Commonwealth v. J.F.

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-13334
COMMONWEALTH vs. J.F.
Plymouth. February 8, 2023. - May 5, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Sealing. Criminal Records. Constitutional Law, Access to
criminal records. Practice, Criminal, Nolle prosequi,
Record.
Indictments found and returned in the Superior Court
Department on February 28, 2014.
A petition to seal the record, filed on August 27, 2021,
was heard by Brian A. Davis, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Patrick Levin, Committee for Public Counsel Services, for
the defendant.
Arne Hantson, Assistant District Attorney, for the
Commonwealth.
The following submitted briefs for amici curiae:
Alyssa Golden, Ann Maurer, Elizabeth Connor, & Leigh
Woodruff for Community Legal Aid.
Mason A. Kortz, Tamara S. Wolfson, & Paul M. Kominers for
Upturn, Inc.
Pauline Quirion for Greater Boston Legal Services &
another.
2
Chinh H. Pham for Boston Bar Association.
CYPHER, J. On March 10, 2014, the defendant, J.F., was
arraigned on two counts of rape while armed with a firearm,
G. L. c. 265, § 22; one count of armed and masked robbery, G. L.
c. 265, § 17; one count of armed kidnapping with sexual assault,
G. L. c. 265, § 26; one count of assault with intent to rape,
G. L. c. 265, § 24; and one count of carrying a firearm without
a license, G. L. c. 269, § 10 (a). In December 2015, after a
jury trial, he was acquitted on one count of rape while armed,
assault with intent to rape, and carrying a firearm without a
license.1 The jury deadlocked on the remaining three counts,
resulting in the declaration of a mistrial. Subsequently, in
March 2018, after determining that the alleged victim was unable
to testify at a retrial of those counts due to a relapse in her
substance use disorder, the Commonwealth filed a nolle prosequi.
Consequently, the defendant suffered no convictions resulting
from the charges.
On August 27, 2021, the defendant filed a petition pursuant
to G. L. c. 276, § 100C (§ 100C), opposed by the Commonwealth,
1 The trial judge granted the defendant's motion for a
required finding of not guilty as to the assault with intent to
rape and carrying a firearm charges, and on so much of the rape,
robbery, and kidnapping counts alleging the involvement of a
firearm. The jury found the defendant not guilty on the first
rape count.
3
to seal his criminal record as to both the counts on which he
was acquitted and the counts for which a nolle prosequi was
filed. After a hearing, a judge denied the defendant's petition
in writing. The defendant appealed. On appeal, the defendant
argues that the plain language of § 100C requires the sealing of
records in cases ending in findings of not guilty, no probable
cause, or a no bill by a grand jury, unless the defendant
objects to such sealing. He asserts that this court's holding
in Commonwealth v. Pon, 469 Mass. 296 (2014), resolves any
concern surrounding a right of public access under the First
Amendment to the United States Constitution. He further argues
that the judge abused his discretion in denying the petition
with respect to the counts that were nol prossed because he
misapplied the "good cause" standard, committing errors of fact
and judgment in weighing the factors relevant to his decision.
For the reasons articulated infra, we hold that, consistent
with Pon, a closed case that ends in an acquittal, a no bill
from a grand jury, or a finding of no probable cause by the
court is not a record subject to a First Amendment presumption
of access. We further hold that the Legislature clearly
abrogated the common-law presumption of access with respect to
these records by its plain language in § 100C, first par.
Regarding the counts in which the Commonwealth entered a nolle
prosequi, we conclude that the judge abused his discretion when
4
weighing the relevant interests and factors. Therefore, we
remand the case for further proceedings consistent with this
opinion.2
Background. On February 28, 2014, a grand jury returned
six indictments against the defendant, charging him with two
counts of aggravated rape, one count of armed and masked
robbery, one count of armed kidnapping with sexual assault, one
count of assault with intent to rape, and one count of unlawful
possession of a firearm. These charges stemmed from allegations
that the defendant, who knew the alleged victim, entered her car
while masked, told her that he had a gun, and drove her to
multiple automated teller machines attempting to have her
withdraw cash from her bank account. After the assailant was
unable to procure cash due to a lack of funds in the victim's
account, he drove her to a parking lot, raped her, and fled.
On December 9, 2015, a jury was empanelled, and trial
began. On December 16, the trial judge allowed the defendant's
motion for required findings of not guilty on the charges of
assault with intent to rape and unlawful possession of a
2 We recognize the amicus briefs submitted by Greater Boston
Legal Services and the Union of Minority Neighborhoods; Upturn,
Inc.; and Community Legal Aid; and the amicus letter submitted
by the Boston Bar Association.
5
firearm.3 On that same day, the jury acquitted the defendant on
the first count of aggravated rape. The jury were deadlocked as
to the remaining three charges.
The case was continued for the scheduling of a new trial,
and the defendant's bail was reduced. In addition to multiple
continuances by agreement, the Commonwealth advanced and
continued pretrial conferences and the trial date on several
occasions. On April 4, 2017, a judge found the alleged victim
unavailable for purposes of trial. The Commonwealth moved to
present the previous testimony of the unavailable witness, the
alleged victim, in the second trial. That motion was denied.
On July 10, the defendant filed a motion for production of the
alleged victim's psychiatric treatment records, which was
allowed. The case was continued to November 27 for trial. The
parties later jointly requested that the trial date be
rescheduled. On March 21, 2018, the Commonwealth filed a nolle
prosequi as to the remaining three counts: the remaining rape
count, robbery, and kidnapping with sexual assault.
3 The docket indicates that on April 4, 2017, the parties
agreed that the trial judge reduced the aggravated portion of
the remaining rape count and ordered the firearm provision
removed from the robbery count in accordance with his decision
on the required findings of not guilty.
6
On August 27, 2021, the defendant filed a petition to seal
his record in connection with the case.4 The docket indicates
that the case was continued to October 18 for a "[first] stage
motion to seal," where the defendant's presence was waived. On
October 18, the matter was taken under advisement, and the
Commonwealth filed its opposition on October 20. On January 6,
2022, the judge scheduled a hearing for "[s]tage [two] motion to
seal," but the hearing was continued due to the absence of an
interpreter for the defendant.
