Commonwealth v. Chism

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SJC-11939
COMMONWEALTH vs. PHILIP CHISM & others.1
Suffolk. September 7, 2016. - January 4, 2017.
Present: Gants, C.J., Botsford, Hines, Gaziano, & Budd, JJ.
Impoundment. Fair Trial. Evidence, Videotape. Public Records.
Constitutional Law, Impoundment order, Fair trial.
Practice, Criminal, Impoundment order, Motion to suppress,
Record, Fair trial. Uniform Rules on Impoundment
Procedure.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 6, 2015.
The case was heard by Duffly, J.
Jonathan M. Albano (Emma D. Hall with him) for Boston Globe
Media Partners, LLC.
Patrick Levin, Committee for Public Counsel Services, for
the defendant.
Zachary C. Kleinsasser, for Eagle Tribune Publishing
Company, Inc., was present but did not argue.
GANTS, C.J. The issue on appeal is whether a Superior
Court judge committed an error of law or abused his discretion
1
Boston Globe Media Partners, LLC, and Eagle Tribune
Publishing Company, Inc., interveners.
2
in denying a defendant's motion to impound a video recording and
transcript of a police interview with the defendant that was the
subject of a motion to suppress and that was subsequently
suppressed. We conclude that the judge applied the correct
legal standard in deciding that motion. We also conclude that,
where the judge considered both the presumption of public access
to judicial records and the defendant's right to a trial decided
by a fair and impartial jury, and where he subsequently forbade
the duplication of the video recording and transcript, the judge
did not abuse his discretion in denying the motion.
Background. In the early evening of October 22, 2013, the
defendant's mother informed the Danvers police department that
the defendant, who was fourteen years old at the time, was
missing. Shortly after midnight on October 23, a Danvers police
officer located the defendant walking on a road in Topsfield and
transported him to the Topsfield police station, where the
backpack he had been carrying was inventoried and he was briefly
questioned by the police. The defendant was then transported to
the Danvers police station, where, in the presence of his
mother, he was interviewed at approximately 2:30 A.M. by a State
trooper and a Danvers police sergeant. The entire interview was
video recorded. During this interview, the defendant admitted
that he had killed Colleen Ritzer (victim), a teacher at Danvers
3
High School, and described the killing and the removal of her
body from the school bathroom where she was killed.
A grand jury returned indictments in November, 2013,
charging the defendant, among other crimes, with murder in the
first degree. In December, 2014, the defendant filed a motion
to suppress the statements he made at the Topsfield and Danvers
police stations, claiming, among other grounds, that the
defendant did not knowingly and intelligently waive the Miranda
rights and that the statements were not made voluntarily. On
January 5, 2015, the defendant filed a motion to impound "the
contents of the videotaped interrogation of the juvenile and the
transcript of that interview, should either or both be entered
into evidence as exhibits in the course of the hearing on the
motion to suppress." The third-party interveners, Boston Globe
Media Partners, LLC (publisher of the Boston Globe), and Eagle
Tribune Publishing Company (publisher of the Salem News and the
Eagle Tribune), opposed the motion to impound.
After two of the four days of hearings on the motion to
suppress, the judge heard argument on the motion to impound on
January 20 and 21, 2015. At this time, the videotape recording
of the defendant's interview at the Danvers police station had
been admitted in evidence at the suppression hearing and the
transcript of that interview had been marked for identification,
but the recording had not been played in open court and neither
4
the recording nor the transcript had been made publicly
available. The judge orally denied the motion to impound from
the bench, and issued a written memorandum of decision and order
on January 23, 2015.
