Greenfield judge OKs photos in court

[The following is reprinted with permission from today’s Recorder.]

By GEORGE W. CLAXTON
Recorder Staff

GREENFIELD – News photographers were allowed to photograph the Deerfield Sunoco strangling suspect Thursday after a Superior Court judge ruled the press has a clear constitutional right to be present during routine court proceedings.

Defense lawyers must have truly compelling and specific reasons to demand that reporters and photographers be kept out of court, said Superior Court Justice Bertha Josephson in a ruling from the bench. And in this case, the defense arguments for keeping cameras out of the courtroom weren’t compelling enough, the judge ruled.

Nevertheless, as it turned out, the defendant, Dennis M. Bateman, managed to keep his face obscured from newspaper and television cameramen, whose vantage point and movement in the courtroom was restricted by the judge so as to not disrupt the proceedings.

Bateman stood stolidly with his back to the cameras that were located in the center aisle of the public gallery and, when sitting, hung his head low and covered his face with his left hand so that little could be seen beyond his shaven head and the circlet of the handcuff on his wrist.

“Of course the news media is allowed to be present and of course cameras are allowed to be present,” said Josephson. According to the judge, state Supreme Judicial Court rules say unconditionally that judges “shall permit broadcasting, televising, electronic recording or taking photographs of proceedings open to the public in the courtroom … for news gathering purposes and dissemination of information to the public.”

“The First Amendment guarantees the press the right to be present during public trials.

“The media’s right of access is derived from the public’s right to access, neither more nor less. The media is entitled to be present,” she said.

The question of press rights to take photographs in the courtroom was raised at Bateman’s arraignment, which was for larceny – not murder. Prosecutors have not charged Bateman with murder.

Bateman, 40, whose last known address was 38 Silver St., was held on $10,000 cash bail Thursday on charges of misdemeanor larceny and being a common and notorious thief, although he was also named by Deputy First Assistant District Attorney Elizabeth Dunphy-Farris as a “person of interest” in the slaying April 16 of a pregnant gas station attendant in Old Deerfield.

Defense attorney Byron Caplice argued Thursday that the press has no interest in the larceny charge against Bateman and are focused on the matter only because he is a suspect in the strangulation murder of a pregnant woman.

“According to an article in the Greenfield Recorder, on May 5, 2005, vehicles belonging to his family were vandalized and graffitied overnight, with the words ‘Baby Killer’ painted on one, an obvious reference to the pregnant murder victim,” he said.

Caplice also argued that, should Bateman be released on bail, his life might be endangered by people with a vigilante mind-set who might think him guilty of the murder by virtue of being accused.

David Angier, who represented The Recorder, the Associated Press and the Daily Hampshire Gazette in the constitutional battle in Thursday’s hearing, argued that the presumption, in Massachusetts law, is that the court will be open to the press, both the newspapers and electronic reporting. He said that Caplice had not put forward any specific reasons for not photographing Bateman and had only cited “possible” and “potential” dangers if the man’s face was shown.

“The defendant has the burden of proving specific prejudice,” he said, adding that one exception to the general rule of access would be to show a “substantial likelihood of harm.”

According to Angier, the only case in which the shielding of participants was allowed by the SJC was in the Big Dan’s rape case in Fall River in which the victim submitted a lengthy affidavit that demonstrated specific problems “sufficient to permit the judge to find a substantial likelihood of harm.”

Angier said that any argument that Bateman might be prejudged by having his photograph in the newspaper can be dealt with at trial by cross-examination.

Once the judge ruled in favor of the press on the constitutional issue, she called for the arraignment of Bateman on the Superior Court indictment. Bateman was then brought into the courtroom, but The Recorder photographer and a television cameraman were ordered not to take pictures until the court was in session. By then the suspect was settled at the defense table, with his back to the gallery.

Dunphy-Farris requested that Bateman’s bail be increased to $50,000 based on his extensive record, his history of escape and the fact that he was planning to move out of the area just before he was arrested.

Caplice argued that, although Bateman has failed to show up for court before, that is not the same as running away.

“He has never left the commonwealth,” the defense lawyer said.