After another continuance for COVID-19 reasons, the hearing
was held on February 9, 2022. At the hearing, the parties and
the judge discussed Pon at length. The judge indicated his
belief that Pon requires "a higher standard" for cases ending in
not guilty verdicts: "the defendant must demonstrate that the
value of sealing clearly outweighs the constitutionally-based
value of the record remaining open to society."5
For the counts in which a nolle prosequi entered, the judge
stated that the "defendant must establish that good cause exists
for sealing, but it's a lessened burden on the defendant, and
4 According to the defendant's affidavit in support of his
petition to seal his criminal record, the only other incident on
his record is a charge of operating a motor vehicle with a
suspended license, which was dismissed on the payment of court
costs in 2012.
5 The judge indicated that this standard appeared in Pon,
469 Mass. at 313 n.24, discussed infra.
7
the [judge] must balance the interest at stake." Defense
counsel asserted that in Pon, 469 Mass. at 311, this court
rejected the argument that the records of closed criminal
proceedings resulting in an entry of nolle prosequi or dismissal
are subject to a First Amendment presumption of public access.
The judge responded that the relevant holding only applied to
the nolle prosequi counts at issue.6 Defense counsel went on to
argue that the plain language of § 100C requires sealing for the
counts on which the defendant was acquitted.
Discussing the factors in favor of sealing, the defendant
pointed out that it had been about four years since the
remaining counts had been nol prossed, and approximately six
years since the defendant's release, with the defendant
accumulating no new charges since then. He was aged forty-four
at the time of the hearing, and he had no criminal record aside
from the relevant charges and a dismissed charge of operating a
motor vehicle with a suspended license. The defendant, although
he has a job as a truck driver, has been unable to get better
paying jobs as a result of his record in this case.7 He
6 The judge also noted that this court "defer[ed]" to Globe
Newspaper Co. v. Pokaski, 868 F.2d 497, 509-511 (1st Cir. 1989)
(Pokaski), and that this court "sa[id it is] going to be bound
by [Pokaski]."
7 The defendant applied for, but was denied employment at,
among other places, a factory, an international airport as a
maintenance staff member, and a driver for various rideshare
8
explained the stigma that he suffers as a result of these
charges. The defendant acknowledged that the nature and reason
of the disposition, particularly the nol prossed counts, may not
weigh in his favor.8 The judge asked counsel about the publicity
surrounding the case. The defendant reported one article had
appeared in a local newspaper in 2014 about the case. The
Commonwealth noted that a news article about the case appeared
as a top result when searching the defendant's name on the
Internet.
The Commonwealth then summarized the facts of the case.
After testifying in the case, the alleged victim, who suffered
from substance use issues, relapsed as a result of the trauma
from her testimony. The Commonwealth continued the case several
times to "try[] to get her in a better position to be able to
companies. The defendant stated that the factory job demanded
his passport, and his criminal record had to be clean. From a
rideshare company, after he filled out an application, he
received a notice that "there's something that's being presented
that does not allow [him] to work."
8 The judge stated, with respect to the deadlocked jury on
the charges of
"rape with a firearm, robbery, armed and masked, and
kidnapping with sexual assault, armed . . . , wouldn't the
public want to [k]now, if those charges were . . . nol[]
pros[s]ed after a jury deadlocked on the charges.
"This is not a conviction; I understand it is not a
conviction, but it also is -- and there's some indication
that somebody thought there was some validity to the
charges, because the jury deadlocked."
9
testify, and ultimately, she wasn't." When another judge denied
the Commonwealth's motion to use her previous trial testimony at
the second trial, the Commonwealth had "no choice" but to file a
nolle prosequi as to the remaining charges. The Commonwealth
read a letter from the family of the alleged victim, who opposed
the sealing of the defendant's record, which detailed the severe
psychological distress and pain that she has suffered and
continues to suffer as a result of the violent crimes committed
against her.
On February 14, 2022, in a written decision, the judge
denied the defendant's motion to seal his record in its
entirety. The defendant appealed, and we allowed his
application for direct appellate review.
Discussion. 1. Presumption of public access to criminal
records for cases ending in findings of not guilty, a no bill by
the grand jury, or a finding of no probable cause by the court.
The defendant argues that by its terms, § 100C, first par.,
calls for automatic sealing with no court involvement unless the
defendant requests otherwise as part of a fully integrated
scheme enacted by the Legislature. He asserts that the 2010
reforms to the criminal offender record information (CORI)
system reaffirmed the Legislature's commitment to the
preexisting record sealing scheme, and that Pon removed any
constitutional impediment to the Legislature's directive to
10
automatically seal closed cases ending in acquittal, as public
access would not do much to ensure the integrity of criminal
proceedings where there never was probable cause to bring the
charges or where a jury acquitted a defendant. The defendant
argues that the Legislature, in enacting § 100C, first par.,
unequivocally abrogated the common-law presumption of public
access to judicial records.
The Commonwealth argues that the judge did not err in
requiring the defendant to demonstrate that the value of sealing
the records of his acquittals at trial clearly outweighs the
constitutionally based value of the record remaining open to
society where the Pon decision did not extend to § 100C, first
par., and where Globe Newspaper Co. v. Pokaski, 868 F.2d 497,
509-511 (1st Cir. 1989), found a First Amendment presumption of
access in criminal cases ending with findings of not guilty.
The Commonwealth asserts that, in fact, the judge did apply the
Pon analysis to the defendant's petition to seal the not guilty
charges. Finally, the Commonwealth argues that because the
entire criminal case did not result in a finding of not guilty
(the defendant was only acquitted on three of the six
indictments against him), the statutory language of § 100C,
first par., does not apply to the defendant's acquittals.
Section 100C states, in relevant part:
11
"In any criminal case wherein the defendant has been found
not guilty by the court or jury, or a no bill has been
returned by the grand jury, or a finding of no probable
cause has been made by the court, the commissioner of
probation [(commissioner)] shall seal said court appearance
and disposition recorded in his files and the clerk and the
probation officers of the courts in which the proceedings
occurred or were initiated shall likewise seal the records
of the proceedings in their files. The provisions of this
paragraph shall not apply if the defendant makes a written
request to the commissioner not to seal the records of the
proceedings.
"In any criminal case wherein a nolle prosequi has been
entered, or a dismissal has been entered by the court, and
it appears to the court that substantial justice would best
be served, the court shall direct the clerk to seal the
records of the proceedings in his files. The clerk shall
forthwith notify the commissioner . . . and the probation
officer of the courts in which the proceedings occurred or
were initiated who shall likewise seal the records of the
proceedings in their files."