The judge recognized that the exhibits the defendant moved
to impound, having been entered in evidence at the suppression
hearing, are judicial records. Quoting Commonwealth v. George
W. Prescott Publ. Co., 463 Mass. 258, 262 (2012), and The
Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004), he
noted that judicial records "are presumptively available to the
public" under the "common-law right of access to judicial
records." The judge declared that the public's right to
understand his decision on the defendant's motion to suppress
statements, a decision he had not yet made, "is of
constitutional dimension." Because the voluntariness of the
statements was at issue and the defendant's statements "are
probative concerning the issue of voluntariness," the judge
found that his decision "will inevitably involve an in-depth
discussion of the statements the defendant seeks to suppress."2
The judge declared:
2
In his findings of fact and rulings of law on the
defendant's motion to suppress, issued in March, 2015, the judge
stated that he had "assiduously reviewed the video [recording]
of the defendant's statement on numerous occasions." The judge
allowed the motion in part and denied it in part. He allowed
5
"[I]f the motion to impound were allowed, the court would
be left with two unsatisfactory options: the court could
hear argument on the important issue of whether the
Commonwealth has met its burden of proving voluntariness
beyond a reasonable doubt at side-bar and impound the
record of that portion of the argument; alternatively, the
court would be forced to speak in such cryptic terms that
it would impair a robust discussion and leave the public
distrustful of the process."
The judge also predicted that, regardless of his ruling on the
motion to suppress (and, implicitly, his ruling on the motion to
impound), the substance of the defendant's recorded statements
during the videotaped interview would likely become public prior
to empanelment.3
The judge recognized that release of the video recording
and transcript "necessarily involves divulging inflammatory
content" and would make the selection of a fair and impartial
jury "more challenging." However, the judge found that,
that part of the motion that sought to suppress the defendant's
statements at the Danvers police station.
3
In fact, some of the admissions made by the defendant
during the recorded interview at the Danvers police station were
already public at the time of the judge's ruling. In January,
2014, a State trooper executed an affidavit in support of a
warrant to search a cellular telephone that purportedly belonged
to the defendant. In that affidavit, the trooper stated that,
during the interview, the defendant admitted to the murder of
the victim, claimed that he struck her once and cut her twice,
denied sexually assaulting her, said that he destroyed his
cellular telephone and hers to prevent the police from using the
telephones to track his location, and declared that he threw
both telephones into a wooded area, whose location he
identified. There is nothing in the record to suggest that this
affidavit was impounded. A staff writer with the Salem News
indicated in an article dated April 8, 2014, that she had read
the affidavit.
6
"[g]iven the size of the community, there is no concern that
pretrial publicity, even if pervasive, would inevitably lead to
a tainted jury or an unfair trial." He added that he was
"confident" that an indifferent jury could be selected, and that
he was "equipped to ensure [that] the defendant's . . . right to
a fair trial [under the Sixth Amendment to the United States
Constitution] is preserved and [to] minimize any prejudicial
impact on the defendant."
The judge granted the defendant's motion to stay the order
and barred release of the videotape and transcript to allow time
for the defendant to appeal. On January 26, 2015, the defendant
applied for interlocutory relief from a single justice of the
Appeals Court pursuant to Rule 12 of the Uniform Rules of
Impoundment Procedure, seeking review of the judge's denial of
the motion to impound, claiming that the judge "abused his
discretion and committed an error of law in concluding that
'good cause' does not exist for the requested impoundment."
See The Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 601-603
(2000) (Sharpe) (setting forth procedure for appealing under
Uniform Rules of Impoundment Procedure to Appeals Court and
Supreme Judicial Court). On February 5, the single justice
denied the defendant's request for interlocutory relief,
concluding that the judge did not abuse his discretion and
"carefully balanced the defendant's interest in a fair trial and
7
the public's common-law and Constitutional right to access court
proceedings." The single justice also extended the duration of
the stay to February 6.
On that date, the defendant filed a petition for relief
under G. L. c. 211, § 3, asking a single justice of the Supreme
Judicial Court for Suffolk County to reverse the order of the
single justice of the Appeals Court, again claiming that the
judge abused his discretion and committed an error of law in
concluding that there was not "good cause" for the requested
impoundment. In July, 2015, the single justice allowed the
petition for relief, concluding that neither the single justice
of the Appeals Court nor the motion judge "appear[ed] to have
considered the appropriate factors in balancing the
[defendant's] right to a fair trial before an impartial jury
under the Sixth Amendment . . . and the [interveners'] rights of
access, either under the First Amendment to the United States
Constitution or at common law." The single justice therefore
vacated the denial of the motion to impound and remanded the
matter to the Superior Court for reconsideration in light of
"the appropriate factors." See Sharpe, 432 Mass. at 602 (focus
of single justice's review of petition filed pursuant to
impoundment rules "should be on whether the single justice of
the Appeals Court erred, [but] the resolution of the inquiry
8
might require [looking] indirectly at the underlying order of
the judge").