Caplice said that Bateman came under suspicion early in the investigation and cooperated with the police by providing fingerprints, DNA, shoe prints and other evidence that they requested. He also said that the arrest for the larceny was merely pretext to hold Bateman while the district attorney tries to find evidence to charge him with the slaying. He likened Bateman to people being held without charge as terror suspects in Afghanistan and Cuba.

“They don’t have enough to charge Mr. Bateman for the murder,” he said.

Previously, Bateman’s wife said that he was at the Deerfield Sunoco station on the day of the murder and knew the victim.

According to the defense attorney, Bateman’s failure to pay for the $4.46
pint of bourbon that triggered the larceny charge was a mistake that he rectified a few days after the shoplifting.

Dunphy-Farris said that Bateman only went back to pay for the purloined liquor because he knew that police were on to him and were investigating the theft.

“That could be seen as intimidation of a witness,” she said.

“What she calls intimidation of a witness, I call making restitution,” Caplice said hotly.

The defense lawyer also argued that, if the crime was properly charged, it would be called shoplifting and not larceny and, in that case, the felony charge of common and notorious thief could not be brought.

Bateman has been charged as a common and notorious thief on the grounds he has been convicted in the past of 12 counts of breaking and entering in the night in order to commit a larceny, nine counts of felony larceny, five counts of receiving stolen property, three counts of possession of burglar’s tools, carrying a dangerous weapon and escape from custody. He also has seven defaults on his record for failure to show up for court as required, including two such defaults in the last nine months.

If Bateman is found guilty of being a notorious thief, he could be imprisoned for up to 20 years.

Bateman has been ordered to return to court in June for a pretrial hearing on the theft-related charges.

You can reach George Claxton at: gclaxton@recorder.com or (413) 772-0261
Ext. 279

Federal judge imposes gag order on reporter

A federal judge in Massachusetts last week imposed a gag order against The Standard-Times in New Bedford, barring it from publishing what reporter Ray Henry heard on March 31 at a court hearing on a motion by an accused drug trafficker.

The gag order expired this morning when federal prosecutors failed to file an appeal.

During the March 31 hearing before U.S. District Judge Robert E. Keeton, federal prosecutors disclosed what the court determined was privileged information without first determining who was in the courtroom. The session was not closed to the public and the reporter and others were permitted by a U.S. marshal to enter.

The gag order was set to expire at 11 a.m. today, unless prosecutors or defense lawyers asked the Court of Appeals to intervene. The newspaper called the gag order prior restraint of its First Amendment rights.

See the Standard-Times report: S-T challenges gag order in drug case.

Bills seek overhaul of state law

Six Bills Seek Overhaul of State Law
By DAN RING and BUFFY SPENCER
The Republican / March 18, 2005

“BOSTON – State and municipal officials would face fines if they intentionally violate the state’s Open Meeting Law, according to legislation pending on Beacon Hill.

“Opponents said the legislation would discourage people from serving in government and would clog the courts with more lawsuits. Supporters said the bills are needed to toughen enforcement of the law.

“Six bills to overhaul the law were filed by Rep. Arthur J. Broadhurst, D-Methuen, at the request of the Massachusetts Newspaper Publishers Association.”

Read more.

The Republican: Focusing on the public’s right to know

Focusing on the public’s right to know
By Larry McDermott / The Republican
March 13, 2005

“The Massachusetts Newspaper Publishers Association has filed legislation that would toughen the penalties for violators and award court costs and lawyer’s fees to individuals who bring successful enforcement actions. The bill is sponsored by Rep. Arthur Broadhurst, D-Methuen.

“This same newspaper publishers organization fought for and won in 1990 limited access to some criminals’ records under the Criminal Offender Record Information Act, known as CORI. Since then, the public has been informed – by the press – countless times of information that it might never have received otherwise. You need look no further back in time than this past week for an example.”

MetroWest Daily News: Publishers Propose Legislation

Publishers propose legislation
By Theresa Edo / MetroWest Daily News
Sunday, March 13, 2005

“The Massachusetts Newspaper Publishers Association hopes two proposed amendments will help make officials think twice about willfully violating — or simply not knowing — the ins and outs of the state’s Open Meeting Law.