G. L. c. 276, § 100C, first and second pars.
In Pokaski, 868 F.2d at 499, the decision relied on by the
Commonwealth, the United States Court of Appeals for the First
Circuit addressed whether there is a constitutional right of
access to the records of cases sealed pursuant to § 100C.9 In
9 Before the First Circuit addressed § 100C, this court
discussed the statute in Commonwealth v. Vickey, 381 Mass. 762,
767 (1980) (declining to extend availability of sealing beyond
named dispositions to pardon as no "strong demonstration of a
legislative purpose not to limit the availability of sealing to
the named dispositions" where they "are premised on a
presumption of innocence"). The court focused on the named
dispositions in § 100C -- not guilty, nolle prosequi, no bill,
no probable cause, dismissal -- and their connection to a
presumption of innocence in reasoning that there is a real need
for the remedy of sealing. Id. at 769. In other words, the
court's perspective was that a criminal defendant should not
12
discussing § 100C, first par., the First Circuit noted that
where the defendant was found not guilty, a grand jury failed to
indict, or the court made a finding of no probable cause, § 100C
"provides for no court involvement; the sealing occurs
automatically upon the completion of a criminal case ending in
one of the above enumerated dispositions." Id. at 500. See
Attorney Gen. v. District Attorney for the Plymouth Dist., 484
Mass. 260, 270 (2020) (commissioner "shall" seal court record
where defendant found not guilty, no bill returned by grand
jury, or finding of no probable cause made by court);
Commonwealth v. Gavin G., 437 Mass. 470, 479 (2002) ("Under
§ 100C, an adult who is acquitted after trial, or as to whom the
grand jury return a no bill or a court finds no probable cause,
is entitled to immediate sealing"); Police Comm'r of Boston v.
Municipal Court of the Dorchester Dist., 374 Mass. 640, 649
(1978) (§ 100C, as enacted by St. 1973, c. 322, "provides that
probation records and court records must be sealed in criminal
cases on the request of a defendant who has been found not
guilty, as to whom no bill has been returned by the grand jury,
or where there has been a finding of no probable cause by the
court"); Commonwealth v. S.M.F., 40 Mass. App. Ct. 42, 44 (1996)
(§ 100C, first par., "mandates" sealing). The second paragraph,
suffer adverse consequences where no finding of guilt was
entered.
13
for cases ending with a nolle prosequi or a dismissal, to the
contrary, does not provide for "automatic" sealing. Pokaski,
supra.The First Circuit "has established a First Amendment right
of access to records submitted in connection with criminal
proceedings." Pokaski, 868 F.2d at 502. Underlying the
determination that there exists a constitutionally secured right
of access is the premise that the public should have a full
understanding of the criminal proceeding to serve as a check on
the judicial system. Id. After determining that the blanket
prohibition on the disclosure of records mentioned by § 100C,
first par., implicates the First Amendment, the First Circuit
held that the automatic sealing of records of cases ending in a
finding of not guilty or no probable cause could not withstand
strict scrutiny and violated the First Amendment.10 Id. at 505-
509. Further, the First Circuit noted that cases ending in a
finding of nolle prosequi or dismissal should be sealed "only
where it is necessary to achieve a compelling interest." Id. at
510.
Subsequently, in Commonwealth v. Doe, 420 Mass. 142 (1995),
overruled by Pon, 469 Mass. at 297, § 100C, second par., was at
The First Circuit held that there is no First Amendment
10
right of access to grand jury records where a grand jury refuses
to indict. Pokaski, 868 F.2d at 509.
14
issue.11 The court recognized the First Circuit's conclusion in
Pokaski that there is a First Amendment right of access to
records submitted in connection with criminal proceedings, which
rendered § 100C, first par., unconstitutional. Doe, supra at
147. Under the second paragraph, adopting the constitutional
analysis set forth in Pokaski, the court held that the
"substantial justice" requirement in that paragraph would not be
met "unless it is demonstrated, first at [a] preliminary hearing
and, if the matter proceeds that far, at [a] final hearing, that
the value of sealing to the defendant clearly outweighs the
constitutionally-based value of the record remaining open to
society." Id. at 151. In making this determination, it would
be appropriate for a judge to consider the reason for the nolle
prosequi or dismissal and the specific harm the defendant risks
suffering if the record were to remain open to the public. Id.
at 151-152.
In Pon, the most recent case discussing § 100C, the court
revisited the "stringent standard for discretionary sealing" set
out in Doe and articulated a new standard for sealing under
§ 100C, second par., which the court deemed necessary to achieve
the legislative intent. Pon, 469 Mass. at 297, 300. As a basis
Nonetheless, the court indicated that sealing under
11
§ 100C, first par., "was to occur automatically on the
completion of a criminal case ending in one of the enumerated
dispositions." Doe, 420 Mass. at 146-147.
15
for doing so, the court discussed the legislative history of §
100C and its counterparts, G. L. c. 276, §§ 100A and 100B. Id.
at 301.
Section 100C was "introduced in the 1970s shortly after the
passage of the initial CORI Act . . . which authorized the
creation of a comprehensive criminal justice information system
that would afford limited access to court-based criminal
records." Pon, 469 Mass. at 301. See St. 1973, c. 322, § 1,
inserting G. L. c. 276, § 100C. In 1983, the Legislature
amended the first paragraph to require that the commissioner
seal the relevant records, rather than sealing only on the
request of the defendant. See St. 1983, c. 312. In 1984, the
Legislature disposed of the requirement that the commissioner
notify the clerk and probation officers of the proceedings
before sealing the records associated with them. St. 1984,
c. 123.
"In 2010, the Legislature enacted extensive reforms to the
CORI scheme, extending access to official CORI records to more
employers, housing providers, and other organizations, for
limited use, and simultaneously broadening the scope of the
sealing provisions to enable more individuals to shield their
records from public view." Pon, 469 Mass. at 297. As a part of
these changes, the Legislature deleted the phrase "except in
cases in which an order of probation has been terminated" from
16
the second paragraph, permitting the court to seal cases in
which a defendant had received a continuance without a finding.12
St. 2010, c. 256, § 131.
In enacting these statutes, the Legislature intended to
balance several interests, including the public's interest in
accessing certain types of records relating to criminal
proceedings and a defendant's interest in sealing the record of
his or her criminal history, "recognizing that ready access to a
defendant's prior criminal record might frustrate a defendant's
access to employment, housing, and social contacts necessary to
. . . rehabilitation" (citation omitted). Pon, 469 Mass. at
301. In light of the changes made by the Legislature, the court
concluded that the test in Doe "serves to frustrate rather than
further the Legislature's purpose by imposing too high a burden
of proof on the defendant." Id. at 308.
