This afternoon, the Supreme Judicial Court of Massachusetts issued its Fifth Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic. The Order does no favors to the many persons accused of crimes, still with the presumption of innocence guaranteed by our Constitution. Jury trials are scheduled to resume in some courts, in what is called Phase 2, beginning March 1, 2021. But, having represented clients in courts throughout the state, the reality is, the courts that will actually conduct them in Phase 2 are few and far between.
Two other provisions that have a tremendous detrimental impact on the rights of defendants are: (1) during Phase 2, jury trials in Superior Court are going to be in front of a 6-person jury, instead of a 12-person jury (providing a defendant consents), and (2) for persons held under what is known as our “Dangerousness Statute”, the time that they can normally be held – either 120 days or 180 days – still does not begin to count down until at least Phase 2 is over. This means that if a person were held under that statute starting in March, 2020 – when the first SJC Order came into effect – no time has counted down from their original hold of 120 days or 180 days. Meaning – a person could actually be held up to 20 months (if in Superior Court), as opposed to 6 months.
The court system was backlogged before COVID-19 all but shut it down in March, 2020. Jury trials are getting more and more backed up by the day. Some counties have implemented a “De Novo” trial system in Superior Court for certain types of cases – meaning, a defendant could waive the right to a jury trial and have a judge decide the case. If the defendant was found guilty, the defendant could then elect a jury trial. On its face that seems like a solid step in the right direction. But, as of now, the District Attorney’s office in that jurisdiction has to agree as to what case could be considered for a De Novo trial. Thus, not many De Novo trials have taken place. Quite frankly, many domestic violence cases or assault and battery cases should go to a De Novo trial. In many of those cases, the District Attorney’s Office knows full well an alleged victim is not cooperating, cannot be found, and simply will not appear for trial – leaving the prosecution with no case. But, the simple truth of the matter is that many decision makers in the District Attorney’s Office (and some are worse than others) would rather get a pound of flesh out of an accused by having the accused remain in custody as long as possible even when it is a case that the District Attorney’s Office knows it will have to dismiss. The SJC could take the De Novo system a step further during these extraordinary times and Order De Novo trials be available for a broader class of cases and by having them at the defendant’s option.
So, as it stands, unless new solutions are implemented, jury trials will continue to get backed up and once court operations resume fully, there will be a backlog that is beyond a person’s worst nightmare.
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