A Randolph man who is charged as a pimp says he doesn't want to go to a hearing in his case because of the risk of Covid-19, but also says he doesn't want his hearing to be conducted on Zoom because it would violate his constitutional rights.
In a ruling today, the Supreme Judicial Court told Jahi Malary enough already: Pick one.
Malary and another man were arrested in Lowell in 2018 on charges of trafficking a person for sexual servitude and deriving support from prostitution, allegedly for trafficking underage girls in a hotel there. He's been out on bail since.
At issue in today's ruling is a hearing his lawyer asked for to try to convince a judge to suppress certain evidence against him. Two days' worth of the hearing were held in November, 2019 and February, 2020 and then the hearing was continued at the request of prosecutors - to March 18, 2020. That was in the early days of the pandemic and courts were still figuring out how to handle that and so the judge rescheduled the continuation of the hearing to July 29.
On July 23, a judge asked Malary to decide whether he wanted the continued hearing held in person or via a Zoom call.
The following day, Malary filed an "objection to conducting an evidentiary hearing by video conference or an in-person evidentiary hearing," in which he argued against both options. An in-person hearing could not safely be held because, in his view, the Trial Court's existing protocols to safeguard against COVID-19 were inadequate. A video conference, on the other hand, was also unacceptable because, again in his view, it would violate various of his constitutional rights. The judge continued the July 29 hearing date and rescheduled it for September 15. At a video status conference on September 8, Malary continued to object to proceeding with the third day of the suppression hearing either in person or via video conference and requested a continuance until such time as the risks of appearing in person were, in his view, reduced.
The judge again told him to make a choice, and offered to let him choose a different courthouse. He replied, no, he needs to be provided detailed descriptions of how the different courthouses are dealing with Covid-19 safety issues and this time the judge said enough, that information is publicly available, quit stalling and choose. But instead of choosing, he then filed an appeal, arguing potential threat of Covid-19 in a courthouse and deprivation of his rights to confront witnesses to be heard in a courtroom and to receive "effective" counsel on the other.
A single SJC justice said Malary had to pick a venue, there has been no violation of his rights at this point, and the justice system requires that his rights actually be violated before he can appeal that violation. The entire court ruled today he has no case, at least not yet, and ordered him to chose a venue already.
Malary has not in fact made any choice. His arguments about what rights might be violated if he chooses one forum or the other are, at this stage, conjectural. The simple act of the judge ordering Malary to choose a forum for the suppression hearing was not a violation of Malary's rights.The order did not, for example,bear on any substantive issue or right at stake in the proceedings or prevent the case from proceeding in a particular way. ...
Malary is not being forced to appear in person or being forced to appear via video conference; he is simply being directed to make a choice.The only issue before the single justice was whether that directive to Malary, to make a choice, was sufficiently important and extraordinary as to warrant the exercise of this court's extraordinary power [to overturn a lower-court decision]. On that point, the single justice permissibly decided that it was not. He did not err or abuse his discretion in doing so. If and when Malary is ordered to appear either in person or by video, he can assert whatever substantive challenges he has at that time.