Has COVID been good for criminal defendants? I have struggled with this question for the past year and a half. There have been some changes to court policies that argue in both directions.
On the one hand, the repeated delays, lack of available jurors, and state-ordered pause on the Speedy Trial clock are bad for the rights of the accused. Having the dark cloud of a criminal case hanging over your head is awful, especially if it goes on for years. Even if you are not convicted or sentenced, you are basically on probation, because you can be sent to jail immediately for picking up a new case. The constant state of limbo can be extremely draining, especially if you are being detained.
However, COVID has also opened up possibilities for making the system fairer to defendants. For example, most courts are allowing criminal defendants to attend routine pretrial hearings by Zoom. This spares them from having to take a day off of work, and spend hours in court, only to receive a new date to return to court. Also, courts have been assigning “viability dates,” to see if the Government can prove their case, before scheduling it for trial. It used to be that defense attorneys and defendants had to go through the full stress of preparing for a jury trial, when it is not even clear that the Government will have the witnesses they need.
In the past, I would fully prepare for trial, spending hours and hours of my client’s time, only to have the case dismissed when a witness fails to show up. Now, that same case can be dismissed when the witness fails to show for a “viability” date. It is hard to overstate the time and stress saved by this one development.
The COVID emergency has also made many judges more reluctant to issue bench warrants on minor matters. For example, if someone is summonsed to court for Driving on a Suspended License, or even Shoplifting, and they fail to show up for court, the arrest warrant is no longer automatic. Some prosecutors have taken the position that, if the case is going to be dismissed on court costs anyway, it does not make sense to have someone arrested. Many of these cases are getting dismissed outright, but in other cases, judges are giving defendants a second bite at the apple by re-summonsing them instead of issuing the warrant.
These developments are little comfort to those detained on serious charges pre-trial. In many cases, defendants are detained without the possibility of posting bail. In the past, this practice was justified by the temporary nature of the pretrial detention. But when the pretrial detention without bail gets extended indefinitely as a result of COVID, it raises serious due process concerns. Because the Massachusetts courts have been so willing to circumvent defendants’ Constitutional guarantees, it is only a matter of time before the delays and indefinite pretrial detentions are challenged in Federal Court. Just because the Massachusetts Supreme Judicial Court believes that COVID justifies infringing on Constitutional Rights, it does not mean that the United States Supreme Court will feel the same. To the contrary, they have been quick to slap down state-sponsored COVID measures that infringe on Free Exercise of Religion. It is hard to imagine that they will put a stamp of approval on denying defendants rights indefinitely in the name of COVID.
While any federal relief may be months or years away, Massachusetts courts may regret being so quick to abridge Constitutional rights based on COVID. Massachusetts attorneys that know how to preserve appellate rights, may be able to reverse state convictions if and when the federal courts get involved in evaluating the Commonwealth’s COVID court practices.