The court analyzed whether there is a First Amendment
presumption of access to the records of criminal cases that have
been dismissed or subject to nolle prosequi, and determined that
Prior to the 2010 reforms, the second paragraph of § 100C
12
began, "[i]n any criminal case wherein a nolle prosequi has been
entered, or a dismissal has been entered by the court, except in
cases in which an order of probation has been terminated."
G. L. c. 276, § 100C, as amended through St. 1984, c. 123.
In 2018, the Legislature made changes to the fourth
paragraph of the statute, which is not at issue in this opinion.
See St. 2018, c. 69, §§ 193, 194.
17
there was not. Pon, 469 Mass. at 308-309, 311. Despite its
overruling of Doe and its rejection of the First Amendment
analysis in Pokaski with respect to the records mentioned in
§ 100C, second par., the court concluded in Pon that the records
are subject to a common-law presumption of public access which
may be restricted on a showing of "good cause" meriting sealing.
Id. at 311-312. In determining whether this standard is met,
judges should balance a variety of interests, considering
several factors discussed infra. Id. at 314-319. A judge no
longer needs to go through a two-hearing process, but instead
may conduct a single hearing on the merits once the judge
decides that a prima facie showing has been made on the
pleadings. Id. at 321-322. "After hearing the arguments and
balancing the interests at stake, if the judge is satisfied that
good cause merits sealing, the judge must make 'specific
findings on the record setting forth the interests considered by
the judge and the reasons for the order directing that such
sealing occur.'" Id. at 322, quoting Doe, 420 Mass. at 152–153.
Although Pon confined its holding to § 100C, second par.,
this court's reasoning supporting the conclusion that there is
no First Amendment presumption of access to records of a
criminal case ending in a nolle prosequi or a dismissal applies
with equal force to records of a criminal case wherein the
defendant has been found not guilty, where a no bill has been
18
returned by a grand jury, or where a finding of no probable
cause has been made. As the United States Supreme Court has not
yet addressed the First Amendment presumption of access as it
applies to these records, we are not bound by the First
Circuit's conclusion in Pokaski. Pon, 469 Mass. at 308, quoting
Commonwealth v. Montanez, 388 Mass. 603, 604 (1983) ("we are not
bound by decisions of Federal courts except the decisions of the
United States Supreme Court on questions of Federal law").
Applying the two-step test set out in Press-Enterprise Co.
v. Superior Court, 478 U.S. 1, 8-9 (1986) (Press-Enterprise II),
and examining the analysis conducted in Pon, it is clear that
the court's reasoning in Pon supports the conclusion that there
is no First Amendment presumption of access. The first step
requires us to "consider[] whether the place and process have
historically been open to the press and general public." Pon,
469 Mass. at 309, quoting Press-Enterprise II, supra at 8.
"[T]he courts of this country recognize a general right to
inspect and copy public records and documents, including
judicial records and documents. . . . It is uncontested,
however, that the right to inspect and copy judicial records is
not absolute" (footnote omitted). Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597-598 (1978).
Although court records historically have been accessible to
citizens of the Commonwealth, the court long has recognized that
19
some classes of court records should not be available for public
review, may be impounded on a showing of good cause, and may not
be presumptively open for public view by operation of statute.
Pon, 469 Mass. at 309. See New England Internet Café, LLC v.
Clerk of the Superior Court for Criminal Business in Suffolk
County, 462 Mass. 76, 90 (2012) (judge may seal documents on
showing of good cause); Republican Co. v. Appeals Court, 442
Mass. 218, 222-223 (2004) ("Massachusetts has long recognized a
common-law right of access to judicial records," but right of
access may be restricted on showing of "good cause"); Roe v.
Attorney Gen., 434 Mass. 418, 435 (2001) (records of conviction
are public records constitutionally required to be public);
Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546
(1977) (acknowledging "general principle of publicity" while
recognizing statutory limits on access to court proceedings and
official records).
The sealing of criminal records pursuant to § 100C would
not affect the public's ability to attend a criminal trial, or
the media's right to report on court proceedings or publish
truthful information relating to sealed proceedings. Pon, 469
Mass. at 310. "[Indeed,] the public had a right of access to
any court record before, during, and for a period of time after
the criminal trial [until the request for sealing was granted]."
Id., quoting State ex rel. Cincinnati Enquirer v. Winkler, 101
20
Ohio St. 3d 382, 385 (2004). The court in Pon concluded that
the records of closed cases resulting in a dismissal or nolle
prosequi have not been open historically to the press and the
public as have other "constitutionally cognizable elements of
criminal proceedings." Pon, supra. For the same reasons, the
records of closed cases that resulted in an acquittal after
trial, a finding of no probable cause, or a no bill from the
grand jury also have not been open historically to the press and
public.
The second step requires the court to "consider 'whether
public access plays a significant positive role in the
functioning of the particular process in question.'" Pon, 469
Mass. at 310, quoting Press-Enterprise II, 478 U.S. at 8. The
court concluded in Pon that "the availability of records of
criminal cases that have been closed after nonconviction" does
little to enhance the fairness and appearance of fairness of a
criminal trial. Pon, supra. Recognizing that criminal justice
agencies and several licensing commissions and other entities
with a particular need for the information will retain access to
sealed records, the court held that the integrity of the
processes at issue are preserved sufficiently. Id. at 310-311.
See G. L. c. 6, §§ 172-178B (discussing CORI access to various
entities and related sections); G. L. c. 276, §§ 100A, 100B,
100D (sealing statutes).
21
Even more than criminal cases ending in a nolle prosequi or
a dismissal, criminal charges ending in a finding of not guilty,
no probable cause, or a no bill after grand jury proceedings are
"premised on a presumption of innocence." Commonwealth v.
Vickey, 381 Mass. 762, 767 (1980). See Police Comm'r of Boston,
374 Mass. at 657 ("The fact of an arrest without probable cause
followed by total exoneration would seem to negate any possible
value to law enforcement of an arrest record because the sum
total of such an adjudication is that there was no evidence in
any way connecting the defendant with participation in criminal
activity"). Particularly where a jury found the defendant not
guilty on particular charges against him and were deadlocked on
the remaining charges, sealing the criminal records relating to
those charges does not "truly impede" the public from ensuring
that "the operations of government institutions [are] subject to
effective public scrutiny," as the public and the media were
free to attend the trial and hear the evidence against the
defendant13 (citation omitted). Pon, 469 Mass. at 310. See
Nixon, 435 U.S. at 610 ("The requirement of a public trial is
satisfied by the opportunity of members of the public and the
press to attend the trial and to report what they have
13Indeed, in the present case, the charges against the
defendant were published by at least one local news service.