The single justice of the county court essentially
concluded that the single justice of the Appeals Court and the
motion judge committed two legal errors. First, she concluded
they erred by applying the First Amendment strict scrutiny
standard applicable to the closing of a court room to the public
rather than the good cause standard applicable to the
impoundment of court records. Second, she concluded that they
erred by failing to consider "whether the documents sought to be
impounded were indeed public records, subject to a presumptive
common[-]law right of access." She declared that "[b]ecause the
documents have been suppressed, there is scant, if any, basis to
conclude that there is any public right of access to them." The
single justice quoted the assertion in United States v. McVeigh,
119 F.3d 806, 813 (10th Cir. 1997), cert. denied sub nom. Dallas
Morning News v. United States, 522 U.S. 1142 (1998), that "the
right of access to suppression hearings and accompanying motions
does not extend to the evidence actually ruled inadmissible in
such a hearing." She also concluded that, apart from these
legal errors, the single justice and the motion judge abused
their discretion by not properly weighing the qualified public
right of access to the video recording and transcript "against
the 'paramount' right of the [defendant] to a fair trial before
9
an impartial jury." Regarding the risk of prejudicial pretrial
publicity, she declared that release of a transcript of the
almost two-hour confession, "even without release of the even
more inflammatory [video recording]," posed "a high risk" of
creating "deep and bitter prejudice throughout the community."
The single justice also stated that, because of the risk of
publication and comment on the Internet and social media,
release of the defendant's statement would result in "global"
exposure to "such a spectacle."
The single justice directed that, on remand, a judge of the
Superior Court should consider whether the defendant's right to
a fair trial "could be achieved if the statements were released,
or whether the extent of potential prejudice to the jury pool
would preclude the [defendant] from obtaining a fair trial."
The interveners appealed from the single justice's decision to
the full court. As a consequence of the appeal, the matter was
not remanded and, during the pendency of this appeal, the
defendant was convicted by a Superior Court jury of murder in
the first degree and other charges.
Discussion. Before commencing our review of the decision
of the single justice of the county court, it is important to
recognize with some precision the issue before us, given the
context of this appeal. On January 26, 2015, the same date that
the defendant sought interlocutory review of the judge's denial
10
of the motion to impound by the single justice of the Appeals
Court, the defendant moved in the Superior Court for an order
prohibiting the duplication of the video recording and
transcript of the Danvers police station interview. The judge
allowed the motion without hearing, noting that, if the order
denying impoundment were no longer stayed, he would promptly
schedule a hearing on the issue of duplication. Because that
order was stayed and later vacated, no such hearing has been
held on the issue of duplication, and the judge's order
forbidding duplication remains in effect. The interveners have
not appealed from that order. Therefore, the issue before us is
solely whether the public may come to the Superior Court clerk's
office in Essex County to see and hear the videotaped recording
and read the transcript, not whether the public may make a copy
of the recording or the transcript so that they may be viewed
outside the clerk's office.
Moreover, because this is an appeal from the decision of
the single justice of the county court under G. L. c. 211, § 3,
we must decide whether the single justice committed an error of
law or abused her discretion in concluding that the single
justice of the Appeals Court committed an error of law and
abused his discretion in affirming the judge's denial of the
motion to impound. See Sharpe, 432 Mass. at 602; Department of
Mental Retardation v. Kendrew, 418 Mass. 50, 53 (1994). We
11
begin with the determination by the single justice of the county
court that the single justice of the Appeals Court and the
motion judge erred regarding the legal standard to apply to a
motion to impound under these circumstances. We consider later
the determination that they committed an abuse of discretion in
weighing the appropriate factors.
