Man was indicted for armed robbery, witness intimidation
By Eric T. Berkman
BridgeTower Media Newswires
BOSTON, MA — An evidentiary hearing in a felony case could be conducted via Zoom videoconference, a Superior Court judge has ruled.
The defendant, Hipolito Masa Jr., argued that while an in-person hearing of his motion to suppress statements and tangible evidence against him would be too risky amid the COVID-19 pandemic, holding the hearing remotely would violate his constitutional right to be present for his hearing, to confront witnesses against him, and to a public proceeding.
Judge Kenneth W. Salinger disagreed.
“The Court agrees with Mr. Masa that, during the current public health emergency, conducting this hearing with all participants physically present in the same courtroom poses an unnecessary risk to everyone involved,” Salinger wrote.
“But it further finds that: (i) under these unusual circumstances, it is necessary to deny Defendant’s right to face and examine witnesses in the same physical space in order to protect the health and safety of all participants; (ii) conducting this hearing using the Zoom video conference platform, with ... safeguards [in place] will adequately protect Mr. Masa’s constitutional right of confrontation and reasonably assure the reliability of all testimony consistent with his due process rights; and (iii) allowing full public access to the Zoom proceeding satisfies constitutional requirements,” Salinger added, overruling the defendant’s objection to the hearing.
The 10-page decision is Commonwealth v. Masa.
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Proper balance?
Meghan Kelly, a spokesperson for Middlesex County District Attorney Marian T. Ryan, said Salinger’s ruling “reflects the ongoing practice of the Trial Court to continue to ensure access to the courts while working to address both public safety and public health in the midst of a global pandemic.”
Defense counsel Debra D. Dewitt of Lowell, however, suggested that the decision did not properly balance health concerns with justice concerns.
“Technically, you can see [witnesses over Zoom], but … you can’t read their body language. You can’t effectively impeach a witness because you have to share a document through a process on Zoom rather than being able to walk up and say, ‘Read this. Does this refresh your memory?’ The whole process is circumvented on Zoom,” said Dewitt, who is weighing a possible appeal.
She added that ever since the courts started replacing court reporters with the “For The Record” system to transcribe proceedings, it has been difficult to get an accurate transcript without important pieces coming back as “inaudible.” Conducting hearings remotely only exacerbates that issue, she said.
“I haven’t yet gotten the transcript back for this hearing, but I suspect it’ll be similar, and I’ve heard from other attorneys that they’ve had similar issues,” she said.
Ultimately, Dewitt continued, the court decided that public safety concerns over COVID-19 outweighed her client’s confrontation rights.
“But I don’t think anything should outweigh the defendant’s right to confront his or her accusers or his constitutional rights. If it’s not safe to do this as an in-person hearing, the hearing should be put off until a date when we can do this in court.”
Other local criminal defense lawyers expressed similar concerns.
“The current pandemic is creating the necessity to push the limits of a defendant’s constitutional rights in a direction that is concerning,” said Barnstable attorney Holly A. Harney. “Certainly in these unusual times it has become necessary to weigh a defendant’s rights to face and confront the witnesses in person in a public setting against the risks related to COVID. However, denying the defendant his basic constitutional rights ... sets a precedent that could eventually transition to jury trials and further violate a defendant’s rights.”
According to Benjamin H. Keehn of the Committee for Public Counsel Services, every federal appellate court to consider the question of evidentiary hearings via videoconference has held that such a medium cannot satisfy the defendant’s right to be present.
Additionally, Keehn said, internet-based videoconferencing can freeze audio and video feeds — disruptions that affect users differently depending on the quality of their internet connection.
“So it is possible that a defendant’s virtual presence could effectively be denied for a part of the hearing without his attorney or the judge even realizing it,” Keehn said. “All of us have been hurt by this pandemic, but the fact that courtrooms are still unsafe is not a legitimate reason to insist that criminal defendants settle for a virtual hearing when a real hearing ... is what the law and basic fairness require.”
Vikas S. Dhar, a defense attorney in Charlestown, emphasized that the right of confrontation is about more than asking questions.
“A skilled lawyer or trier of fact can assess credibility as much on body language as actual testimony,” Dhar said. “Dishonest witnesses tend to fidget, perspire and have difficulty maintaining eye contact. These critical emotional cues can become ambiguous when a witness is not physically present.”
Murat Erkan of Andover pointed out that counsel does more than just question witnesses in hearings. Attorneys also engage in critical contemporaneous communications with their clients, which can provide important insight into factual issues regarding events the defendant but not the attorney witnessed, he said.
“Judge Salinger suggested that breakout rooms can ensure private attorney-client communication,” he said. “But he assumes that a defendant will feel comfortable interrupting lawyers, judges and police witnesses to make a brief comment to his counsel. [And he] underestimates the frustration which the court will certainly experience with a defendant who takes full advantage of the invitation to use breakout rooms, leading to repeated delays.”
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Motion to suppress
Masa was indicted for armed robbery, witness intimidation, breaking and entering in the daytime with the intent to commit a felony, and assault and battery with a dangerous weapon.
He moved to suppress statements he allegedly made to police and any tangible evidence seized as a result.
Salinger scheduled a hearing and informed the parties that it would be conducted remotely using Zoom.
Masa filed a written objection.
Specifically, Masa asserted that while an in-person hearing posed a “grave risk to all participants,” a hearing over Zoom would violate his constitutional right to be present and to confront witnesses against him while presenting witnesses in his favor.
He also argued that a hearing via Zoom would deprive him of his right to a public hearing and the public’s right to attend.
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Preservation of rights?
Salinger pointed to the SJC’s statement in its 2019 Commonwealth v. Fontanez decision that the right to confront witnesses may, in appropriate cases, bow to other legitimate interests.
“Proximate physical presence is not the essence of confronting a witness; what matters most is the ability of a defendant to test and challenge a witness’s testimony through cross-examination,” he said. “Consistent with these principles, allowing a prosecution witness to testify during a criminal trial by two-way video conference or two-way closed-circuit television does not violate the defendant’s right to confront the witnesses against them where doing so is necessary to protect the health or well-being of the witness or someone else, and the defendant is able to cross-examine and confront the witness through the video platform.”
Here, Salinger stated, Zoom had “very real advantages” over a courtroom hearing during a pandemic.
“[I]t is somewhat easier for the judge and parties to see and hear witnesses who testify by video and are sitting near the camera on a computer or other device, compared to the same witness testifying from far away in a courtroom. And since everyone is participating remotely, no one needs to be masked during the hearing,” the judge explained.
He added that, in a previous evidentiary hearing before the same court, by keeping Zoom displays on each device in “gallery” view, the defendant and witness were able to see and face each other, and defense counsel cross-examined the witness as effectively as he would have in a courtroom.
Meanwhile, Salinger said, Zoom’s “share screen” function enabled the parties to see exhibits better than they would in a courtroom hearing, and its “breakout room” function fostered private discussions between defendant and counsel.
With respect to the issue of public access, Salinger pointed out that the Zoom link can be shared with all who want to observe.
Accordingly, he concluded, Masa’s objection should be overruled.
