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COVID-19 Causes Public Defenders to Change How They Handle Cases

With courthouses in Worcester County, Springfield, and Holyoke closing multiple times after staff there tested positive for the virus, Malone and McArdle have had to work from their dining room table in their apartment overlooking Forest Park. Instead of working from their offices, they consult by phone with clients, who are often stuck in jail waiting for a hearing to be released. And that call isn’t always private.

While the Public Defender Division has tried to convince the jails to allow Zoom meetings, even offering to give them the equipment for free, they’ve largely refused. “In fact for one sheriff’s office, we have a computer we’re ready to loan to them that’s set up with an operating system and a browser,” Randy Gioia, deputy chief counsel for the Public Defender Division of Massachusetts, said. “We haven’t had a taker yet, and that’s a concern for me. I think sheriffs should be accommodating.”

So, the public defenders make incessant phone calls and file endless motions to get their clients out of jail. In one case, one of Malone’s clients had to sit in jail an extra two weeks waiting for a hearing, and then another three days because the probation officers had not yet talked to each other. “How am I supposed to tell this person, ‘I’m really sorry, but you’ve got to sit for another three days’?”

A bigger problem, public defenders say, is their clients becoming invisible to the courts due to the impersonal nature of technology. “If we’re in court and this person has their mom, their dad, their sister, their girlfriend, other family members showing support, that’s really compelling to argue to a judge,” McArdle said. “Obviously, with this transition to how bails are happening, we don’t have that contact necessarily with the people who support our clients.”

Even with Zoom conferencing, they say it’s hard for a judge to evaluate who they’re dealing with in a two-dimensional video meeting. “It’s not a good substitute,” says Gioia. “It’s better than nothing and probably better than a telephone hearing at this point, but it should be temporary.”

“It’s just totally dehumanizing,” McArdle said. “All the judges have is this image of somebody that they don’t know, in a bright orange jumpsuit, with a mask and beanie on. It was just such an awful feeling to see this kind of playing out.” The public defenders used to handle all the clients at a jail with just a few lawyers, but it wasn’t working. “It was sort of this assembly line. You couldn’t even keep people straight,” McArdle said. They stopped that because they thought it wasn’t safe.

And, of course, people sitting in jail accused of a crime want answers. But there aren’t any. “The best we can do is say, ‘Hey, I’ll stay in touch with you,’” she said. “‘I know you were supposed to be in court tomorrow, but that’s not going to happen.’”

McArdle said public defenders also don’t have any say in the matter and can’t force a court to hold a hearing during the pandemic.

This has brought up prisoners’ rights. As the COVID-19 crisis continues, Gioia said there are lots of rights being violated: The right to be present in court, the right to confront and examine witnesses, the right to a jury trial and to present witnesses. “How do you present your witnesses to a court when that’s being done remotely?” he asked. These are fundamental rights.”

Those sitting in jail aren’t just worried about themselves. They also worry about the coronavirus and their families, some of whom may be in a demographic more at risk of life-threatening problems from the virus.

One of McArdle’s clients has a mother with heart failure, who was already in and out of the hospital before the pandemic hit. With face to face contact cut off, communication between the mother and son has suffered, she said. “Not being able to have regular updates and just being worried that she’s going to get COVID-19 and he’s not going to be able to see her or help take care of her has been really stressful.”

Defense attorneys’ work right now is more important than ever, Gioia said. “Public defenders’ work right [now] is nothing short of saving peoples’ lives.”