MNPA Files Comments on Proposed Court Access Rules

The MNPA today filed comments on proposed rules that would govern public access to court records.

The proposed Trial Court Rule XIV, Uniform Rules on Public Access to Court Records, would control access both to physical records in a courthouse and electronic records available online.

The MNPA opposes parts of the proposed rule and supports other aspects of it. Our full comments to the committee considering the rule are posted below.

Newburyport Newspaper Wins Fight to Open Clerk-Magistrate Hearing

The Newburyport Daily News recently succeeded in opening to the public a closed clerk magistrate’s show cause hearing on a brawl that occurred outside a Plum Island beach house.

But it wasn’t without drama, including a surprise last-minute ruling by Justice Robert J. Cordy of the state Supreme Judicial Court that could help Massachusetts media gain wider access to such hearings.

Clerk magistrate show cause hearings are typically closed in Massachusetts to protect the privacy of the accused because they have not yet been formally charged. But the clerk magistrate can open a hearing if there is legitimate public interest in the proceeding.

Robert Bonin, clerk magistrate for the Newburyport District Court, declined that option when a Daily News reporter showed up at the Aug. 20 hearing on whether formal charges were warranted against seven persons police identified as parties to a vicious Plum Island street fight on Memorial Day of last year.

Peter Caruso Sr., the paper’s attorney, promptly filed a motion to open the courtroom to the public on the basis police had already released the names of the parties, the brawl had been prominently publicized in the media, and there was obvious public interest in the court proceeding.

Clerk Magistrate Bonin denied Caruso’s motion, citing the historic rights of the accused to a closed courtroom. Mere minutes before Bonin was to begin the hearing, Caruso appealed to District Judge Peter Doyle to intercede.

Doyle also rebuffed Caruso, but he did postpone the show cause hearing for an hour (to 11 a.m.) to give the paper’s attorney an ever-so-brief opportunity to appeal to the SJC. Caruso quickly scribbled his argument on legal paper and faxed it to the high court.

With the 11 o’clock hour approaching and no response, Bonin again prepared to convene the closed hearing when his phone rang. The SJC told the clerk magistrate to delay for another half-hour so Justice Cordy could research the paper’s appeal.

Then, alas, at 11:30 a.m. sharp, Cordy’s three-page ruling arrived by fax, instructing the clerk magistrate to open the hearing to the public on the ground the brawl and subsequent investigation “had a profound effect” on residents of the Plum Island neighborhood and the public perception of the police.

It was a rare victory for the public, but also a lesson in the value of the press challenging clerk magistrate show cause hearings when a significant issue is at stake.

There is latitude in the district court rule regarding such hearings.

The rule states: “If the application [for issuance of process] is one of special public significance, and if in the opinion of the magistrate the legitimate interest of the public outweighs the right of privacy in the accused, the hearing may be open to the public, and should be conducted in the formal atmosphere of a courtroom.”

Caruso called Justice Cordy’s decision a “breath of fresh air.” He said too often the media fails to challenge clerk magistrate show cause hearings because they are presumptively closed to the public.

“There are cases that cry for a full and open public airing to ease any doubt of secret dealings,” said Caruso. “The news media needs to be more aggressive in contesting the closing of the courtroom in these cases.”

Caruso knows of what he speaks. He was also the attorney who successfully opened the clerk magistrate hearing in Boston in 2003 to determine if assault and battery charges would be issued against New York Yankees pitcher Jeff Nelson and outfielder Karim Garcia for fighting with a Fenway Park groundskeeper during a playoff game.

The fight followed the infamous bench-clearing melee in the fourth inning in which Yankees coach Don Zimmer rushed Red Sox pitcher Pedro Martinez, who shoved Zimmer to the ground.

This post was written by William B. Ketter, vice president of news, Community Newspaper Holdings Inc. CNHI owns the Newburyport newspaper.

MNPA Joins in Legal Fight for Access to Documents in Bradley Manning Court Martial

The Massachusetts Newspaper Publishers Association joined with the Reporters Committee for Freedom of the Press and 30 national and regional news organizations in a friend-of-the-court brief seeking access to documents filed in the court martial of Pfc. Bradley Manning, the man accused of leaking classified documents to the website Wikileaks.

