How Massachusetts Courts Are Functioning and Handling Hearings During the COVID-19 Pandemic

How Massachusetts Courts Are Functioning and Handling Hearings During the COVID-19 Pandemic

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How Massachusetts Courts Are Functioning and Handling Hearings During the COVID-19 Pandemic

By Sara Attarchi

State Courts

It seems that every court is handling scheduling hearings differently.  In trying to schedule a hearing, the first step is contacting each court.  There have been several orders from the Supreme Judicial Court (“SJC”) since March 13, 2020.  The SJC standing orders and other guidelines may be unclear, and it is important to talk to a lawyer if you have any questions.  This blog focuses on the most recent announcements from the courts.

Pursuant to the most recent SJC Standing Order, effective April 6, 2020, courts are officially closed for public and in-person hearings, until at least May 4, 2020, with very limited exceptions.  Even most “emergency matters,” are being held virtually (i.e., by telephone, videoconference, email, or comparable means, or through the electronic filing system) and without the physical presence of the parties, attorneys, or other members of the public.

Some courts have been closed completely, due to confirmed cases of COVID-19 in specific courthouses.  For example, Suffolk Superior Court has been operating out of the Middlesex Superior Court for the past week.

The recent orders do not prevent the courts from hearing non-emergency matters that can be resolve virtually.  However, as mentioned above, every court seems to be applying the SJC orders differently.

The meaning of emergency hearing has been interpreted differently by different courts.  However, each court department has issued standing orders, which include the definition of “emergency matters.”  Generally, a hearing involving a request to release someone from custody can be scheduled telephonically.  The individual in custody generally appears via video, the attorneys via phone, and the judge and court personnel are in the courtroom.  Motions and other documents are sent to the court through fax or email for the judge’s review.  Please see the links below for a complete list of matters considered to be an “emergency.”

All jury and bench trials, in criminal and civil sessions that were scheduled to begin between March 13, 2020 and May 1, 2020 are in the process of being rescheduled.  The earliest date for scheduling is May 4, 2020; however, we have found that many courts are scheduling dates even further out than May.  This seems to be in part because of the uncertainty of the duration of the COVID-19 pandemic, and because of the enormous back-log created by the continuance of cases all across Massachusetts.  There is an exception for a bench trial – which is a trial before a judge, as opposed to with a jury – to be conducted not in-person, only if the parties and particular court agree.

If a party is able to show an exceptional circumstance for a trial or evidentiary hearing that was postponed as a result of the order, an exception can be applied for to the court.  The exception however, can only be granted if the Chief Justice of that specific court department approves.  Regardless, a jury trial or empanelment of any jury or grand jury is strictly prohibited by the SJC Orders.

Interestingly, the SJC orders also include that any continuance is exempt from a computation of speedy trial, pursuant to Mass. R. Crim. P. 36.  Statutes of limitation are also tolled during this time.  Other court-ordered deadlines are also tolled, except for probation termination dates.

Due to the current unprecedented circumstances, if you have the ability to hire a lawyer to assist you with your case, we recommend that you do so.  The courts are generally more responsive to a lawyer’s attempts to schedule an emergency hearing.

Please reach out to the attorneys at Simons Law Office if you have any questions about court hearings.  We are here to help.

Below are links to the applicable and current Standing Orders by the Massachusetts Supreme Judicial Court as of April 7, 2020:

Supreme Judicial Court Order regarding court operations under the exigent circumstances created by the COVID-19 (coronavirus) pandemic

Trial Court Emergency Administrative Order 20-7: Trial Court Order Supplementing the Supreme Judicial Court Order Regarding Court Operations under the Exigent Circumstances Created by the COVID-19 (coronavirus) Pandemic

Additionally, below are the links for current Standing Orders issued by the Superior Court, Boston Municipal Court, Juvenile Court, and District Court, as of April 6, 2020:

Superior Court Standing Orders

Boston Municipal Court Standing Orders

Juvenile Court Standing Orders

District Court Standing Orders

The Supreme Judicial Court’s Recent Ruling Regarding the Release of Individuals Held During the COVID-19 Pandemic

As a response to the pandemic, the Massachusetts Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers petitioned the Supreme Judicial Court for an order to release categories of individuals detained and serving sentences in the Commonwealth of Massachusetts.

The Supreme Judicial Court specifically decided that, to decrease exposure to COVID-19 within the correctional institutions, people held on bail pre-trial are entitled to a “rebuttable presumption of release.”  This ruling does not apply to those who are not being held without bail under G.L. c. 276 § 58A, or who have not been charged with violent offenses, which the Court specifically listed in an appendix to the order.

Still, a person – or their attorney – must individually petition the trial court for release.  It is not automatic.  The “rebuttable presumption” creates a burden on prosecutors to show by a preponderance of the evidence, that an individual is a dangerous to the community, or presents a very high risk of flight.  If a prosecutor cannot meet this burden, the individual should be released on “personal recognizance,” and not held on any bail amount.  This does not preclude the individual from being placed on other conditions of release while the case is pending.

Additionally, those who have been serving sentences for less than sixty days may request to have sentences revised or revoked under Mass. R. Crim. P. 29.  Those who are pursuing appellate proceedings or a motion for a new trial may seek a stay of execution of sentence pursuant to Mass. R. A. P. 6.

Please contact the attorneys at Simons Law Office, to further discuss options to request the release of an individual who is in the held in a correctional institution. Our attorneys are here to help.


Federal Court

The United States District Court of Massachusetts has issued multiple orders during the COVID-19 pandemic relating to procedures.

Release of Pretrial Detainees

Attorneys representing people charged in federal criminal court are reviewing the cases of pretrial detainees, to identify individuals who should be released due to health circumstances or other extraordinary circumstances.  Federal probation officers are conducting interviews and preparing pretrial services reports.  Attorneys are filing motions to request the release of their clients who are being held as pretrial detainees.

Presentence and pretrial services reports are conducted via video teleconference with an individual detained, if the facility has capability to conduct such a video teleconference.  Defense counsel may be present for the probation interviews, via video conference as well.

Teleconference Video and Telephone Conferencing Hearings

Pursuant to the CARES Act, Pub. L. 116-136, 134 Stat. 281, video teleconferencing, or telephone conferencing is authorized for certain criminal proceedings, such as: Detention Hearings, Initial Appearances, Preliminary Hearings, Waivers of Indictment (Rule 11 hearings), Arraignments, Probation and Supervised Release Review Proceedings, Pretrial Release Revocation Proceedings, Appearances pursuant to Rule 40 of the Federal Rules of Criminal Procedure, Misdemeanor Pleas and Sentencings, as described in Rule 43(b)(2) of the Federal Rules of Criminal Procedure, and Proceedings under chapter 403 of title 18, United States Code (commonly known as the “Federal Juvenile Delinquency Act”), except for contested transfer hearings and juvenile delinquency adjudication or trial proceedings).

The consent of the individual charged, including a juvenile, is required for the hearings to be conducted through video telephone conferencing or video conferencing.

Felony Pleas

The United States District Court of Massachusetts Chief Justice has further ordered that “felony pleas under Rule 11 of the Federal Rules of Criminal Procedure and felony sentencings under Rule 32 of the Federal Rules of Criminal Procedure cannot be conducted in person in the District of Massachusetts without seriously jeopardizing public health and safety.”

This provides the authority to a judge in federal court, to make findings with specific reasoning that a plea or sentence of a felony case, may not be delayed without a “serious harm to the interests of justice.”  In that case, the plea can be conducted by video teleconferencing, or telephone conferencing.  This specific order also requires the consent of the individual charged.

Jury Trials

The Massachusetts Federal Court has ordered that all jury trials scheduled to begin on or before May 29, 2020 are continued pending further order from the Court.

The period of any continuance entered as a result of the order is excluded under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A), due to the Court’s finding that “justice served by taking that action outweigh the interests of the parties and the public in a speedy trial.”

The court has, however, recognized an individual’s right to a speedy and public trial, pursuant to the Sixth Amendment of the United States Constitution.  An individual charged, and detained pretrial, can seek an exception to the order, by way of a motion directed to the District Judge assigned to the case, and any exception ordered by the Judge must be with the approval of the Chief Judge.

Grand Jury Proceedings

All regularly scheduled grand jury proceedings in the District of Massachusetts are continued to at least May 29, 2020.  However, the United States Attorney’s Office may schedule grand jury sessions for emergency or essential matters.

Current grand jurors are required to continue the normal practice to call in each Friday after 5:00 p.m. to the number provided to them by the U.S. Attorney, to receive the recorded message informing them whether or not they must appear for grand jury service the following week.

Please reach out to the attorneys at Simons Law Office with any questions.  We are here to help.

Below are links to some of the recent orders of the United States District Court of Massachusetts:

General Order 20-9: Coronavirus -Order re Release of Pretrial Reports to Counsel in Criminal Cases

General Order 20-11: Coronavirus – Order Concerning Video TC for Criminal Proceedings

General Order 20-12: Coronavirus – Order Concerning Video TC for Felony Pleas and Sentencing

General Order 20-13: Coronavirus – Supplemental Order Concerning Jury Trials and Related Proceedings

General Order 20-14: Coronavirus – Supplemental Order Concerning Grand Jury Proceedings

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