“The association in December submitted two draft amendments to state Rep. Arthur Broadhurst, D-Methuen, in hopes that the Legislature might take up the discussion to add teeth to the law.”

Worcester Telegram: Making government more ‘open’

“Changes proposed to toughen the penalties for violating the state’s Open Meeting Law could leave public officials facing stiff fines,” Worcester Telegram & Gazette reporter Gerard F. Russell writes about the MNPA’s bills. “Proponents say the changes would put teeth into the Open Meeting Law. Critics say the legislation would chill the desire of citizens to seek elective office or, for that matter, volunteer on government boards and commissions.”

Read full text (subscription required).

Cape Cod Times wins access to sheriff’s records

The Supreme Judicial Court yesterday ruled that Barnstable County Sheriff James Cummings must provide to the Cape Cod Times the identities of his reserve deputy sheriffs, whose names he has concealed for two years.

The SJC said that the names are public records under G.L. c. 66, s. 10, and must be made available for examination and inspection.

The sheriff had contended that the records were private because the reserve deputies have no law enforcement duties and also that the records belonged to the private Barnstable County Sheriffs Association.

In affirming libel award, SJC strikes blow to protection of sources

The Supreme Judicial Court yesterday issued its decision in Ayash v. Dana-Farber Cancer Institute, and the outcome was a blow to the news media. The SJC upheld the trial judge’s entry of default judgment against the Boston Globe because of the Globe’s refusal to reveal the identities of confidential sources. Based on that default judgment, a jury awarded damages against the Globe of $2.1 million — $300,000 for economic damages and $1.8 million for emotional distress – which the SJC also upheld.

The lawsuit, in which the MNPA participated as amicus, followed from the discovery that two patients in an experimental breast cancer treatment study at Dana-Farber had mistakenly been given an overdose of a toxic chemotherapy drug. One of the patients, Globe health columnist Betsy A. Lehman, died. The plaintiff, Dr. Lois J. Ayash, an investigator in the study, sued Dana-Farmer, Dr. David M. Livingston, the Boston Globe and Globe reporter Richard A. Knox. She accused the Globe of libel and defamation, and sued Knox for intentional interference with contractual relations and for intentional or negligent infliction of emotional distress.

During discovery, Ayash sought to compel the Globe to reveal the identities of its sources. Concluding that the sources’ identities were central to the plaintiff’s claims, the judge ordered their disclosure. When the Globe continued to protect their identities, the judge imposed a series of escalating fines. After an interim appeal and remand, Ayash again sought to compel the Globe to disclose its sources. When the Globe continued to refuse, Ayash asked for sanctions. As a sanction, the judge ordered that judgments of liability enter in favor of Ayash against the Globe and Knox. Because his earlier monetary sanctions had not succeeded in securing the Globe’s compliance, the judge reasoned, the alternative sanction of default judgment was warranted. With liability determined by default, the case was submitted to a jury for assessment of damages. The jury came back with an award against the Globe of $2.1 million.

On appeal, the SJC concluded that the judge had not abused his discretion in entering the default judgment.

“At the time of the judge’s ruling, the overdose incidents had occurred over six years previously. There is nothing in the record to suggest that Knox continued to receive or collect information pertaining to the overdoses from these sources that would justify the continued concealment of their identities. The judge concluded that their identities, and information that they potentially could reveal, bore directly on the plaintiff’s claims against Knox and Dana-Farber. …

“Over a period of years, the judge had ordered the Globe defendants to comply with the plaintiff’s requests for discovery of this information, to no avail. The Globe defendants made a deliberate choice to protect Knox’s sources and to forgo their (potentially meritorious) defenses to the claims asserted against them rather than obey the judge’s orders. The judge was not trying to punish the Globe defendants. He clearly felt that he had no alternative method of enabling the plaintiff to obtain the information she needed, and he left open to the Globe the option to remove the default by complying. The question for our review is whether the judge’s order constituted an abuse of the “broad measure of discretion” afforded him. See Sinnott v. Boston Retirement Bd., 402 Mass. 581, 585, cert. denied, 488 U.S. 980 (1988). We conclude that it did not.”

Having affirmed the entry of default judgment against the Globe, the SJC turned to the jury’s award of damages.

