The Supreme Judicial Court today ordered a new trial for a woman whose child a judge took away after a Zoom-based trial that started with the woman getting cut off and being unable to log in via video to make her pro-se case or even to hear some witnesses.
The case centers on a child who had been put in state custody when she was just four, in 2014, before being placed with a "preadoptive family" in 2018, with whom she remains today. On Sept. 9, 2020, after the state court system had been shut for in-person hearings and trials because of the pandemic, an Essex Juvenile Court judge began a trial on whether to permanently remove the mother's parental rights. According to the SJC summary:
When the trial commenced, the judge, the clerk, the department's attorney, the child's attorney, and the mother's stand-by counsel were each connected to the virtual hearing room by video. The mother, who was self-represented, was not connected, and it quickly became apparent that she had not been provided with instructions on how to join the proceedings. Stand-by counsel informed the judge that she had been in communication with the mother and understood that the mother wanted to participate, but did "not have video capacity." Noting that there was a telephone number that could be used to connect to the Zoom proceedings by telephone, the judge recessed the proceedings for thirty minutes, while stand-by counsel provided the telephone number to the mother.
When the trial resumed, the mother was connected by telephone, permitting her to hear but not to see the proceedings. She informed the judge that she was currently living outside Massachusetts in a home she had rented for the summer due to the pandemic; and she moved to conduct the trial in person. No inquiry was conducted regarding her access to technology that might allow her to participate in the Zoom hearing via video, so as to be on equal footing with the other participants. Instead, the judge denied the mother's motion, stating "we're not doing in-person hearings at this point," and asked the department to call its first witness.
The first witness, who appeared by video, was a department social worker who had been assigned to the case. Shortly after the direct examination began, the technological problems that were to plague the first day of the virtual trial ensued. Specifically, the clerk realized that the mother had been disconnected from the virtual hearing room, but had attempted to rejoin and was in the Zoom "waiting room." With the judge's permission, the clerk readmitted her to the virtual hearing room, and the trial resumed. The record of the first day of the trial does not reflect how much of the first witness's testimony the mother missed before the clerk noticed her absence.
The court continued:
The mother was not the only one to experience technological problems on the first day. The second witness was disconnected at one point and had to be reconnected. Technological issues persisted, and the witness was advised to yell, so as to be heard. Technological issues also affected the department's final witness; indeed, the clerk then had to "knock [the third witness] out" of the Zoom hearing when her connection froze. When she tried to reconnect by video, she could not. Instead, she had to complete her testimony by telephone.
The trial continued and the judge offered the mother the chance to cross-examine witnesses from the first day, and ruled against her.
There is nothing wrong with Zoom trials, the state's highest court says. But the way this woman's trial was conducted - there was no attempt to get her onto a video hookup or provide her a "breakout room" to talk to her stand-by lawyer - means her rights were violated and she deserves a new trial, the justices concluded.
It is clear that on the second day of trial immediately after the mother informed the judge of the significant difficulties she had experienced with her cellular telephone service during the first day, he offered her the chance to cross-examine the witnesses from the first day. The mother, however, had only heard a portion of the testimony of one of those witnesses, if that. Thus, it was unreasonable to expect her to be in a position to conduct meaningful cross- examination. Again, other alternatives likely existed and, at the very least, should have been explored. For example, the trial could have been suspended for a short time to allow the mother to review the testimony of the three witnesses, and then reconvened to allow her to conduct cross-examination. Under the circumstances, the trial in this case was conducted in violation of the mother's right to due process.