-: SJC-13467 Commonwealth V. Hairo Baez.
Budd: Okay, why don't we just
let Attorney Semel get settled?
All right, Attorney Simons.
-: All right, thank you.
Good morning, Chief Justice Budd
and justices of this court.
I'm Joseph Simons and I represent Hairo Baez,
who is the appellant in this case.
As you know from reading the filings
and the record of this case, Mr. Baez had come over
to the United States from the Dominican Republic
as a 4-year-old with his mother.
All he knew was living in the United States,
but for visiting the Dominican Republic
from time to time.
During his high school years,
he did get charged twice in the Peabody District Court
and on the advice of his court appointed counsel,
he ultimately pleaded guilty.
Now, years after that,
when he was about 24 years old,
he went on a vacation to the Dominican Republic,
planning to be there for about two weeks,
comes back and realizes for the first time,
that those guilty pleas had the effect
of not allowing him to come back into United States.
Budd: So how long has he been in the DR now?
-: He's been in the Dominican Republic since 2011.
So he's been forced to build a life in a place
that he previously only knew from visiting and from before
when he was four years old and below.
Not that it's part of the record, he's got
a couple of kids, he's got a wife,
and he's tried to build a life for himself.
But it took years before he could even
gather some money together to hire me
in order to go file a motion for new trial,
which we did, I think in 2020-ish or so, but you-
-: So are you saying that if he had not had an issue,
had he not committed crimes and gone to the DR
and then tried to come back,
he would've been allowed back in?
-: Well, I don't know, I can't speculate.
I mean, at a certain point there might have been
some sort of enforcement action
because apparently, he wasn't really able
to be here legally.
So perhaps ICE would have decided
to make some sort of enforcement action
even if he hadn't left.
-: Right, he came to the attention
of people when he came back in.
-: That's true, yeah, that's accurate.
-: And can I ask the opposite question,
which is that even if you prevail in this case,
is it certain that he'll be able to get back?
-: Not being an immigration lawyer,
I don't know the answer for sure,
but I have come to understand nothing
is certain in immigration law.
-: The briefs are unclear, obviously,
about the current, about the exact situation.
An amicus brief, I think is the one
that's clearest on the idea
that this is a discretionary determination
with the consular office there.
And one's criminal history is,
you have to disclose your criminal history.
Do you know what he would, if he prevails here,
do you know what he would have to disclose?
-: My understanding is that he would still have
to disclose the nature of the charges that he faced.
But if he were, let's say, acquitted
or the cases were dismissed,
then my understanding is he, at least,
he would have a much higher likelihood of coming in.
Whereas here, my understanding from him
through his immigration counsel is that he would
have a bar from coming back.
Right now he's just ineligible to come back.
-: But there's no reflection on the record
that he has actually applied for a visa.
-: No, and I mean, I don't know
how clear the record is in terms of his affidavit,
but I know that he has had immigration counsel
who has told him that he is not eligible to come back
where things stand right now, so-
-: And I'm sorry, I do know the record better than I do.
Is that in the record, that some sort of affidavit
of immigration counsel saying
because of the pendency of these charges,
Mr. Baez can't come into the United States?
-: My best memory of that is that there is,
but it's not from immigration counsel,
it's from Mr. Baez citing that he spoke
with immigration attorney, Susan Church,
who was his then attorney.
-: But nothing from Church herself?
-: I don't believe so.
-: Okay, sorry, thank you.
-: Sure, But-
-: Does he have a right to be tried by way of Zoom?
-: There hasn't been any sort of case law on that point,
but I would argue that he does have a right to be tried.
I mean, he has a right to a fair trial
and he has a right to a speedy trial.
Both of which he is pursuing.
I mean, he's even gone so far as to waive his right
to be physically present.
It's something that he's, given the circumstances,
it's I guess, lesser of two evils.
But it's something that would at least ensure
that his right to a trial, a fair trial, speedy trial,
I believe, could be conducted
and could be done under the circumstances
under which I represented on the record
in the district court
that I had had good communication with him.
Gaziano: How does he get a GPS
when he's put on probation?
-: It's a good question.
Budd: What if he's found guilty and has to be imprisoned?
