:27.690 --> 00:25:30.540
The defendant didn't object to being remote.
627
00:25:30.540 --> 00:25:33.660
And there was an appeal with a litany of claims
628
00:25:33.660 --> 00:25:36.390
in that case, which were rejected,
629
00:25:36.390 --> 00:25:38.310
but which were considered, obviously,
630
00:25:38.310 --> 00:25:40.770
as to presence, as to ineffective assistance.
631
00:25:40.770 --> 00:25:45.300
You know, there are definitely differences
632
00:25:45.300 --> 00:25:49.470
in conducting important witnesses, particularly,
633
00:25:49.470 --> 00:25:51.861
or defendants, you know, by Zoom.
634
00:25:51.861 --> 00:25:56.861
And this case is particularly problematic
635
00:25:57.480 --> 00:26:01.080
because he's not in, for instance, you know,
636
00:26:01.080 --> 00:26:03.810
ICE custody in New Hampshire.
637
00:26:03.810 --> 00:26:04.950
He could be, you know,
638
00:26:04.950 --> 00:26:06.600
he's sitting in a Starbucks somewhere.
639
00:26:06.600 --> 00:26:08.970
I mean, there's no control
640
00:26:08.970 --> 00:26:12.210
over the way it's going to occur.
641
00:26:12.210 --> 00:26:14.040
This is a technological point.
642
00:26:14.040 --> 00:26:15.480
you know, there's no control
643
00:26:15.480 --> 00:26:19.440
over the setup, and his access,
644
00:26:19.440 --> 00:26:20.430
and all of these things.
645
00:26:20.430 --> 00:26:22.620
There's no oversight of it at all.
646
00:26:22.620 --> 00:26:24.270
And I think that's a problem,
647
00:26:24.270 --> 00:26:26.160
but it's also just a problem
648
00:26:26.160 --> 00:26:28.652
of having witnesses appear by Zoom.
649
00:26:28.652 --> 00:26:31.290
And it changes the character of the proceeding
650
00:26:31.290 --> 00:26:32.850
where the defendant doesn't even have
651
00:26:32.850 --> 00:26:35.130
to physically show up to trial.
652
00:26:35.130 --> 00:26:36.210
Remind me again in Kern,
653
00:26:36.210 --> 00:26:39.750
was it the government that wanted to go forward by Zoom?
654
00:26:39.750 --> 00:26:41.093
I think it was agreed.
655
00:26:41.093 --> 00:26:43.260
There was no objection brought.
656
00:26:43.260 --> 00:26:45.000
I don't think it was spelled out in the decision,
657
00:26:45.000 --> 00:26:47.130
but I know that there was no objection.
658
00:26:47.130 --> 00:26:48.990
Can we return to the topic that we were
659
00:26:48.990 --> 00:26:52.500
discussing earlier with your fellow counsel?
660
00:26:52.500 --> 00:26:54.360
Can you talk about the practicalities
661
00:26:54.360 --> 00:26:56.370
of what's gonna occur here?
662
00:26:56.370 --> 00:26:57.930
Let's say, hypothetically,
663
00:26:57.930 --> 00:26:59.910
that the single justice were affirmed
664
00:26:59.910 --> 00:27:02.460
and then things move forward.
665
00:27:02.460 --> 00:27:04.530
What is gonna happen next?
666
00:27:04.530 --> 00:27:08.430
I think the ball is probably in the defense court
667
00:27:08.430 --> 00:27:11.400
as to what they're going to do and whether they're,
668
00:27:11.400 --> 00:27:14.171
and what action they're gonna take with regard to-
669
00:27:14.171 --> 00:27:17.340
Would he have a Rule 36 issue defense?
670
00:27:17.340 --> 00:27:19.153
Possibly, possibly.
671
00:27:19.153 --> 00:27:21.150
I mean, none of this has been flushed out.
672
00:27:21.150 --> 00:27:24.045
None of it was raised, you know?
673
00:27:24.045 --> 00:27:27.690
There are ways for the case to conclude
674
00:27:27.690 --> 00:27:30.060
and there are claims that can be brought by the defense.
675
00:27:30.060 --> 00:27:31.140
None of them have been brought yet.
676
00:27:31.140 --> 00:27:33.000
And I think Justice Lowy made that clear
677
00:27:33.000 --> 00:27:37.230
in his decision that none of those were-
678
00:27:37.230 --> 00:27:40.440
Commonwealth hasn't waived any argument
679
00:27:40.440 --> 00:27:43.293
that the defendant should be tried in absentia?
680
00:27:44.430 --> 00:27:47.250
Right, we haven't ever raised that
681
00:27:47.250 --> 00:27:49.323
and we haven't waived it.
682
00:27:51.210 --> 00:27:52.800
Well, can I be a little more specific then?
683
00:27:52.800 --> 00:27:54.930
I appreciate everything you just said, which is helpful,
684
00:27:54.930 --> 00:27:57.660
but more specifically, let's take as a given
685
00:27:57.660 --> 00:27:59.460
that the affidavit is correct,
686
00:27:59.460 --> 00:28:02.430
which simply says he cannot be here.