22
observed"). See also Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 572-573 (1980) ("Instead of acquiring information
about trials by firsthand observation or by word of mouth from
those who attended, people now acquire it chiefly through the
print and electronic media"). Therefore, the First Amendment
presumption of access does not apply to nonconvictions mentioned
in § 100C, first par.14
Although these records are not entitled to a First
Amendment presumption of public access, they "are subject to a
common-law presumption of public access." Pon, 469 Mass. at
311. "In interpreting a statute, we presume that when the
Legislature enacts a law it is aware of the statutory and common
law that governed the matter in which it legislates." Globe
Newspaper Co., petitioner, 461 Mass. 113, 117 (2011). We review
the interpretation of a statute de novo. Commonwealth v. K.W.,
Our conclusion is bolstered by the fact that numerous
14
States have statutes commanding the automatic sealing of certain
nonconvictions. See Colo. Rev. Stat. § 24-72-705(1)(a), (a.5);
Conn. Gen. Stat. § 54-142a(a), (b); Fla. Stat. § 943.0595(2)(a),
(3)(a); Ga. Code Ann. § 35-3-37(h); Ky. Rev. Stat. Ann.
§ 431.076(1)(a); Mo. Rev. Stat. § 610.105(1); Neb. Rev. Stat.
§ 29-3523(3); N.H. Rev. Stat. Ann. § 651:5(II-a)(a); N.J. Rev.
Stat. § 2C:52-6(a)(1); N.Y. Crim. Proc. Law § 160.50(1)
(McKinney); 18 Pa. Cons. Stat. §§ 9121, 9122.2; R.I. Gen. Laws
§ 12-1-12.1; Utah Code Ann. § 77-40a-201(1)(a). See also State
v. Apt, 319 Conn. 494, 510 (2015); Doe v. State, 347 Ga. App.
246, 247 (2018), quoting Ga. Code Ann. § 35-3-37(a)(6); State v.
Coble, 299 Neb. 434, 440 (2018); State v. Williams, 173 N.H.
540, 545 (2020); People v. Anonymous, 34 N.Y.3d 631, 637 (2020);
State v. Diamante, 83 A.3d 546, 550-551 (R.I. 2014).
23
490 Mass. 619, 624 (2022). "Where the words [of a statute] are
'plain and unambiguous' in their meaning, we view them as
'conclusive as to legislative intent.'" Id., quoting Dorrian v.
LVNV Funding, LLC, 479 Mass. 265, 271 (2018). "Where the words
of the statute are ambiguous, we strive 'to make it an effectual
piece of legislation in harmony with common sense and sound
reason' and consistent with legislative intent." Pon, supra at
302, quoting Wolfe v. Gormally, 440 Mass. 699, 704 (2004).
"'Unless there is a violation of a constitutional guaranty,
the Legislature may modify or abrogate common law practices'
regarding public access to judicial records." Globe Newspaper
Co., petitioner, 461 Mass. at 118, quoting New Bedford Standard-
Times Publ. Co. v. Clerk of the Third Dist. Court of Bristol,
377 Mass. 404, 410 (1979). "[W]e do not interpret a statute to
modify or abrogate an area traditionally guided by the common
law, such as public access to judicial records, unless the
intent to do so is clear." Globe Newspaper Co., petitioner,
supra. See Chelsea Hous. Auth. v. McLaughlin, 482 Mass. 579,
590 (2019), quoting Riley v. Davison Constr. Co., 381 Mass. 432,
438 (1980) ("statute is not to be interpreted as effecting a
material change in or a repeal of the common law unless the
intent to do so is clearly expressed"). Where the common-law
doctrine "'is so repugnant to and inconsistent with' the statute
that 'both cannot stand,'" the statute preempts the common-law
24
doctrine by "necessary implication." Chelsea Hous. Auth., supra
at 591, quoting George v. National Water Main Cleaning Co., 477
Mass. 371, 378 (2017).
The plain language of § 100C, first par., evidences the
Legislature's clear intent to abrogate the common-law
presumption of access to the nonconvictions explicitly
referenced where it commands that "the commissioner . . . shall
seal said court appearance and disposition recorded in his
files" and the clerk and probation officers "shall likewise seal
the records of the proceedings in their files," unless "the
defendant makes a written request to the commissioner not to
seal the records of the proceedings" (emphases added). G. L.
c. 276, § 100C. See Johnson v. District Attorney for the N.
Dist., 342 Mass. 212, 215 (1961) ("The word 'shall' in a statute
is commonly a word of imperative obligation and is inconsistent
with the idea of discretion").
Although the court need not do so where the language of the
statute is unambiguous, going beyond the language, the intent of
the Legislature supports such an interpretation. The 2010
reforms to the CORI scheme "strongly indicate that the
Legislature was concerned with the collateral consequences of
criminal records and sought to make sealing broadly available to
individuals whose criminal histories or records no longer
presented concerns of recidivism." Pon, 469 Mass. at 306.
25
"Overall, the legislative history unmistakably suggests that the
Legislature's intent in enacting the 2010 reforms was to
recalibrate the balance between protecting public safety and
facilitating the reintegration of criminal defendants by
removing barriers to housing and employment." Id. at 307. Even
after Pon's invitation to the Legislature to "revisit[] the
language of" § 100C, first par., in its 2018 reforms to the
statute, the Legislature left the language alone. Id. at 313
n.24. See St. 2018, c. 69. We see this as a "clear" intent to
abrogate the common-law right to public access to the
nonconvictions at issue. Globe Newspaper Co., petitioner, 461
Mass. at 118.