1. Legal standard. Under the First Amendment, the public
has the right to attend a pretrial hearing regarding a motion to
suppress unless the party seeking closure of the hearing to the
public satisfies the four-part strict scrutiny test articulated
in Waller v. Georgia, 467 U.S. 39, 48 (1984): "[1] the party
seeking to close the hearing must advance an overriding interest
that is likely to be prejudiced, [2] the closure must be no
broader than necessary to protect that interest, [3] the trial
court must consider reasonable alternatives to closing the
proceeding, and [4] it must make findings adequate to support
the closure." See Commonwealth v. Jones, 472 Mass. 707, 723
(2015) (rape shield hearing may not be closed to public unless
Waller test is met). Here, no party sought closure of the
motion to suppress hearing. Therefore, once the videotaped
recording of the defendant's interview at the Danvers police
station was admitted in evidence, if any party had sought to
play the recording in open court so that it could be seen and
heard by the judge or a witness, all those present in the court
12
room would have seen and heard the interview. But no party
sought to play the recording in open court; the judge instead
carefully reviewed outside the court room the recording and the
accompanying transcript in reaching his decision regarding the
motion to suppress.
A recording admitted in evidence as an exhibit at a motion
to suppress hearing, and a transcript of that recording marked
for identification, are judicial records. See New England
Internet Café, LLC v. Clerk of the Superior Court for Criminal
Business in Suffolk County, 462 Mass. 76, 82-83 (2012) (judicial
records include "transcripts [and] evidence"). We have long
recognized a common-law presumption of public access to judicial
records. See Commonwealth v. Pon, 469 Mass. 296, 311 (2014);
Commonwealth v. Winfield, 464 Mass. 672, 678 (2013). See also
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)
("courts of this country recognize a general right to inspect
and copy public records and documents, including judicial
records and documents"). The presumption of public access
encourages openness, transparency, and an informed public while
discouraging misconduct, bias, and dishonesty, all of which
enhances public confidence in the judicial system. Winfield,
supra, quoting Sharpe, 432 Mass. at 606 ("This presumption of
public access to judicial records allows the public and the
media to develop a full understanding of a judicial proceeding
13
so that they may 'keep a watchful eye' on the judicial system");
The Republican Co., 442 Mass. at 222.
But a defendant also is entitled to a fair trial, and a
judge must protect against the risk that pretrial publicity will
be so pervasive and prejudicial that it poses an unacceptable
risk of preventing the selection of a fair and impartial jury or
of influencing the verdict, especially where the pretrial
publicity would reveal information that will not be admitted in
evidence at trial. See Sharpe, 432 Mass. at 608-609; Newspapers
of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the
Dist. Court Dep't, 403 Mass. 628, 632 (1988), cert. denied, 490
U.S. 1066 (1989). See also Commonwealth v. Toolan, 460 Mass.
452, 462–463 (2011). "When the rights of the accused and those
of the public come irreconcilably into conflict, the accused's
Sixth Amendment right to a fair trial must . . . take precedence
over the public's First Amendment right of access to pretrial
proceedings." Sharpe, 432 Mass. at 609 n.28, quoting In re
Globe Newspaper Co., 729 F.2d 47, 53 (1st Cir. 1984). However,
we also recognize that "pretrial publicity -- even pervasive,
adverse publicity -- does not inevitably lead to an unfair
trial." See Toolan, 460 Mass. at 463, quoting Skilling v.
United States, 561 U.S. 358, 384 (2010).
We balance the competing interests of public access and the
right to a fair trial by making the common-law presumption of
14
public access rebuttable for "good cause shown." See Winfield,
464 Mass. at 678, quoting Globe Newspaper Co., petitioner, 461
Mass. 113, 120 (2011). The Uniform Rules on Impoundment
Procedure apply to all "public case records that are filed in
civil and criminal proceedings in each Department of the Trial
Court." Rule 1(a). Under Rule 7(b), "[i]n determining good
cause, the court shall consider all relevant factors, including,
but not limited to, (i) the nature of the parties and the
controversy, (ii) the type of information and the privacy
interests involved, (iii) the extent of community interest, (iv)
constitutional rights, and (v) the reason(s) for the request."