687
00:28:02.430 --> 00:28:04.200
Let's just assume that that's correct.
688
00:28:04.200 --> 00:28:05.703
And so he cannot be here.
689
00:28:06.630 --> 00:28:09.870
And let's also assume he does not obviously,
690
00:28:09.870 --> 00:28:11.550
want to plea to these charges
691
00:28:11.550 --> 00:28:14.010
because the whole point of why,
692
00:28:14.010 --> 00:28:14.910
yeah, you understand.
693
00:28:14.910 --> 00:28:17.070
I think that could be potentially taken as a given.
694
00:28:17.070 --> 00:28:19.500
So given at least those parameters,
695
00:28:19.500 --> 00:28:21.480
what do you think would,
696
00:28:21.480 --> 00:28:22.560
as a practical matter occur,
697
00:28:22.560 --> 00:28:23.793
will he be defaulted?
698
00:28:24.810 --> 00:28:26.460
I think he hasn't been defaulted yet.
699
00:28:26.460 --> 00:28:29.165
I mean, the judge, there was some question at,
700
00:28:29.165 --> 00:28:30.210
and I believe the last hearing
701
00:28:30.210 --> 00:28:31.860
about entering a default,
702
00:28:31.860 --> 00:28:33.480
and defense counsel asked for there not
703
00:28:33.480 --> 00:28:34.560
to be a default entered.
704
00:28:34.560 --> 00:28:36.610
And I believe the judge agreed with that.
705
00:28:38.010 --> 00:28:42.780
And for potential immigration purposes
706
00:28:42.780 --> 00:28:43.800
that it would just make it harder
707
00:28:43.800 --> 00:28:44.950
for him to get back in.
708
00:28:47.010 --> 00:28:50.730
So there's no plan to have a default entered at the moment.
709
00:28:50.730 --> 00:28:54.030
I don't know precisely what steps they'll take
710
00:28:54.030 --> 00:28:54.980
at the trial court,
711
00:28:55.920 --> 00:28:58.350
but I don't believe this would default right now.
712
00:28:58.350 --> 00:29:00.400
What is the Commonwealth's interest
713
00:29:01.440 --> 00:29:05.280
in maintaining this criminal prosecution
714
00:29:05.280 --> 00:29:09.030
after if we were to affirm the single justice
715
00:29:09.030 --> 00:29:11.880
and then we send it back and he's not here,
716
00:29:11.880 --> 00:29:14.730
and no one wants to default to Commonwealth,
717
00:29:14.730 --> 00:29:17.610
doesn't seem to even be asking to default him.
718
00:29:17.610 --> 00:29:18.810
Can you talk about the interest
719
00:29:18.810 --> 00:29:20.820
at that point for the Commonwealth?
720
00:29:20.820 --> 00:29:22.800
If, I'm sorry, if you affirm?
721
00:29:22.800 --> 00:29:24.630
If we affirmed the single justice.
722
00:29:24.630 --> 00:29:26.130
So that means that it's sent back.
723
00:29:26.130 --> 00:29:27.420
It's essentially status quo.
724
00:29:27.420 --> 00:29:30.810
He can't have a trial because he can't get here,
725
00:29:30.810 --> 00:29:33.090
and you've successfully convinced the court
726
00:29:33.090 --> 00:29:34.830
that we can't force the trial court
727
00:29:34.830 --> 00:29:37.800
to have him appear by Zoom.
728
00:29:37.800 --> 00:29:42.270
No one seems to be requesting that he be defaulted.
729
00:29:42.270 --> 00:29:44.373
It's just gonna hang there.
730
00:29:45.509 --> 00:29:46.770
Does the government have an interest
731
00:29:46.770 --> 00:29:48.993
in continuing the case at that point?
732
00:29:50.070 --> 00:29:53.640
I think we have an interest in resolving the case
733
00:29:53.640 --> 00:29:55.610
if the defendant can be present.
734
00:29:55.610 --> 00:29:59.400
We have, miraculously, our witnesses in this case
735
00:29:59.400 --> 00:30:02.523
and two very old cases, we had our witnesses available.
736
00:30:03.450 --> 00:30:06.810
But I think our position is
737
00:30:06.810 --> 00:30:10.560
that we do not wanna have a remote trial and-
738
00:30:10.560 --> 00:30:12.141
Always dismissive without prejudice.
739
00:30:12.141 --> 00:30:15.780
Let 'em come in and then take the charges out again,
740
00:30:15.780 --> 00:30:17.103
and have your trial.
741
00:30:18.090 --> 00:30:19.230
That's one possibility.
742
00:30:19.230 --> 00:30:21.420
It's also a possibility that the case will be dismissed
743
00:30:21.420 --> 00:30:23.420
by some action that the defendant takes.
744
00:30:24.510 --> 00:30:28.680
You know, and you know, that's a choice
745
00:30:28.680 --> 00:30:30.450
that we've made in preceding with this case,
746
00:30:30.450 --> 00:30:31.850
and we think it's important.
747
00:30:33.240 --> 00:30:35.460
We think it's, we don't think
748
00:30:35.460 --> 00:30:38.673
that a Zoom trial is appropriate in these circumstances.