Heard: October 4, 2016.
found and returned in the Superior Court Department on June
the entry of a nolle prosequi, a petition to seal the record,
filed on October 7, 2014, was heard by Kathe M. Tuttman, J.
Carney, Jr., for the defendant.
Michael Charles, Assistant District Attorney, for the
Present: Cypher, Cohen, & Green, JJ.
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,
vacate the order and remand for reconsideration.
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; 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."
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) ] .  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
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.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.
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 ...