See Sharpe, 432 Mass. at 608 ("In balancing the public's right
to inspect documents against a defendant's rights guaranteed by
the Sixth Amendment to a fair trial, a court may consider . . .
whether the information has already been disclosed, the nature
of the documents under impoundment, or whether there are
alternatives to withholding public access, such as a change of
venue").4
The judge here correctly recognized that the video
recording of the defendant's interview at the Danvers police
station and the transcript of that interview became judicial
4
An order of impoundment "may be entered only upon a
written finding of good cause," and "shall specify the duration
of the order." Rule 8 of the Uniform Rules on Impoundment
Procedure.
15
records once the recording was admitted in evidence at the
suppression hearing and the transcript was marked for
identification. The judge also correctly recognized that, in
evaluating whether good cause for impoundment had been shown, it
was appropriate to consider that the public was entitled to
evaluate his decision regarding the motion to suppress and the
police conduct at issue in the motion, and that the content of
the defendant's interrogation would be important to any such
evaluation. The judge also correctly recognized that one of the
grounds raised by the defendant in the motion to suppress was
that the statements at the Danvers police station were made
involuntarily, and that the videotape recording of the interview
would be probative on this issue because it would reveal not
only what the defendant said but also the conduct and demeanor
of the defendant and his interrogators.
We do not agree with the single justice of the county
court's conclusion that the judge incorrectly applied the
constitutional test appropriate to the closure of a court room
to the motion to impound the video recording.5 We recognize that
5
Nor do we agree with the single justice of the county
court that the Superior Court judge concluded that there was a
First Amendment right of access to an impoundment hearing. The
judge did not need to reach this issue because there was no
motion to close that hearing to the public and that
constitutional issue was not relevant to whether there was good
cause to impound the exhibits at issue.
16
the judge stated that he denied the defendant's motion to
impound "[a]fter balancing the defendant's Sixth Amendment right
to a fair trial with the public's First Amendment right to view
the criminal proceedings," which, if considered in isolation,
would suggest that he applied a strict scrutiny test to the
defendant's motion. But, after examining the totality of his
decision, we are persuaded that he applied the good cause test,
not the strict scrutiny test. In making both his oral and
written ruling on the motion to impound, the judge began by
quoting the good cause standard in Rule 7(b) of the Uniform
Rules on Impoundment Procedure. We also note that, in the
appeals to both single justices, the defendant appeared to
acknowledge that the judge had applied the good cause standard,
because he contended that the judge had abused his discretion in
applying the good cause standard.6
6
Because all parties acknowledge that good cause is the
appropriate standard to apply to a motion to impound judicial
records, we need not here decide whether the presumption of
public access to the judicial records at issue is a
constitutional, as well as a common-law, right. Compare Matter
of N.Y. Times Co., 828 F.2d 110, 114 (2d Cir. 1987), cert.
denied, 485 U.S. 977 (1988) (qualified First Amendment right of
access extends to written documents submitted in connection with
judicial proceedings for which there is right of access), with
United States v. Corbitt, 879 F.2d 224, 237 (7th Cir. 1989)
(document is subject to right of access under First Amendment
only where judge considers whether "the document has
historically been available to the public, and whether public
access would promote the proper functioning of the government
17
Nor do we agree with the suggestion of the single justice
of the county court, citing McVeigh, 119 F.3d at 813, that the
video recording and transcript were not judicial records and
therefore not presumptively public because they would be
inadmissible in evidence at trial if the motion to suppress were
granted, as it later was with respect to the defendant's
interview at the Danvers police station. We agree that evidence
does not become a judicial record simply because a defendant
seeks to suppress that evidence. See United States v. Gurney,
558 F.2d 1202, 1210 (5th Cir. 1977), cert. denied sub nom. Miami
agency producing or considering the document"). It suffices
that we recognize that, even if access to judicial records were
within the rubric of the constitutional right to a public trial,
that would not necessarily mean that the appropriate standard to
apply to a motion to impound was the four-part strict scrutiny
test articulated in Waller v. Georgia, 467 U.S. 39, 48 (1984),
that must be applied when a party seeks closure of the courtroom
to the public. See Commonwealth v. Pon, 469 Mass. 296, 311
(2014) ("We conclude that the records of closed criminal cases
resulting in these particular dispositions are not subject to a
First Amendment presumption of access, and therefore that the
sealing of a record under G. L. c. 276, § 100C, need not survive
strict scrutiny"). Our constitutional jurisprudence recognizes
that context matters in the standard to be applied to safeguard
a constitutional right. The Fourth Amendment to the United
States Constitution protects "[t]he right of the people to be
secure in their persons . . . against unreasonable searches and
seizures," but we apply a probable cause standard to the search
of a person and a reasonable articulable suspicion standard to
the temporary seizure of a person during a police stop. See
Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011); Commonwealth
v. Bostock, 450 Mass. 616, 619 (2008).
