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Commonwealth v. Chism

Supreme Judicial Court of Massachusetts, Suffolk

January 4, 2017

PHILIP CHISM & others.[1]

          Heard: September 7, 2016.

         Impoundment. Fair Trial. Evidence, Videotape. Public Records. Constitutional Law, Impoundment order, Fair trial. Practice, Criminal, Impoundment order, Motion to suppress, Record, Fair trial. Uniform Rules on Impoundment Procedure. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 6, 2015.

         The case was heard by Duffly, J.

          Jonathan M. Albano (Emma D. Hall with him) for Boston Globe Media Partners, LLC.

          Patrick Levin, Committee for Public Counsel Services, for the defendant.

          Zachary C. Kleinsasser, for Eagle Tribune Publishing Company, Inc., was present but did not argue.

          Present: Gants, C.J., Botsford, Hines, Gaziano, & Budd, JJ.

          GANTS, C.J.

         The issue on appeal is whether a Superior Court judge committed an error of law or abused his discretion in denying a defendant's motion to impound a video recording and transcript of a police interview with the defendant that was the subject of a motion to suppress and that was subsequently suppressed. We conclude that the judge applied the correct legal standard in deciding that motion. We also conclude that, where the judge considered both the presumption of public access to judicial records and the defendant's right to a trial decided by a fair and impartial jury, and where he subsequently forbade the duplication of the video recording and transcript, the judge did not abuse his discretion in denying the motion.


         In the early evening of October 22, 2013, the defendant's mother informed the Danvers police department that the defendant, who was fourteen years old at the time, was missing. Shortly after midnight on October 23, a Danvers police officer located the defendant walking on a road in Topsfield and transported him to the Topsfield police station, where the backpack he had been carrying was inventoried and he was briefly questioned by the police. The defendant was then transported to the Danvers police station, where, in the presence of his mother, he was interviewed at approximately 2:30 A.M. by a State trooper and a Danvers police sergeant. The entire interview was video recorded. During this interview, the defendant admitted that he had killed Colleen Ritzer (victim), a teacher at Danvers High School, and described the killing and the removal of her body from the school bathroom where she was killed.

         A grand jury returned indictments in November, 2013, charging the defendant, among other crimes, with murder in the first degree. In December, 2014, the defendant filed a motion to suppress the statements he made at the Topsfield and Danvers police stations, claiming, among other grounds, that the defendant did not knowingly and intelligently waive the Miranda rights and that the statements were not made voluntarily. On January 5, 2015, the defendant filed a motion to impound "the contents of the videotaped interrogation of the juvenile and the transcript of that interview, should either or both be entered into evidence as exhibits in the course of the hearing on the motion to suppress." The third-party interveners, Boston Globe Media Partners, LLC (publisher of the Boston Globe), and Eagle Tribune Publishing Company (publisher of the Salem News and the Eagle Tribune), opposed the motion to impound.

         After two of the four days of hearings on the motion to suppress, the judge heard argument on the motion to impound on January 20 and 21, 2015. At this time, the videotape recording of the defendant's interview at the Danvers police station had been admitted in evidence at the suppression hearing and the transcript of that interview had been marked for identification, but the recording had not been played in open court and neither the recording nor the transcript had been made publicly available. The judge orally denied the motion to impound from the bench, and issued a written memorandum of decision and order on January 23, 2015.

         The judge recognized that the exhibits the defendant moved to impound, having been entered in evidence at the suppression hearing, are judicial records. Quoting Commonwealth v. George W. Prescott Publ. Co., 463 Mass. 258, 262 (2012), and The Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004), he noted that judicial records "are presumptively available to the public" under the "common-law right of access to judicial records." The judge declared that the public's right to understand his decision on the defendant's motion to suppress statements, a decision he had not yet made, "is of constitutional dimension." Because the voluntariness of the statements was at issue and the defendant's statements "are probative concerning the issue of voluntariness, " the judge found that his decision "will inevitably involve an in-depth discussion of the statements the defendant seeks to suppress."[2]The judge declared:

"[I]f the motion to impound were allowed, the court would be left with two unsatisfactory options: the court could hear argument on the important issue of whether the Commonwealth has met its burden of proving voluntariness beyond a reasonable doubt at side-bar and impound the record of that portion of the argument; alternatively, the court would be forced to speak in such cryptic terms that it would impair a robust discussion and leave the public distrustful of the process."

         The judge also predicted that, regardless of his ruling on the motion to suppress (and, implicitly, his ruling on the motion to impound), the substance of the defendant's recorded statements during the ...

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