-: Well, I guess that that could come up in some cases.
I would not expect it to come up in this case, given
that he's already been, he completed a sentence
that he previously served.
And I would opine
that a trial court judge likely wouldn't.
-: The problem is we're setting a rule for all cases,
not your very, very, very unique case
where he can't be punished further.
-: I understand that, it's difficult.
I suppose then a court could issue a warrant
and then that warrant would just exist in perpetuity
until either he gets extradited back
or until he illegally comes back.
-: Basically says to the government heads, I win,
tails, you lose.
-: Well, I think everybody-
-: If I'm found not guilty, great.
If I'm found guilty, meh.
-: I would argue that the government has resources to try
to get somebody back if they wanted to extradite
that they could take steps
which have not been taken in this case.
I understand where you're coming from.
-: Don't you still have your right
to pursue your speedy trial?
You can try to, if they don't prosecute 'em
after a certain point, you can move to dismiss
as a speedy trial violation, can't you?
Isn't that- Gaziano: You have the
due process prong of Rule 36.
-: Well, I suppose so,
but I think most, just from my experience,
most trial court judges, if a person can't come in person,
they're just gonna put a warrant out.
And I guess my understanding may be wrong,
but my understanding is with a warrant,
that sort of tolls the speedy trial clock.
If a client defaults,
then there is no speedy trial clock ticking
at that time until the warrant's removed.
Gaziano: Not if they know where he is.
They can get him.
-: And the defendant files a motion
saying my due process rights are being violated.
I don't see how that time could be counted
against the defendant.
-: Okay, well, if that's the case, I would ask
that you make that clear in this opinion,
because I think that there's other people
in his position this will apply to.
And so if somebody can, as you suggest
further their speedy trial rights,
even when they're not able to be here
and a warrant is issued,
as I expect would happen,
that would be good
to have some clarity on. -: It's not a guarantee.
Obviously, the judge could say,
come on in and we'll start it back up.
-: Well, you know, and that's a point, I think,
that I wanna make, and although it
doesn't necessarily apply to Mr. Baez,
I think as you're making rules for all courts,
there are courts that require a defendant to come in person.
I mean, there's so many variables.
I was in Lawrence recently where I filed a motion,
asked to be heard, and they basically said,
"Well, you know, you have to come
in person to schedule this hearing."
And I mean, there's just all sorts of times
where I've seen judges say, "No, we need
to see your client here, or we're
not gonna address anything."
-: Explain that, I can't get him here.
They won't gimme a visa, I tried.
By the way, the record doesn't indicate
whether he tried to get a visa, does it?
-: I don't think he actually applied for a visa.
(justice sneezes) Bless you.
I don't think he applied for the visa
because his attorney at the,
his immigration attorney had advised him
that there was no point to doing so.
-: A defense lawyer would advise him to do
that differently possibly
if moving to. Simons: Perhaps.
Kafker: Yeah. -: Okay, I hear you.
I understand, you know,
so be that as it may, I think
that this specific case, there's no justice to be done.
I mean, to Justice Gaziano's point about heads, I win,
tails, you lose, everybody loses here.
I mean, if the government here is pressing for a trial
because they want justice
and they want justice for their victims,
they wanna seek a conviction,
they're clearly not dismissing this case
that's now close to 20 years old.
They're also obfuscating that ability.
I mean, we've got Mr. Baez who's willing
to put himself before the court
and the only way that he can-
-: They're worried that if this goes forward,
there are gonna be all kinds of issues with a jury trial.
He can't get here, he's going by Zoom.
He's the only one not in the room.
He's disadvantaged.
If there's any technological glitches,
when the jury evaluates his credibility,
it's gonna have him just sitting there on a screen.
You know, it's, I don't know.
They may be saying to themselves, this could be a mess.
We just don't want to do this.
-: I can understand that,
but I think we can't just worry about what ifs.
I mean, I've had times when I've been in trial last summer,
I was in Bristol County and we were supposed to be in court,
and the recording system didn't work.
I mean, there's technological glitches that happen,
we had to take the whole day off after waiting
for like, three hours hoping it was
gonna come back up.
To the Commonwealth's- -: Sorry, counsel.
