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Commonwealth v. Doe

Appeals Court of Massachusetts, Middlesex

December 28, 2016


          Heard: October 4, 2016.

         Indictment found and returned in the Superior Court Department on June 10, 2010.

         After the entry of a nolle prosequi, a petition to seal the record, filed on October 7, 2014, was heard by Kathe M. Tuttman, J.

          J.W. Carney, Jr., for the defendant.

          Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.

          Present: Cypher, Cohen, & Green, JJ.

          COHEN, J.

         Juan Doe appeals from an order of a judge of the Superior Court denying his petition to seal his criminal record in a case terminated by a nolle prosequi. We infer from the order that, in balancing the interests of the public and the defendant, as required by Commonwealth v. Pon, 469 Mass. 296 (2014), the judge may have relied upon a factor that is inconsistent with Pon's revised standard for discretionary sealing, and may have placed too much importance on another factor that was of limited concern in the circumstances. For those reasons, and for the additional reason that there has been a material change in circumstances since the petition was denied, [2] we vacate the order and remand for reconsideration.


         In June, 2010, Doe was indicted for murder in the first degree in connection with the death of his six month old son. The Commonwealth's theory was that the child had died as a result of abusive head trauma commonly known as shaken baby syndrome;[3] however, while the case was pending, it was learned that Doe's wife and her family had a previously unknown history of collagen vascular disease, a genetic condition that was relevant to determining the child's cause of death. This information was supplied to the prosecution and the medical examiner, who, in August, 2014, revised his ruling on the manner of death from "homicide" to "could not be determined." Shortly thereafter, on September 18, 2014, the Commonwealth filed a nolle prosequi, stating that it could not "meet its burden of proving cause of death beyond a reasonable doubt when the revised ruling is considered in light of all the circumstances of this case."

         On October 7, 2014, Doe filed a petition, pursuant to G. L. c. 276, § 100C, as amended through St. 2010, c. 256, §§ 131, 132, requesting discretionary sealing of the case record because it impaired his ability to obtain employment. The Commonwealth opposed the petition, and after a nonevidentiary hearing, the matter was considered by the judge on affidavits and other written submissions. At the hearing, the Commonwealth emphasized that its argument was "not that [the record] should never be sealed, but that this is not the right time." On January 20, 2015, the judge issued a marginal order stating: "After non-evidentiary hearing. Denied, for substantially the reasons set forth in the Commonwealth's Opposition and the supporting affidavit of [the assistant district attorney (ADA) ] . [4] See Commonwealth v. Pon, 469 Mass. 296 (2014). This order is without prejudice to the defendant to renew upon a showing of changed circumstances." We reserve additional facts for later discussion in connection with the issues raised.


         We consider whether the judge abused her discretion or committed error of law, using as our touchstone the Supreme Judicial Court decision in Pon, supra. In Pon, the court concluded that "the records of closed criminal cases resulting in . . . dispositions [of dismissal or entry of a nolle prosequi] 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." Id. at 311. The court therefore replaced the stringent standard set forth in Commonwealth v. Doe, 420 Mass. 142, 149-152 (1995), with a new standard more in keeping with the legislative policy reflected in the 2010 revision of the criminal offender record information (CORI) statutory scheme.[5]That policy is to "provid[e] the public, and particularly employers and housing providers, with access to certain criminal records in order to make sound decisions while also enabling the sealing of criminal records where so doing would not present public safety concerns." Pon, 469 Mass. at 303.

         "Under G. L. c. 276, § 100C, second par., an individual may petition for sealing of a criminal case ending in a dismissal or entry of a nolle prosequi, as early as the time of the disposition or at any point thereafter." Pon, supra at 300-301. Such relief is warranted if "it appears to the court that substantial justice would best be served." Id. at 301, quoting from G. L. c. 276, § 100C. As reinterpreted in Pon, the "substantial justice" standard no longer requires a defendant to make a "specific showing 'that sealing [is] necessary to effectuate a compelling governmental interest, '" Id. at 302, quoting from Globe Newspaper Co. v.Pokaski, 868 F.2d 497, 511 (1st Cir. 1989); the standard is met if "good cause justifies the overriding of the general principle of publicity, " Pon, supra at 313. In assessing whether a defendant has established good cause, the judge must balance the public interests at stake against the interests favoring privacy. Id ...

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