18
Herald Publ. Co. v. Krentzman, 435 U.S. 968 (1978) ("The press
has no right of access to exhibits produced under subpoena and
not yet admitted into evidence, hence not yet in the public
domain"). Therefore, where a defendant seeks to suppress a
diary found during the search of his home based on the absence
of probable cause, the diary does not become a judicial record
simply because its suppression is the subject of the motion.
But where a defendant's statements are the subject of the
suppression motion and a recording of those statements is
admitted in evidence at the suppression hearing because it is
relevant to the issue whether the motion should be allowed, the
fact that the recording might be suppressed and therefore be
inadmissible at trial does not change the fact that it was
admitted in evidence at the suppression hearing and thereby
became a judicial record. To be sure, the fact that the
recording might be inadmissible at trial is a relevant factor to
consider in deciding whether it should be impounded for good
cause shown, because of the risk that widespread publicity
regarding the inadmissible recording might taint the prospective
jury pool and put at risk the defendant's right to a trial
decided by a fair and impartial jury. But, where a recording is
admitted at trial in a pretrial suppression hearing, its
ultimate inadmissibility at trial does not remove it from the
category of a judicial record. Nor was it inappropriate for the
19
judge to rule on the motion to impound before the judge had
ruled on the motion to suppress because, once the video
recording was admitted in evidence at the suppression hearing,
it became a judicial record that was presumptively public unless
impounded.
Increasingly, perhaps spurred by the recognition of the
"many benefits that flow from recording of interrogations,"
Commonwealth v. DiGiambattista, 442 Mass. 423, 441 (2004), and
our directive that "a defendant whose interrogation has not been
reliably preserved by means of a complete electronic recording
should be entitled, on request, to a cautionary instruction
concerning the use of such evidence," id. at 447, an increasing
number of police departments in the Commonwealth are video
recording police interrogations of suspects. See National
Association of Criminal Defense Lawyers, Custodial Interrogation
Recording Compendium By State: Massachusetts (January 13,
2016), https://www.nacdl.org/usmap/crim/30262/48121/d#
[https://perma.cc/Y8GR-B85H]. As a result, we have seen an
increasing number of cases where the evidentiary hearing on the
motion to suppress a defendant's statements consists of nothing
more than the Commonwealth offering in evidence the waiver of
rights forms, the video recording of the interrogation, and a
transcript of the interrogation, which the judge then reviews in
deciding whether the defendant knowingly and voluntarily waived
20
his or her rights and whether the statements were made
involuntarily. See, e.g., Commonwealth v. Hoyt, 461 Mass. 143,
148 (2011) (at evidentiary hearing on motion to suppress, judge
"considered only documentary evidence: the Miranda waiver form,
the interrogation video recording, and the transcript of the
interrogation"). If the video recording were not a judicial
record, the public would have no way in these cases apart from
the judge's memorandum of decision to evaluate the judge's
decision to suppress.