“A plaintiff in a successful defamation case is entitled only to fair compensation for actual damages, including emotional distress and harm to reputation (and any special damages which have been pleaded and proved). … Although the damages awarded the plaintiff for the defaulted claims against the Globe defendants may appear high, they were based on evidence that the Globe articles impugning the plaintiff affected her career and caused her a great deal of emotional and psychological anguish. … The judge found no basis on which to overturn the awards as excessive, and neither do we.”

MNPA files bill to toughen open meeting law

In a bid to encourage public officials’ compliance with the state’s open meeting laws, the Massachusetts Newspaper Publishers Association has filed legislation that would toughen the penalties for violators and award court costs and attorneys’ fees to individuals who bring enforcement actions.

Sponsored by Rep. Arthur Broadhurst (D-Methuen), the bill would impose civil fines of $1,000 on any government body that violates the law and $500 on each government official who violates the law. Officials who “knowingly and intentionally” violate the law would be guilty of a criminal misdemeanor punishable by a fine of up to $1,000 for a first offense and up to $2,500 for subsequent offenses.

If enacted, the bill would also make government entities liable for the attorneys’ fees and court costs of individuals who sue to enforce the open meeting laws. Plaintiffs would be entitled to recover their costs and attorneys’ fees even if the entity corrects its violation after the lawsuit is filed, if the plaintiff, before filing suit, had requested in writing that the meeting be opened and the entity had refused.

Existing Massachusetts law allows a fine of up to $1,000 against a local government entity that violates the open meeting law, but not against state government entities. It has no civil or criminal penalties for individual state or local officials who violate the law. The law allows three or more registered voters to file lawsuits to enforce its provisions, but it does not allow them to recover their costs or attorneys’ fees.

In October, the MNPA concluded a 50-state survey of opening meeting law enforcement provisions, finding that Massachusetts was among the most lenient of any state in allowing government officials to violate the law without fear of consequences.

Among the findings of the MNPA’s survey:

  • Civil penalties. Forty states authorize some sort of penalty – either civil or criminal or both – for violations of their open meeting laws. Of these, 23 expressly authorize civil penalties. Although Massachusetts law authorizes penalties against local – but not state – government bodies, many states go further, imposing civil penalties directly against the government officials who violate the law.
  • Criminal sanctions. Twenty-one states make it a misdemeanor criminal offense for a public official to violate the open meetings law. These states provide fines for a first offense of as much as $1,500. Some states also include imprisonment as a potential sanction, in some cases for up to one year. States often increase the penalties for repeat offenders.
  • Voiding. The majority of states give their courts discretion to declare void any action taken in violation of the law. Some states take away the discretion, requiring that actions taken in violation of the law be considered null and void as a matter of law.
  • Private right of action. While most laws provide for enforcement by the state attorney general or local district attorney, many also give private individuals the right to sue to enforce the law. In Massachusetts, the law requires at least three registered voters to file such a suit. Other states require only one plaintiff. While some require that the plaintiff be a citizen, a taxpayer or someone aggrieved by the violation, most allow any person to file. Many states further require that courts hear and decide these cases within strict timetables.
  • Attorneys’ fees and costs. Without a provision for recovery of costs and attorneys’ fees, private individuals are less likely to seek enforcement of the law, even if the law gives them the right. Forty states that provide a private right of action also allow the prevailing plaintiff to recover costs, and 37 authorize attorneys’ fees. In most cases, these are to be paid by the government entity, but some states also require payment by officials who intentionally violate the law.

The bill has not yet been assigned a number. If you would like more information about the bill, please feel free to contact MNPA Executive Director Robert Ambrogi.

MNPA elects officers for 2005-2006

At its annual meeting Dec. 1, the Massachusetts Newspaper Publishers Association elected a new slate of officers. They are:

  • President: Kay Berenson, Publisher, Greenfield Recorder
  • 1st Vice President: James Plugh, Vice Chairman, Enterprise NewsMedia
  • 2nd Vice President: Larry McDermott, Publisher, Springfield Republican
  • Treasurer: Martin Langeveld, Publisher, North Adams Transcript
  • Secretary: Bruce Bennett, Publisher, Worcester Telegram & Gazette

They begin their two-year terms Jan. 1.