I think the issues go beyond technological glitches,
which I agree, unfortunately can go,
can come up in a lot of different cases
that it seems to me
like there's a more fundamental issue here,
which is that this is the unusual waiver of presence case
where your client seems to want to be here, right?
And so it's almost like the most compelling reason
to allow the waiver of presence
is also the involuntariness of his absence.
And I think that was also part of the lower court's,
that single justice's concern, at least.
So could you address that point that even aside from,
even if we had a smooth trial,
and even assuming that the trial,
he was not unfairly treated at trial,
that even after trial, there could be an issue?
-: Sure, well, I think that that's not unlike a client
who might be in jail awaiting trial,
and they're on a bail they can't afford,
and so they decide to plead guilty
because they're offered a probationary sentence.
You could argue, I guess, that
that's not a completely voluntary waiver of rights
when you're pleading guilty to something
because it's gonna get you out on the street
sooner than if you were to-
-: But in those situations, we don't actually know, right?
Here we have counsel standing in court
saying basically, "My client wants to be here,
but can't be.
We don't have a client."
We have whole plea colloquies to try
and ensure that a plea is not like that, right?
-: There are, I would respectfully say that
that happens a lot, though, unfortunately,
especially with court-appointed clients.
But be that as it may, we're not here for that.
I think to your point though, under the circumstances,
it is a voluntary decision because it's either that
or not come at all and just not-
-: Isn't that the essence of involuntariness
on some level though,
that he doesn't have a choice, right?
-: Well, I would argue he has a choice
to not pursue his right to trial.
I mean, he could have sought to do a plea
or he could have, I mean, there's other options.
It's not just a Zoom trial or nothing.
So I think of the options that he has, this is a decision
that he's made with the advice of counsel.
I have gone to court, I've represented what his request is,
and at first the trial court judge actually allowed it,
by the way, which I thought was unusual,
but the right thing to do, in my opinion anyway.
And then she later made a decision
because of the trial court rules,
but she encouraged us to come seek some relief from you all,
hoping that we could get a little
bit of clarity, I assume.
-: Did you find any cases anywhere like this
where client wants a Zoom trial
'cause he can't get into the country
or any of these, any Zoom jury trial cases like this
that we should look at?
-: I wasn't able to, no.
I mean, there may be, I just, I didn't find any.
But if I could also, to your earlier point, just to,
I talked about the technological issues,
but also the Commonwealth had raised the issue about, well,
my client would be on his own, there'd be no supervision
as he would be in court.
And I can understand that.
But my point to that, my counterpoint
would be if a client is in court physically
and they're doing something that would obstruct justice
or doing something that's inappropriate
in a courtroom setting, the trial judge always
has the ability to have him ejected.
That does happen sometimes on trials
where a client is removed from the courtroom
and the trial proceeds without that person.
How easy would it be for a trial judge
to just tell the clerk,
press the button and they're removed.
So I think any concerns, any
what ifs can certainly be addressed.
And we've had about two, three, four years
of Zoom capabilities with these,
you know, pretrial hearings mostly.
And they've gone, I would say mostly smooth.
I mean, you hear about things here and there,
but for the most part,
I think you don't wanna
throw away this opportunity just because there's
been some bad behavior here and there.
-: I don't think, but I think if the Commonwealth agreed,
you'd be in a different position, right?
So that's why I asked whether or not you had a right.
Whether your client has a right to this.
-: Yeah, I mean, yes, I would argue that he does.
I would argue that he does be by way
of his constitutional rights
to having a fair trial and a speedy trial.
And again, I think both can be accomplished
with the technology that we have available with Zoom.
You know, the Commonwealth's concern
about these trial court rules not being followed,
and that seems to be a big point of contention.
Like, oh, well this Zoom trial is inconsistent
with the trial court rules.
I mean, if you look at Dorchester and Dedham,
they're not doing Zoom at all,
and that's in violation of the trial court rules
that says compliance and election hearings
are presumptively by Zoom.
I mean, there's lots of courts that just
aren't following them at all.
And frankly, that the rules allow for some discretion
because even if something's presumptive
or not presumptive, anything that's in there pretty much
is allowed to be modified
by the trial court judge in a given circumstance.