We disagree with the Commonwealth's assertion that § 100C,
first par., does not apply because the jury did not acquit the
defendant on all six indictments. At the outset, the language
of the statute commands sealing of "said court appearance and
disposition" in "any criminal case wherein the defendant has
been found not guilty[,] . . . a no bill has been returned by
the grand jury, or a finding of no probable cause has been made
by the court." G. L. c. 276, § 100C. This general language
would seem to include favorable charges in cases where the
defendant was acquitted on some charges, but not all. If the
Legislature intended to limit sealing to cases where a defendant
26
is acquitted on all charges, it presumably would have said so.15
See Commonwealth v. Rossetti, 489 Mass. 589, 593 (2022), quoting
Commonwealth v. Williamson, 462 Mass. 676, 679 (2012) (we
"presume, as we must, that the Legislature intended what the
words of the statute say"). Contrast Colo. Rev. Stat. § 24-72-
705(1)(a)(II) (commanding sealing where "defendant is acquitted
of all counts in the case"); R.I. Gen. Laws § 12-1-12.1(b)
(court shall seal records of criminal case where person
acquitted of all counts in case); Utah Code Ann. § 77-40a-
201(1)(a) (automatic expungement of records in "case that
resulted in an acquittal on all charges"); State v. Diamante, 83
A.3d 546, 550-551 (R.I. 2014) (must be acquitted of "all
counts"). Further, even if the statutory language were
ambiguous, the legislative history, discussed supra, suggests
that the intent of the Legislature was to effectuate sealing in
a wider array of cases. Interpreting the statute to require
sealing of the records related to any charge where the defendant
15Were we to adopt the Commonwealth's interpretation of the
statute, where a defendant is found not guilty on one charge,
but guilty on five other charges within the same case, the
language of the statute requiring sealing in "any criminal case
wherein the defendant has been found not guilty" would seem to
result in sealing of the records relating to all the charges,
including the convictions. This would be nonsensical. See
Commonwealth v. Peterson, 476 Mass. 163, 167 (2017), quoting
Commonwealth v. Parent, 465 Mass. 395, 409-410 (2013) ("we do
not adhere blindly to a literal reading of a statute if doing so
would yield an 'absurd' or 'illogical' result").
27
was found not guilty, a no bill was returned by the grand jury,
or a finding of no probable cause was made would facilitate that
intent.16
2. Standard of review. We review a judge's decision on a
petition to seal a defendant's criminal record for an abuse of
discretion. Pon, 469 Mass. at 299. "Under the abuse of
discretion standard, the issue is whether the judge's decision
resulted from 'a clear error of judgment in weighing the factors
relevant to the decision . . . such that the decision falls
outside the range of reasonable alternatives' (quotation and
citation omitted)." Commonwealth v. Kolenovic, 471 Mass. 664,
672 (2015), S.C., 478 Mass. 189 (2017), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014). Where the judge's
decision "is based in part on whether the judge made an error of
law in interpreting the relevant statutes[,] we review the
interpretation of [the] statute de novo." K.W., 490 Mass. at
624.
3. Denial of defendant's petition. a. Charges of which
the defendant was found not guilty. As discussed supra, for
We understand the judge's point that "sealing all court
16
and probation records concerning the [n]ot [g]uilty [c]ounts in
isolation would be an extremely difficult task." Nonetheless,
this was the Legislature's clear intent in enacting the statute.
Were there to be a case where some counts are sealed and some
are not, we presume that redaction of information within the
records would achieve the intended outcome.
28
closed criminal cases falling under the first paragraph of
§ 100C, sealing is mandatory. With respect to the charges of
which the defendant was found not guilty, the judge erred in
failing to seal the records of these counts.
In his memorandum of decision on the defendant's petition
to seal, the judge stated: "Where the petitioner 'has been
found not guilty by the court or jury, . . .' the petitioner
must 'prove that the value of sealing . . . clearly outweighs
the constitutionally-based value of the record remaining open to
society.' Pon, 469 Mass. at 312."17 He expressed that this
court, in Pon, held "that, while the holding of Pokaski may
apply to petitions to seal filed pursuant to the first paragraph
of [§] 100C . . . it does not apply to petitions to seal filed
pursuant to the second paragraph of [§] 100C." Although he was
correct to direct "[t]he intellectually inquisitive reader who
wishes to fully understand the basis for the distinction" to
Pon, supra at 313 n.24, the judge misinterpreted the court's
directive.
In Pon, 469 Mass. at 313 n.24, the first paragraph of
§ 100C was "not at issue." The court "decline[d] to extend
[its] holding and the analysis [it] employ[ed] to [the first
paragraph] of the statute." Id. It discussed the practice of
17 The judge also indicated this confusion at the motion
hearing.
29
the District Court Department of the Trial Court to seal records
of acquittals or where judges made a finding of no probable
cause under the standard set out in Pokaski and reinforced by
Doe. Id. The court stated:
"[U]ntil the Legislature revisits the language of [§ 100C],
first par., or until the issue of its interpretation comes
before us, we observe that the solution adopted by the
District Court is a reasonable one, as long as it is
modified consistent with our holding in this case: that
sealing may occur where good cause justifies the overriding
of the general principle of publicity" (emphases added).
Id. Therefore, before our clarification in the present case,
the judge should have applied the good cause standard to both
the counts that resulted in verdicts of not guilty and the entry
of a nolle prosequi. Now, however, it is clear that where a
defendant stands acquitted on a charge (or a no bill is returned
by the grand jury or a finding of no probable cause has been
made by the court), the records pertaining to those charges
should be sealed, unless the defendant "makes a written request
to the commissioner" not to seal the records of the proceedings.
G. L. c. 276, § 100C.
The defendant requests that, if this court "concludes that
the judge did not abuse his discretion in denying the petition
as to the dismissed counts," we should remand the entire
petition, including the not guilty counts, to allow him to
30
decide how he would like to proceed.18 Because we remand the
case for the judge to illustrate his reasoning underlying his
findings on the nolle prosequi counts, infra, we remand the
petition on the not guilty counts as well so that the defendant
may clarify his intentions. If he decides that he would like
the records pertaining to his acquittals to remain open to the
public, he should make this clear in the Superior Court, and he
must make a written request to the commissioner not to seal such
records. G. L. c. 276, § 100C.
b. Charges resulting in nolle prosequis. As to the counts
that resulted in nolle prosequis, the defendant argues that the
judge purported to apply the correct standard, but misapplied it
by making clear errors of fact and judgment in weighing the
relevant factors. More specifically, he argues that the judge
failed to recognize that he was acquitted not only of carrying a
firearm, but also of so much of the rape and robbery counts as
alleged that he possessed a firearm; that the judge erred in his
factual findings regarding the time elapsed since the trial and
the nolle prosequis, which weighed heavily in his analysis; that
the relevant time period to assess the defendant's "likelihood
18He admits that the judge's question "whether it would
benefit [the defendant] to seal all court records pertaining to
the [n]ot [g]uilty [c]ounts, while leaving the records
pertaining to just the [n]olle [p]rosequi [c]ounts open to the
public" has some force.