2. Abuse of discretion. Having concluded that the judge
did not commit legal error in considering the defendant's motion
to impound under the good cause standard applicable to
presumptively public judicial records, we now turn to the
defendant's claim that the judge abused his discretion in
applying that standard. "[A] judge's discretionary decision
constitutes an abuse of discretion where we conclude the judge
made 'a clear error of judgment in weighing' the factors
relevant to the decision, . . . such that the decision falls
outside the range of reasonable alternatives." L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto
v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
The judge was cognizant of the risk that he might suppress
the statements made during the video recorded interview at issue
in the motion to impound, that release of the video recording
21
and the transcript "necessarily involves divulging inflammatory
content," and that such disclosure "will mean that the selection
of a fair and impartial jury will be more challenging." But he
also recognized that the substance of the interview, at least in
part, would be disclosed during the attorneys' oral argument
regarding the motion to suppress and in his decision regarding
that motion because the voluntariness of the statements was at
issue and the defendant's statements "are probative concerning
the issue of voluntariness." Therefore, even if the video
recording and transcript were impounded, the public was likely
to learn many of the details of the defendant's statements in
the impounded recording, including his admission to having
killed the victim. See Sharpe, 432 Mass. at 608 (in balancing
public's right to inspect judicial records and defendant's right
to fair trial, judge may consider "whether the information has
already been disclosed").7
The judge also recognized that careful individual voir dire
of the venire and explicit jury instructions would be needed to
ensure the selection of a fair and impartial jury, and that, if
such a jury could not reasonably be selected in Essex County, he
7
As noted earlier, see note 3, supra, details regarding the
content of the defendant's statement to police during his
interview at the Danvers police station were also included in
the search warrant affidavit of a State trooper that had not
been impounded. The record does not reflect whether the judge
was aware of this judicial record.
22
had the discretion to order a change of venue. Knowing this,
the judge declared that, "[g]iven the size of the community,
there is no concern that pretrial publicity, even if pervasive,
would inevitably lead to a tainted jury pool or an unfair
trial." We recognize that "[p]ublicity concerning the
proceedings at a pretrial hearing . . . could influence public
opinion against a defendant and inform potential jurors of
inculpatory information wholly inadmissible at the actual
trial." Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14
(1986), quoting Gannett Co. v. DePasquale, 443 U.S. 368, 378
(1979). But we give substantial deference to the conclusion of
an experienced trial judge who is familiar with the case and the
pretrial publicity that has surrounded it regarding the
likelihood that revelation of a defendant's confession to the
police, even a confession that might be suppressed and therefore
inadmissible in evidence at trial, would so taint the jury
venire as to unfairly burden the defendant's right to a fair
trial. See Commonwealth v. McCowen, 458 Mass. 461, 476 (2010)
("we give careful attention to the evaluation of the trial
judge, especially one who, as here, presides in the county where
the crime occurred and is familiar with the nature and
pervasiveness of the pretrial publicity"); Commonwealth v.
Clemente, 452 Mass. 295, 325 (2008), cert. denied, 555 U.S. 1181(2009) ("we have granted trial judges 'wide discretion' in
23
dealing with publicity that might have a prejudicial effect on
jurors" [citation omitted]).
The question whether the judge abused his discretion in
denying the motion to impound would have been closer had the
judge not allowed the defendant's motion to prohibit duplication
of the video recording. We recognize that, when the judge
denied the motion to impound, he did not impose this
prohibition; the prohibition against copying was ordered sixteen
days after the oral denial of the motion to impound, in response
to the defendant's motion seeking such an order. As a result,
had the denial stood alone and not been stayed, a member of the
public or the media might have obtained access to the video
recording for both inspection and copying.8
8
Under the new Uniform Rules on Public Access to Court
Records, Trial Court Rule XIV (2016), "[a]ny member of the
public may submit to the Clerk at a courthouse a request to
access a court record." Rule 2(b). "Access" is defined as "the
ability to inspect and obtain a copy of a court record." Rule
1(e). A "court record" includes court papers, documents,
exhibits, and recordings that are "made, entered, filed, and/or
maintained by the Clerk in connection with a case or
proceeding." Id. A clerk, with leave of court, "may allow the
public to view and photograph non-documentary exhibits, except
where such access would pose a threat of deterioration,
contamination, or destruction of the exhibits." Rule 2(e).
