SALEM — A lawyer for the state's public defender agency urged the state's highest court on Tuesday to order the Essex County sheriff to expand options for videoconferencing between attorneys and their clients, charging that the available options fail to adequately protect the privacy of defendants and safety of lawyers, and interfere with their ability to prepare for trial.
Even as the state continues shedding pandemic-related restrictions, there are still ongoing issues within the state's 13 county jails, the lawyers for the Committee for Public Counsel Services, the American Civil Liberties Union of Massachusetts and the Massachusetts Association of Criminal Defense Attorneys told the court.
In a lawsuit first filed last December, the group of defense attorneys argue that the sheriffs are displaying "deliberate indifference" to the well-being of people in custody by failing to conduct ongoing facility-wide testing and by failing to release what they consider to be adequate numbers of prisoners.
And in two counties, Essex and Bristol, the lawyers are also taking issue with available options for attorney-client visitation, calling what's available a violation of their clients' right to counsel and a safety issue for their attorneys.
CPCS attorney Rebecca Jacobstein argued that all jails should be providing options for remote visits with clients that mirror as closely as possible in-person, contact visits, with the ability to share documents and bring in third parties such as interpreters or experts.
She said the majority of county jails are allowing attorneys to set up Zoom calls or use a system called JurisLink, which allow for things like screen sharing and third parties to join a conference. In Essex, the jail offers conferencing through a program that provides tablets to people in custody, Jacobstein said. She said the system in Essex does not allow for screen sharing or for a third party to join the conference.
Lawyers are also allowed to visit in-person with their clients in Essex County.
A spokeswoman for the jail on Tuesday disputed some of the assertions, saying private videoconferencing and attorney-client meetings are available, as are unmonitored phone and video calls.
"These three options are widely available to attorneys and inmates alike and are not subject to monitoring or recording," spokeswoman Gretchen Grosky said. "Inmates have access to tablets to make and receive private calls with attorneys. In-person and video visits are conducted in private rooms to ensure confidentiality."
An attorney for the jail, Dan Bair, argued in court that there have been 1,600 attorney visits to the Essex County jail since May 2020, and more than 14,000 attorney calls in that same time frame.
Justice Scott Kafker noted that attorneys can all get the vaccine and could then visit clients in person. "You have the option of meeting in person," Kafker suggested. "Are we still going to find the right to meet with counsel is being infringed?"
Jacobstein said that while most of the attorneys are vaccinated, there is "still a disparity" in Massachusetts, including among those from the communities most likely to have people incarcerated. And, she said, there has been a high refusal rate among correctional officers.
And some attorneys, even with a vaccination, are hesitant to go to the jail for in-person visits, mentioning an affidavit filed by one lawyer who says an underlying health condition puts him at a higher risk from COVID. "It's low risk, but not no risk," Jacobstein said.
But several of the justices suggested that the one attorney (who practices in the northern part of the county) could ask for special accommodations due to his situation, rather than the court imposing a "global' order on the jail to change its practices.
Justice Serge Georges pointed out that Bristol County — where the lawyers say meeting rooms are cramped, unventilated and lack privacy — has another issue, a lack of infrastructure to offer videoconferencing. He questioned how far the court could go in ordering a jail to offer something they lack the capacity to do.
Jacobstein said that one of the issues she's been told of by lawyers is a lack of confidentiality. Lawyers who opt for an in-person but non-contact visit often have to speak loudly to be heard over other attorneys meeting with their clients and cannot pass documents back and forth without a correctional officer handling the paperwork.
"May I ask you about your mantra, 'low risk is not no risk?'" asked Justice Dalila Wendlandt. "How low does the risk have to be?"
Her question echoed one posed by Justice Elspeth Cypher, who noted that teachers, firefighters and police officers are also back at work and still faced with a risk of contracting the virus.
Jacobstein acknowledged that the risks are lower than they were earlier in the pandemic. "I can't say it has to be one percent or five percent," later adding that the agency is seeking the conferencing only as an interim measure.
Earlier in the hearing, Justice Frank Gaziano suggested that the request was something that might not actually rise to a question of constitutional rights but a matter that the court could address through its oversight powers.
After a lengthy pause, Jacobstein answered, "I'm going to say yes."
Prior to the argument over conferencing, Massachusetts ACLU attorney Jesse Rossman argued that Centers for Disease Control guidelines recommend ongoing testing of even asymptomatic individuals in congregate settings.
But without the Department of Public Health mandating that such testing be done and conflicting guidance from the jails' own experts, some of the justices said they found it hard to see where there has been any showing of "deliberate indifference."
Courts reporter Julie Manganis can be reached at 978-338-2521, by email at email@example.com or on Twitter at @SNJulieManganis.