31
of recidivism or success" is the time elapsed since the
defendant's release into the community, not the time since the
charges were nol prossed; and that the judge failed to consider
several highly pertinent factors, such as the extreme stigma
attached to the charges, the defendant's age, and his lack of
criminal history. Last, the defendant asserts that any
discussion of "rehabilitation" is improper where he never has
been convicted of a crime, and the judge gave insufficient
weight to the interests of the defendant and the Commonwealth in
keeping the records private.
The Commonwealth argues that the judge properly considered
all the factors set out in Pon. For the reasons discussed
infra, we remand the matter to the Superior Court for the judge
to clarify his reasoning.
The second paragraph of § 100C states, in part: "In any
criminal case wherein a nolle prosequi has been entered, . . .
and it appears to the court that substantial justice would best
be served, the court shall direct the clerk to seal the records
of the proceedings in his files." G. L. c. 276, § 100C. In
demonstrating that "substantial justice [will] best be served,"
a "defendant must establish that good cause exists for sealing";
in other words, the reason for sealing "justifies the overriding
of the general principle of publicity." Pon, 469 Mass. at 312-
313. "Although a good cause analysis requires consideration of
32
similar factors as an analysis where the First Amendment is
implicated, . . . the weight of the scales is more balanced, and
the burden on the defendant is somewhat lessened." Id.When assessing whether a defendant has met the "good cause"
standard for sealing, a judge must balance the numerous
interests at stake. Pon, 469 Mass. at 314. "If, after
balancing those interests, the judge determines that the
defendant has done so, the substantial justice standard will be
satisfied." Id. In conducting this balancing test, a judge
"should begin by recognizing the public interests at stake."
Id. at 315.
Concomitant with the common-law presumption of access, the
public has an interest in knowing about criminal charges so that
it may hold the government accountable for the administration of
justice. Pon, 469 Mass. at 315. On the other end of the
spectrum, judges must acknowledge the interests of the
Commonwealth and the defendant in keeping the information
private. Id. "These interests include the compelling
governmental interests in reducing recidivism, facilitating
reintegration, and ensuring self-sufficiency by promoting
employment and housing opportunities for former criminal
defendants." Id. In balancing these interests, a judge may
take judicial notice of the fact that the existence of a
33
criminal record may "present barriers to housing and employment
opportunities." Id. at 316.
Although judges may consider any factors relevant to their
weighing of the interests at stake, the court in Pon set out
particularly relevant factors for a judge to consider, which the
judge noted in his decision here, stating that he "considered"
all the factors. The first factor to be considered focuses on
"the disadvantages the defendant claims to face due to the
availability of his . . . criminal record." Pon, 469 Mass. at
316. This may include any effect on the defendant's employment,
housing, ability to participate in community or volunteer
activities, ability to advance economically or professionally,
and reliance on public assistance. Id. at 317.
The defendant, in his petition, identified the
disadvantages that he suffers from as a result of his criminal
record, including preclusion of further employment opportunities
and better paying jobs.19 In his decision, the judge recognized,
in a sentence, that the defendant "undoubtedly" faces
disadvantages as a result of the availability of his criminal
record. Although it would have been better if the judge
expanded on this with specific details from the defendant's
At the hearing, the defendant expanded on particular
19
employment opportunities of which he was deprived, alleging that
these opportunities were withheld because of his record in this
case.
34
case, it is implicit that the judge acknowledged the profound
effect such serious charges on his record must have. On remand,
we urge the judge to elaborate on these disadvantages in order
to afford them the proper weight and assure the parties that the
judge has considered the issue adequately.
The second factor to consider, as set out in Pon, is
"evidence of rehabilitation." Pon, 469 Mass. at 317.
"Employment attempts, community or civic engagement,
successful completion of a probationary period or sobriety
or mental health treatment, lack of further contact with
the criminal justice system, or other accomplishments may
weigh in favor of sealing by demonstrating that the
defendant bears a low risk of recidivism and a likelihood
of success in future employment."
Id. The defendant's argument that where he never has been
convicted of a crime or admitted to sufficient facts for a
finding of guilty, he should not be required to show "evidence
of rehabilitation," is persuasive. Cf. Commonwealth v. Healy,
452 Mass. 510, 515 (2008) (in sentencing, "[j]udges may not
punish the defendant for offenses of which he or she does not
stand convicted in the particular case"); In re Kollman, 210
N.J. 557, 576 (2012) ("Facts related to an arrest that did not
result in conviction, or to a dismissed charge, may . . . offer
insight into an applicant's character and conduct. . . . To
assess the public interest . . . courts [may] consider conduct
before the time of conviction . . . [only so far as they are]
established or undisputed facts, not unproven allegations").
35
Contrast Pon, 469 Mass. at 298 (defendant admitted to sufficient
facts for guilty finding). The judge should have recognized
this in his discussion of the factors.
Even if we were to assume that evidence of rehabilitation
is applicable to the defendant, he demonstrated that he has
taken a number of steps suggesting "rehabilitation," as it is
defined in Pon. He had not faced any new criminal charges
following the case at issue and, as of the date of the hearing,
had remained free of charges for over five years since his
release on bail in 2016.20 Further, he had maintained employment
since his release.
Aside from mentioning that the defendant "presented some
'evidence of rehabilitation,'" the judge discussed none of these
factors. This was an abuse of discretion, requiring remand for
the judge to expand on his consideration of all the relevant
factors. On remand, we urge the judge to describe in detail his
weighing of these positive factors in addition to those that he
found weighed against sealing in order to illustrate the
"balancing" test that Pon requires judges to conduct.
The third factor for the judge to consider is "other
evidence on whether sealing [the records] would alleviate the
20Where we have not been alerted otherwise by the
Commonwealth, it appears that the defendant now has gone over
seven years without being charged with any new offenses.
36
identified disadvantages." Pon, 469 Mass. at 317. Some
examples of such evidence may include the nature of the crimes
with which the defendant was charged; the stigma associated with
the charges; whether the defendant would pose an additional
safety threat to the community were his or her record to be
sealed; and whether the defendant maintains any sense of
privacy, i.e., whether his or her charges were newsworthy to the
extent that sealing would not provide a benefit. Id. at 317-
318.
