Part 4: COVID-19 and Arrests
What happens when a person gets arrested during this COVID-19 crisis? The truth is this may be the worst time in the history of Massachusetts to get arrested. Every day the court is scrambling to figure out its schedule, how much staff should be in the court, or if they should even be open. All the while trying to keep an eye of the pandemic and the Governor's new plans.
If you were arrested on March 16, or March 17 you were likely given an arraignment over the phone. There are constitutional issues when it comes to telephone arraignments. Arraignments is an official hearing where a defendant hears the charges he or she is facing and whether the person will be released from custody. An arraignment is a significant event during the criminal process and the accused has a constitutional right to be present during every significant event.
Even when a person is hospitalized, a judge will go to the hospital with a clerk, police and probation to arraign a defendant in person. A defendant needs to be brought in person in front of a judge as soon as it is possible. With the COVID-19 concerns forcing telephone arraignments there are significant constitutional concerns that need to be addressed in the future.
On March 18, 2020, all courts are supposed to be open again and arraignments are supposed to be in court. The defendants arraigned over the phone really should be brought into court and arraigned again. However, it has yet to be announced if every court house intends to bring in every telephone person arraigned on the phone.
Why is showing up in person so important? One of the reasons is that a person has a right to face their accuser. The defendant has a right to participate in their own defense. Therefore, on a normal day a defendant gets to speak to their attorney in person prior to the arraignment. However, it was unclear if all attorneys were able to speak to defendants in person prior to the arraignment or whether some attorneys were forced to use teleconference.
To complicate matters, if a person was held on bail, the defendant has a right to a bail review in superior court in that county. The superior court is allowed to review the bail set by the district court judge to see if it is was fair and reasonable. With the current health crisis, it is unclear if defendants held on bail would be able to get a timely bail review.
There is also a 58A statute that allows a defendant to be held without bail. If the defendant is charged with certain crimes, the prosecutor is allowed to move for detention under the 58A statute. If the court finds a person a danger, the defendant can be held in jail for a period of time without bail. Holding someone without bail is a very significant thing to do, therefore, as part of the statute a person is allowed to have a full hearing. The hearing can be extended by the prosecutor for 3 days and by the defendant for 7 days in order to prepare for such an important event. If granted, during the extension, the defendant is held without bail. These hearings often require both sides to bring in witnesses to support their argument. It is unclear at this point how the court wants to address these types of hearings.
Finally, the jails are a huge concern at the moment. In my next post, we will discuss how the current pandemic is affecting those held in custody. Every person the court is holding in jail with or without bail is creating a greater health risk for those in jail, those who work there, and the public.