By Dorothy Atkins

Law360 (November 25, 2020, 4:40 PM EST) -- The Boston Bar Association has urged the Massachusetts Supreme Judicial Court to hold an upcoming hearing in a criminal case in-person, arguing virtual hearings can cause unconstitutional disparities for low-income communities and people of color.

In a 40-page, Nov. 20 amicus brief, the bar argued that virtual hearings unfairly impact minorities and low-income households, compounding hardships they already face in light of the COVID-19 pandemic and systemic racial injustices.

"Ensuring that defendants and communities of color have full and equal access to our courts and receive the protection of their fundamental constitutional rights is critical to our racial justice work, particularly during a global pandemic when they and their loved ones are specifically at heightened risk of death," the brief says.

The bar filed its amicus brief in Vazquez Diaz's appeal of a trial judge's ruling rejecting his request that a hearing on evidence suppression be held in-person rather than online.

Diaz, who speaks Spanish and requires an interpreter, faces more than a decade in prison on a drug-trafficking charge, but he sought to suppress certain evidence and statements in a motion that alleges unlawful police conduct, according to court documents. The case headed to the Supreme Judicial Court for oral argument on Dec. 7.

The bar argued in its brief that a ruling on Diaz's evidence suppression request may determine the outcome of his prosecution. Therefore, any potential biases from virtual hearings could be particularly impactful in this case and other cases involving similar evidence suppression motions, which the bar noted rely on the credibility of witnesses and the participation of the community.

"Requiring suppression motions to be heard virtually upends the fundamental rights of the accused and will work particular harm against defendants of color and their communities," the brief says.

The bar also argued that disparities in internet access and broadband connections could adversely affect not only defendants, but their families and supporters as well, along with victims, witnesses and public observers, in violation of a "slew of constitutional rights."

"Virtual hearings erect barriers for poor people and people of color due to racial and socioeconomic disparities in access to broadband and Zoom-capable devices," the brief says.

To protect against the potential inequities, the bar suggests the justices implement certain procedural protections for defendants who are willing to consent to a virtual hearing to ensure they are informed.

Boston Bar President Martin F. Murphy of Foley Hoag LLP said in a Nov. 23 statement that virtual hearings can exacerbate "profound inequities and systemic racism in the Commonwealth's criminal cases."

"At a time when the courts, the BBA and the wider public are focused on those disparities, it is especially important to be vigilant not to exacerbate them," he said.

Representatives for the district attorney's office and counsel for Diaz didn't immediately respond Wednesday to requests for comment.

The Boston Bar is represented by Katharine Naples-Mitchell of the Charles Hamilton Houston Institute for Race & Justice, Harvard Law School, Chauncey B. Wood of Wood & Nathanson LLP and Meredith Shih of Harvard Law School.

The Commonwealth is represented by Shane T. O'Sullivan and Cailin M. Campbell of the Suffolk County District Attorney's Office.

Diaz is represented by Benjamin H. Keehn and Rebecca Kiley.

The case is Commonwealth of Massachusetts v. Vazquez Diaz, case number SJC-13009, in the Commonwealth of Massachusetts Supreme Judicial Court.

--Editing by Philip Shea.

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