And as much as I know this case law
will affect much more than Mr. Baez,
I think the circumstances of this particular case
and where he finds himself would further justice.
Not just for him, but also for the alleged victims
and for the public who also has a right
or has an interest in seeing trials
adjudicated fairly and promptly.
Dewar: Could you- -: I'm sorry.
So your position is the client has,
any client has a constitutional right to a remote trial.
-: If they but one, waive their appearance physically,
and two, that's really the only way
that you can get to trial, I guess.
-: Even like the Whitey Bulger of the district court?
Someone that's been a fugitive can say,
"All right, I'll beam in now."
-: Well, I guess that's a maybe, I don't know.
I mean, Whitey Bulger was never outside of the country
that I know of that, you know, outside of the jurisdiction.
I think in that case, the federal government
certainly could have brought him in and-
-: No, but yeah, what you're saying is, you know,
if someone from parts unknown
can just say, "I want my Zoom trial."
-: I think if they're in a position
where they can't come here legally, then yes.
If they waive their presence
and they can't come here legally,
I think under those two circumstances, yes.
-: All right, you've added a third element
that they can't come here legally.
-: They can't come here legally.
The only way that he could come here for a fair trial,
he'd be violating federal law
and be charged potentially, for a new crime.
So, all right, with that,
if I don't have any other questions,
I thank you all for time and consideration.
Budd: Okay, thank you.
Now it's time for Attorney Semel.
(Attorney Simons laughs) Sorry about that earlier.
-: Good morning or good afternoon.
I think we're on the cusp.
If it may please court,
I'm Catherine Semel for the Commonwealth.
If I could just first answer Justice Wendlandt's question,
which I think defense counsel answered the same,
but just to be clear, only the defendant filed an affidavit
about his inability to come back into the United States
and he did so only in conjunction
with a single justice proceeding is dated,
in fact, about a week after the ruling
from the trial court.
It was never presented at the trial court.
It was very iffy at the trial court.
It was really defense counsel saying,
"It's my understanding he's been deported,
he can't come back into the United States."
So there's no real factual foundation.
Wendlandt: The government dispute that?
-: I think that it's-
Wendlandt: I mean, it is after all,
the federal government's rule.
-: It is unclear, and I think as was pointed out,
it's probably the amicus brief that not,
I don't have a great deal of immigration knowledge myself,
but even the amicus brief said only that it's possible
that he wouldn't be able to get a visa
due to the pending charges in this case.
So it's entirely unclear and certainly if things
proceeded at the trial court after this decision
where speedy trial, due process was brought up,
this would have to be fully litigated
and determine exactly what was happening.
Whether a visa had been applied for,
and whether, in fact, the defendant was unable
to come back into the United States.
But basically what happened at the trial court
was that the judge reconsidered her ruling
allowing the Zoom trial
on the basis of the standing order,
which the standing order in effect in the district court-
-: Seems a little artificial.
Are we really, are the rules really governing here
or is this sort of a bigger picture issue?
You know, it seems like the rules
could accommodate this, right?
-: I think it's possible.
I think it's possible there's a residual
kind of clause that says that any event that-
-: You'd agreed and they'd agreed,
and you both thought this was in the client's interest,
it would be a rule violation to have this done by Zoom.
I understand why, you know, you may not
want to agree to this.
I get it, but rules seems like it's kind of (indistinct).
-: Personally, I think it's possible
that it could be in the judge's discretion
if both parties agreed and the judge, the court
felt that it was appropriate,
and all the safeguards were in place.
That if everything came together,
I don't personally think it would be an abuse of discretion
for the judge to determine
that a remote trial could be held
or that the defendant could be remote.
But I think that definitely
over the Commonwealth's objection,
it would be an abuse of discretion to allow it
and it was not an abuse of discretion
to deny it in this case.
-: Can I ask, so if he couldn't,
again, if he couldn't get a visa and he tried,
and he's trying to clear his name
but he can't do it.
Does he have a right to a Zoom trial over your objection?
And if not, why?
-: I don't believe he does.
I mean that- -: He just can't, he can't,
I mean, I understand maybe he hasn't done enough here,
but he can't exonerate himself
if he can't get into the country
if you won't let him do a Zoom trial.
