On November 20, 2020, we were joined by the Boston Bar Association and the Massachusetts Association of Criminal Defense Lawyers in filing an amicus brief in a case before the Supreme Judicial Court about the fundamental rights of the accused, Commonwealth v. Vazquez Diaz.
Over the last eight months, the Commonwealth and the country have confronted two overlapping crises: the COVID-19 global pandemic and police violence against people and communities of color. Both of these crises disparately cause premature death and community harm for people of color, Black and Latinx people in particular. This case puts these crises in dialogue. Given safety concerns about in-court hearings amidst an ongoing airborne viral pandemic, a Superior Court judge has ordered Mr. Vazquez Diaz to undergo a virtual suppression hearing, over his objection and despite his willingness to wait to hold the hearing until it is safe to do so indoors. Mr. Vazquez Diaz is a native Spanish speaker who requires the assistance of an interpreter and who faces more than a decade in state prison on a drug trafficking charge carrying a mandatory minimum sentence. His motion to suppress evidence and statements—a motion that alleges unlawful police conduct—may well determine the outcome of his prosecution.
Requiring virtual suppression hearings upends the fundamental rights of the accused and will work particular harm against defendants of color and their communities. The character of a suppression hearing is nearly indistinguishable from a trial, where the credibility of witnesses and the participation of the community through public attendance are central to factual determinations and the legitimacy of the hearing. “[T]here is power in the act of observation: audiences affect the behavior of government actors inside the courtroom, helping to define the proceedings through their presence.” Suppression hearings raise additional concerns because of the available remedy: the exclusionary rule, which exists to deter unlawful police conduct. At a time when public concerns about police practices are at their zenith, when legislation is being debated about curtailing aggressive police tactics, and when the country is newly awakened to the fraught history and present of policing of people and communities of color, ensuring full and equitable public access to hearings that are centrally about whether the police engage in unconstitutional practices is of paramount importance—especially where such hearings may offer notice of systemic policing issues.
 Jocelyn Simonson, The Criminal Court Audience in a Post-Trial World, 127 Harv. L. Rev. 2174, 2177 (2013-2014).
Read Our Brief here: