Mass. Justices Dash Deported Man's Hope For Remote Retrial

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Massachusetts' high court ruled Friday that a man deported to the Dominican Republic cannot appear remotely for his retrial on charges that the justices previously vacated, citing court rules.

In a brief unsigned opinion, the Massachusetts Supreme Judicial Court said current standing orders governing remote appearances don't allow for defendants to appear remotely for a jury trial, especially without prosecutors' consent. 

Hairo Baez had sought permission to attend his trial while still in the Dominican Republic because there is no legal way for him to re-enter the United States while the charges — related to an automobile crash nearly two decades ago and another incident — are pending on his record.

While the situation leaves Baez unable to return to the U.S., prosecutors had argued that Zoom attendance at trial wasn't the answer. 

Prosecutors with the Essex County District Attorney's Office told the court at oral arguments in March that Baez should seek to have the charges dismissed on due process grounds or a claim that his right to a speedy trial was violated.

The justices, however, steered clear of carving out a legal rule for Baez's situation, which defense and immigration groups said is all too common for many in federal immigration custody who aren't permitted to attend state court hearings to answer criminal charges.

Instead, the court found that the trial court judge and a single Supreme Judicial Court justice who heard an initial appeal didn't abuse their discretion in finding that Baez's creative solution wasn't going to jibe with a standing order that instructed judges on when remote hearings should be allowed.

"Although the standing order authorizes the judge to allow parties to appear virtually for certain pretrial hearings in criminal cases if 'doing so would be consistent with constitutional rights and statutory requirements,' it makes no such provision for criminal jury trials," the court said. "Indeed, under the standing order, a criminal bench trial cannot proceed virtually without the consent of all parties and the judge."

The rulings stand, the court said, "regardless whether, as Baez contends, such a virtual appearance by the defendant at a jury trial would be 'consistent with constitutional rights and statutory requirements.'"

The justices said they purposely didn't address whether Baez could waive his right to appear at all for the jury trial because it looks like he didn't argue that to the lower court.

Baez's attorney, Joseph B. Simons, told Law360 that he was surprised and disappointed with the court's decision not to take up the merits of the appeal and is planning next steps in the case.

"I understand they technically may be correct about not reaching arguments that aren't made in the lower court, but at the same time, to take it up to the point of a full argument before the Supreme Judicial Court and to not reach the merits seems unjust," Simons said Friday. 

Representatives for the Essex County district attorney were not immediately available for comment Friday.

The government is represented by Catherine Langevin Semel of the Essex County District Attorney's Office.

Baez is represented by Joseph B. Simons of Simons Law Office.

The case is Commonwealth v. Baez, case number SJC-13467, in the Massachusetts Supreme Judicial Court.

--Editing by Janice Carter Brown.

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