I'm just trying to figure out
does he have a right to a Zoom trial?
And you know, he's fully informed,
the judge gives a detailed colloquy, you know,
"You're not gonna be in the room.
They're gonna be, you're at a disadvantage."
And he goes, "Judge, I just, I want to clear my name.
They won't let me into the country."
Does he have a right to Zoom trial in that context?
-: I don't think he has, I don't think
the defense has pointed- Kafker: Why not?
-: Because you have a right to be present.
Clearly, the defendant has a right
to be present at his trial,
but I don't think he has a right
to dictate for the court that he wants
to be present in this particular way.
That is not the way trials are
conducted in the Commonwealth.
-: Federal government won't let him in.
If, again, I'm not saying that's established here,
but we're gonna have a case
where federal government's not gonna let them in,
and I just try, I'm trying to understand it.
I get why you don't want to do this.
I'm just trying to understand whether he
has a right to try to exonerate himself.
-: Yeah, I think that his remedy is
to file a motion to dismiss the charges,
which I realize is not the exact same thing
as going to trial and being acquitted,
but I think that that is his remedy to do that.
And that- Wendlandt: On the basis of?
-: On the basis of, you know, speedy trial, due process,
all the things that were articulated by Justice Lowy,
all the things that were not raised yet
in this case have not been, you know,
argued at the trial court.
But you know, this decision is,
the case doesn't end here, you know?
If the court rules in the Commonwealth's favor,
then that just means that there is no Zoom trial.
-: Why, I know Justice Kafka understands your reasoning.
Can you explain it to me?
Why is the Commonwealth not agreeing,
given that the defendant
is already served any possible time?
-: Yes, because that would
be another important consideration, absolutely.
Inability to impose a sentence.
But there are other reasons.
First of all, you know, it just,
it sets a precedent for other cases
where it's merely perhaps inconvenient
for a defendant to come.
Other cases where an individual is, you know,
has other obstacles to coming.
But as to the trial itself, you know,
there's a difference, and Justice Kafker articulated
some of these in Vasquez Diaz.
There's a difference in testifying via Zoom.
And the defendant, in this case, could clearly testify
in this case if he wanted to.
-: Go against him.
The the thing that goes for you is if he gets convicted,
you can't do anything about it
'cause he's outta your jurisdiction unless you-
-: Well, and I'd add that not only can you not do anything
because it's outta your jurisdiction,
but because as a matter of law,
you can't impose a further sentence.
Kafker: Right. (laughs) -: Yes, so in this-
-: So if this decision were narrowly tailored
to Mr. Baez, the government would be fine
because there would be no precedent?
-: No, because we do think
that the Commonwealth should have a say
in how these trials are conducted.
If the defendant is just requesting
that the traditional trial change will come-
-: How did the pretrial motions get,
or pretrial activity get resolved?
Were they by Zoom?
-: I believe Mr. Baez was by Zoom or was excused.
Wendlandt: Okay. -: I don't recall precisely,
but yes, yeah.
And we've agreed to that in a certain, I mean,
we didn't oppose when he filed a motion for new trial.
And that was resolved,
but it wasn't an evidentiary matter.
-: It's only when the defendant wants
to participate by Zoom in a trial
as to which there's no further punishment possible
that the government is objecting.
-: We are objecting to the procedure.
-: So in effect, what the government is doing
is keeping Mr. Baez out of the country.
-: We don't know if that's the case.
We don't know if he actually can't come back-
-: Now assuming that there was an affidavit
from Attorney Church that the law's immigration law
is such that if he has pending charges,
he can't come into this country.
Assuming that record was better
as Justice Kafker was suggesting.
-: That might be the result here.
That might be the result.
-: Right, 'cause there's no further punishment
available at the state level.
The only punishment that Mr. Baez is suffering
is his inability to come back
to a country where he grew up.
-: As far as we know. Georges: Well, there would
still be the conviction, right?
I mean, there might not be any subsequent punishment,
but he could be convicted.
Semel: Yes. Georges: Right?
-: He could certainly be convicted again.
Gaziano: And could he be re-sentenced again?
Georges: No. -: No, I don't believe so.
I don't believe so, Your Honor.
