Heard: September 7, 2016.
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.
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
Zachary C. Kleinsasser, for Eagle Tribune Publishing Company,
Inc., was present but did not argue.
Present: Gants, C.J., Botsford, Hines, Gaziano, & Budd,
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.
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.
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.
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.
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."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."
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 ...