The brief follows from a request by the Center for Constitutional Rights and a number of other organizations to intervene in the Manning court martial in order to obtain access to documents filed in the proceeding. The trial court denied the request, a decision that was affirmed by the military’s intermediate appellate court. CCR appealed the ruling to the U.S. Court of Appeals for the Armed Forces, the military’s highest appellate court.

The RCFP friend-of-the-court brief support CCR’s position, arguing that the well-recognized right of public access to judicial proceedings mandates access to courts-martial documents. In cases like these, where profound issues are at stake, pervasive secrecy fuels a perception that the U.S. government keeps too many secrets, the brief argued. If the public is to have any faith in its government generally and the justice administered by military tribunals specifically, it needs to have confidence that the system is operating in the open, where potential misconduct may be exposed, it added.

Another New England organization, the New England First Amendment Center, also joined in the brief.

To read more, see Reporters Committee supports access to court filings, docket in Manning court-martial.

Search Warrant Affidavits Open to Newspaper, SJC Rules

In a victory for the news media, the Supreme Judicial Court today sided with the Quincy Patriot Ledger and ruled that the affidavit filed by police in support of a search warrant should be open to the public.

The case involved a State Police investigation into allegations that a prominent Quincy real estate developer, William O’Connell, had engaged in unlawful sexual relations with a minor. Shortly after police executed the warrant, a Quincy District Court judge impounded the affidavit.

The Patriot Ledger intervened in the criminal case to seek access to the impounded affidavit. Ruling that the document was presumptively public, the District Court judge lifted the impoundment order. Prosecutors and O’Connell both appealed.

On appeal to the SJC, the Massachusetts Newspaper Publishers Association filed an amicus brief in support of the Patriot Ledger, together with the New England Newspaper and Press Association, the Citizen Media Law Project and the New England First Amendment Coalition.

In its decision today, the SJC noted that there is a longstanding presumption in favor of public access to search warrants and supporting materials. While a judge may restrict access for good cause, impoundment should be used only in limited and specific circumstances, the SJC said.

Here, the SJC rejected O’Connell’s argument that release of the affidavit would prejudice his right to a fair trial. “By engaging in the proper balancing of interests, and utilizing the procedural tools available in criminal proceedings, judges are well equipped to safeguard a defendant’s right to a fair trial,” the court said.

The SJC also ruled for the first time on the applicability of a state law that makes reports to police of rapes or sexual assaults private. General Laws c. 41, § 97D, provides: “All reports of rape and sexual assault or attempts to commit such offenses and all conversations between police officers and victims of said offenses shall not be public reports and shall be maintained by the police departments in a manner which will assure their confidentiality.”

Prosecutors and O’Connell argued that this statute applied not only to police records, but also to court records, including search warrant affidavits. The SJC concluded otherwise, it does not by its terms preclude publication in court of police reports or the content of a victim’s conversations with police regarding an alleged rape or sexual assault.

The case is Commonwealth v. George W. Prescott Publishing Co., LLC.

MNPA Files Amicus Brief on Access to Search Warrant Documents

The Massachusetts Newspaper Publishers Association joined with other news organizations last week to file an amicus brief in a case before the Supreme Judicial Court that involves public access to affidavits and other documents filed in support of a search warrant.

On Wednesday, Nov. 9, at 9 a.m., the SJC will hear arguments in the case, William O’Connell v. Criminal Clerk of Quincy District Court. The appeal results from a request by The Patriot Ledger in Quincy to terminate an impoundment order covering documents filed in support of a warrant to search O’Connell’s condominium. O’Connell’s principle argument in support of maintaining the secrecy of the documents is that they involve allegations of rape and sexual assault. But the District Court judge, in lifting the impoundment order, ordered that any references to the alleged victim be redacted to protect her privacy.

The MNPA filed its brief — which can be downloaded from the SJC’s website — in conjunction with the New England Newspaper and Press Association, the Citizen Media Law Project and the New England First Amendment Coalition. Andover media-law attorney Peter J. Caruso Sr. wrote the brief for the MNPA.

The arguments at the SJC this week will be webcast.