Even though these Uniform Rules did not become effective until
November 1, 2016, we understand that they reflect current
practice regarding the inspection and copying of court records.
See Memorandum from the Trial Court Comm. on Pub. Access to
Court Records to Persons Interested in the Proposed Trial Court
Rule XIV Uniform Rules on Access to Court Records (March 30,
2016), http://www.mass.gov/courts/docs/sjc/invitations-to-
24
We also recognize that the danger of prejudicial pretrial
publicity is substantially greater where a defendant's pretrial
interrogation can be seen and heard on public and social media
in an already highly publicized case, especially where that
interrogation is suppressed and would not otherwise be seen and
heard by the jury, and where the defendant admits during that
interrogation to killing the victim. See Rideau v. Louisiana,
373 U.S. 723, 726 (1963) ("it was a denial of due process of law
to refuse the request for a change of venue, after the people of
Calcasieu Parish had been exposed repeatedly and in depth to the
spectacle of [the defendant] personally confessing in detail to
the crimes for which he was later to be charged"). Media
reports describing the interrogation or even quoting the
transcript of the interrogation pose a considerable but lesser
danger. See United States v. Mohamed, 546 F. Supp. 2d 1299,
1302 (M.D. Fla. 2008) (forbidding duplication of video recording
of traffic stop admitted in evidence at motion to suppress
because "release and broadcast of [video recordings] may have
more of an inflammatory impact on the viewing public than a mere
recounting of the testimony and evidence presented at the
suppression hearing"); In re NBC Universal, Inc., 426 F. Supp.
2d 49, 58 (E.D.N.Y. 2006) (forbidding duplication of video
comment/proposed-public-access-rules-comparison-document.pdf
[https://perma.cc/6TCF-S7JR].
25
recording admitted in evidence at motion to disqualify defense
counsel because "[t]elevision indubitably has a much greater
potential impact on jurors than print media").
However, by the time the denial of the motion to impound
reached the appellate courts, the judge had issued the order
prohibiting the duplication of the video recording and
transcript, and the appellate review for abuse of discretion
should properly have considered whether the denial of the motion
to impound was an abuse of discretion in light of the subsequent
order to prohibit duplication. We conclude here that the judge,
having subsequently ordered that the video recording could not
be duplicated, did not abuse his discretion in denying the
motion to impound.9
We note that what the judge ultimately did here was
comparable to what he had the authority to do if one of the
parties had chosen to play the video recording in open court at
the suppression hearing. In such a circumstance, a judge has
9
Because the public presumptively has access to a judicial
record, and because that access generally means that the
judicial record may be inspected and copied, an order
prohibiting the duplication of a judicial record is a variant of
an order of impoundment, which requires a showing of good cause,
albeit a good cause showing consistent with the lesser intrusion
on public access. The practical consequence of such an order is
that it requires a clerk's office to identify a third category
of judicial records -- a public record that is not impounded,
but may not be duplicated -- beyond the two categories with
which it is more familiar: (1) a public record that may be
inspected and copied, and (2) an impounded record that must be
kept separate and unavailable for public inspection.
26
the authority under Supreme Judicial Court Rule 1:19, as
appearing in 461 Mass. 1301 (2012), governing electronic access
to the courts, to order that the news media not electronically
record that part of the hearing "if it appears that such
coverage will create a substantial likelihood of harm to any
person or other serious harmful consequence." Where this
authority is invoked to prohibit the news media from recording a
video recording played in open court at a suppression hearing,
the news media may report on the substance of the statements
made in the recording but will be unable to disseminate the
recording itself.
Conclusion. The case is remanded to the single justice of
the county court, with instructions to vacate the prior order
that set aside the Superior Court judge's denial of the motion
to impound, and to issue an order affirming the denial by the
single justice of the Appeals Court of the defendant's request
for interlocutory appellate relief. In short, the motion
judge's denial of the motion to impound is affirmed.
So ordered.