But of course, you know, that is not the typical case.
But is this case?
It's correct, but I really think
that it is gonna be years
before we flush out in the courts,
all the ways in which the defendant
can challenge a conviction
that's done in any way remotely.
And I think we saw it in Commonwealth versus Kern,
where a bench trial took place.
The defendant didn't object to being remote.
And there was an appeal with a litany of claims
in that case, which were rejected,
but which were considered, obviously,
as to presence, as to ineffective assistance.
You know, there are definitely differences
in conducting important witnesses, particularly,
or defendants, you know, by Zoom.
And this case is particularly problematic
because he's not in, for instance, you know,
ICE custody in New Hampshire.
He could be, you know,
he's sitting in a Starbucks somewhere.
I mean, there's no control
over the way it's going to occur.
This is a technological point.
you know, there's no control
over the setup, and his access,
and all of these things.
There's no oversight of it at all.
And I think that's a problem,
but it's also just a problem
of having witnesses appear by Zoom.
And it changes the character of the proceeding
where the defendant doesn't even have
to physically show up to trial.
Wendlandt: Remind me again in Kern,
was it the government that wanted to go forward by Zoom?
-: I think it was agreed.
There was no objection brought.
I don't think it was spelled out in the decision,
but I know that there was no objection.
-: Can we return to the topic that we were
discussing earlier with your fellow counsel?
Can you talk about the practicalities
of what's gonna occur here?
Let's say, hypothetically,
that the single justice were affirmed
and then things move forward.
What is gonna happen next?
-: I think the ball is probably in the defense court
as to what they're going to do and whether they're,
and what action they're gonna take with regard to-
Gaziano: Would he have a Rule 36 issue defense?
-: Possibly, possibly.
I mean, none of this has been flushed out.
None of it was raised, you know?
There are ways for the case to conclude
and there are claims that can be brought by the defense.
None of them have been brought yet.
And I think Justice Lowy made that clear
in his decision that none of those were-
-: Commonwealth hasn't waived any argument
that the defendant should be tried in absentia?
-: Right, we haven't ever raised that
and we haven't waived it.
-: Well, can I be a little more specific then?
I appreciate everything you just said, which is helpful,
but more specifically, let's take as a given
that the affidavit is correct,
which simply says he cannot be here.
Let's just assume that that's correct.
And so he cannot be here.
And let's also assume he does not obviously,
want to plea to these charges
because the whole point of why,
yeah, you understand.
I think that could be potentially taken as a given.
So given at least those parameters,
what do you think would,
as a practical matter occur,
will he be defaulted?
-: I think he hasn't been defaulted yet.
I mean, the judge, there was some question at,
and I believe the last hearing
about entering a default,
and defense counsel asked for there not
to be a default entered.
And I believe the judge agreed with that.
And for potential immigration purposes
that it would just make it harder
for him to get back in.
So there's no plan to have a default entered at the moment.
I don't know precisely what steps they'll take
at the trial court,
but I don't believe this would default right now.
-: What is the Commonwealth's interest
in maintaining this criminal prosecution
after if we were to affirm the single justice
and then we send it back and he's not here,
and no one wants to default to Commonwealth,
doesn't seem to even be asking to default him.
Can you talk about the interest
at that point for the Commonwealth?
-: If, I'm sorry, if you affirm?
-: If we affirmed the single justice.
So that means that it's sent back.
It's essentially status quo.
He can't have a trial because he can't get here,
and you've successfully convinced the court
that we can't force the trial court
to have him appear by Zoom.
No one seems to be requesting that he be defaulted.
It's just gonna hang there.
Does the government have an interest
in continuing the case at that point?
-: I think we have an interest in resolving the case
if the defendant can be present.
We have, miraculously, our witnesses in this case
and two very old cases, we had our witnesses available.
But I think our position is
that we do not wanna have a remote trial and-
-: Always dismissive without prejudice.
Let 'em come in and then take the charges out again,
and have your trial.
-: That's one possibility.
It's also a possibility that the case will be dismissed
by some action that the defendant takes.
You know, and you know, that's a choice
that we've made in preceding with this case,
and we think it's important.
We think it's, we don't think
that a Zoom trial is appropriate in these circumstances.