The judge indicated, in his written decision, that
insufficient time had passed to determine whether the sealing of
the defendant's record would pose an additional safety threat to
the community. Nonetheless, the judge did not mention the
stigma associated with the particularly abhorrent crimes with
which the defendant was charged, nor did he discuss the
publicity that the defendant's case received in the news.
Although counsel mentioned these factors at the hearing, we
cannot determine from the record whether the judge considered
them or, if he did, what weight he gave them. It is necessary
that the judge explicitly state for the record the factors he
considered. To not do so, where they were relevant to the case
and discussed at the hearing, was an abuse of discretion. See,
e.g., Commonwealth v. Nash, 486 Mass. 394, 414 (2020) (single
justice abused her discretion in assessment of security factors
37
when determining whether to grant motion for stay of sentence
pending appeal, where her assessment was "underinclusive");
Commonwealth v. Grassie, 476 Mass. 202, 214-215 (2017), S.C.,
482 Mass. 1017 (2019) ("there must be some mechanism by which an
appellate court can meaningfully assess whether a judge acted
appropriately in granting or denying [Mass. R. Crim. P.
25 (b) (2), as amended, 420 Mass. 1502 (1995)], relief. For
instance, if a judge grants a motion to reduce a verdict, the
expectation is that the judge will explain his or her reasoning
in a written ruling or an oral explanation on the record");
L.L., 470 Mass. at 185 n.27 ("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" [citation omitted]).
Fourth, the judge should consider "the defendant's
circumstances at the time of the offense." Pon, 469 Mass. at
318. This includes the defendant's age, insofar as it speaks to
his capacity for rehabilitation, and his prior criminal history
leading up to the offense. Id. As the defendant points out,
the judge made no mention of the defendant's lack of a criminal
record. Aside from a dismissal in 2012 on court costs of a
charge of operating a motor vehicle with a suspended license,
the defendant had no criminal record prior to the charges at
38
issue. Where the defendant was aged forty-four at the time of
his petition, his inexperience in the criminal justice system
has some weight, deserving of mention in the judge's decision.
See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender
Registry Bd., 456 Mass. 612, 621 (2010) (several scientific and
statistical studies "conclude that age is an important factor in
determining the risk of recidivism and that such risk diminishes
significantly as an offender ages").
In discussing the fifth factor, "the passage of time since
the date of the offense and the date of the dismissal or nolle
prosequi," we note several factual errors. Pon, 469 Mass. at
318. The judge wrote that it had been "three years since the
dismissal" of the counts in which a nolle prosequi was entered,
and he indicated that the trial took place in December 2017,
"less than five years ago." In fact, at the time of the
issuance of the judge's decision in February 2022, it had been
nearly four years since the nolle prosequi issued, and the trial
was conducted in December 2015, over six years prior. We do not
mean to suggest that it was improper for the judge to conclude
that not enough time had passed from the date of the offense,
trial, or nolle prosequi to merit sealing, and arguably the
difference in the calculation of time is insignificant. But
where the judge made factual errors crucial to a factor that was
a primary influence in his decision, we cannot determine whether
39
his conclusion would be the same were he to have referenced the
correct time periods.21 On remand, the judge should address
this.
As to the defendant's assertion that the "relevant
timeframe [to consider] was the six years during which [he] had
lived in the community without incident following his release
from pretrial detention," Pon instructs that both "the passage
of time since the date of the offense and the date of the
dismissal or nolle prosequi" are important factors (emphases
added). Pon, 469 Mass. at 318. Admitting that the passage of
time since the defendant was in the community after he was
charged with the offenses is relevant to "the risk of
recidivism," the judge would not have abused his discretion if
he had considered the correct period of time since his remaining
charges were nol prossed: almost four years at the issuance of
his decision and over five years to date. See id. ("If sealing
is sought immediately following the disposition, there may be
21The judge indicated that the passage of time since
dismissal of the nolle prosequi counts was insufficient for him
to assess accurately the defendant's likelihood of recidivism
and the additional safety threat sealing would pose. He also
indicated that a prospective employer might want to know that
"less than five years ago," a "jury deadlocked over the question
of whether [the defendant] had kidnapped, robbed, and raped a
woman at gunpoint." Further contributing to the error, the
judge appeared to be incorrect about the "at gunpoint" comment:
the parties agreed that the trial judge reduced the aggravated
portion of the remaining rape count and ordered the firearm
provision removed from the robbery count.
40
concerns that the public has not had sufficient opportunity for
access, and that the defendant may be likely to reoffend").
Finally, the judge heavily relied on the sixth factor, "the
nature of and reasons for the disposition," in coming to his
conclusion to deny the defendant's petition to seal. Pon, 469
Mass. at 319. The judge stated:
"The [c]ourt . . . strongly believes that the 'nature and
reasons for the disposition' of the [n]olle [p]rosequi
[c]ounts against [the defendant] constitutes information
that the public has a 'general right to know.' Although
[the defendant] is correct that the jury . . . 'did not
find the allegations (of the [n]olle [p]rosequi [c]ounts)
to be proven beyond a reasonable doubt' . . . neither did
the jury exonerate him of those charges. Indeed, someone
interested in [the defendant's] past -- including a
prospective employer thinking of hiring [him] for a
position that would bring him into frequent contact with
members of the public -- might very well want to know that,
less than five years ago, a . . . jury deadlocked over the
question of whether [the defendant] had kidnapped, robbed,
and raped a woman at gunpoint."
Aside from the factual error where the defendant was acquitted
of the aggravating portion of the commission of his crimes at
gunpoint, this factor undeniably is important. The particular
reason for the nolle prosequis, that the victim relapsed and was
unable to testify, does not speak to the defendant's innocence
on the charges. See id. ("Defendants who were subject to
wrongful accusations present the strongest case for sealing").
Despite his consideration of this relevant factor, where the
judge failed to discuss all the factors mentioned supra in favor
of the defendant and the Commonwealth's interests in keeping the
41
records private, we cannot be sure that he appropriately
balanced the interests relevant to a reasoned determination
whether "substantial justice would best be served" by sealing.
Conclusion. We take no position on whether the defendant's
record should be sealed on the counts in which the Commonwealth
entered a nolle prosequi. We remand for the purpose of allowing
the judge to adequately address and illustrate all the relevant
factors in his balancing of the various interests. On remand,
the defendant should clarify his position with respect to
automatic sealing of the charges of which he was acquitted. If
he determines that he would prefer them to remain open to the
public, he must make a written request to the commissioner not
to seal those records.
So ordered.