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Commonwealth v. Hefner

Superior Court of Massachusetts, Suffolk

August 9, 2018

COMMONWEALTH
v.
Bryon HEFNER

          MEMORANDUM AND ORDER ON COMMONWEALTH’S MOTION FOR RECORDS PURSUANT TO MASS.R.CRIM.P. 17(a)(2)

          William F. Sullivan, Justice of the Superior Court

          This case is before the court on the Commonwealth’s motion for the production of material generated in connection with the Massachusetts Senate investigation of former Senate President Stanley C. Rosenberg ("Rosenberg"). For the reasons set forth below, the Commonwealth’s motion is DENIED.

         BACKGROUND

         In December 2017, Massachusetts State Police and Boston Police opened a criminal investigation into allegations that the defendant, Bryon Hefner ("Hefner") sexually assaulted four men over a period of several years. Around the same time, the Massachusetts Senate initiated an investigation into the conduct of Hefner’s spouse, Rosenberg, to determine "whether he violated the rules of the Senate." See Senate Order No. 2228 (2017). On December 18, 2017, the Senate retained Hogan Lovells, LLP ("Hogan Lovells") as Special Investigator.

         The Hogan Lovells investigative team reviewed business records provided by the Senate to identify forty-five people and interview them over the course of three months. See Report of Special Investigation in the Matter of Massachusetts Senate President Stanley Rosenberg at 1 (April 25, 2018) (hereinafter, "Senate Report"). Hogan Lovells did not create formal, written statements for any of the persons it interviewed. Instead, the attorneys present during the interviews took notes that were subsequently incorporated into an interview memorandum.

         Two interviewees nonetheless submitted informal statements to Hogan Lovells. "Person A" sent one of the Hogan Lovells attorneys an email to explain and provide context for certain text message exchanges Person A had with Hefner. In his email, Person A claimed to have received a picture from Hefner of Hefner’s penis.[1] "Person B" reported that Hefner had grabbed his genitals for an extended period of time. Person B provided Hogan Lovells contemporaneous emails to unnamed coworkers that vaguely alluded to Hefner’s alleged misconduct.

         Throughout the interview process, Hogan Lovells and the Senate assured interviewees that their identities would remain confidential.[2] On January 25, 2018, the Massachusetts Senate Committee on Ethics released a statement to update "the public on relevant and important actions with respect" to the investigation of Rosenberg. The statement declared, inter alia, that "[f]rom the outset, the Committee has affirmed and reaffirmed its commitment to protect the identities of all those who provide information to the Special Investigator ... Consistent with that commitment, the Committee has structured the investigation so that it will not learn the identity of any witness or potential witness." The statement also noted that the Committee had unanimously adopted a motion that required Hogan Lovells and the Senate Counsel to "maintain as confidential" and "not disclose to any party ... the identity or identifying information of any victim, witness, subpoena recipient or other person who provides information ... unless the person specifically consents to being identified, or disclosure is required by judicial process or procedure."

          On January 30, 2018, the Senate received a grand jury subpoena from the Massachusetts Attorney General seeking the same business records that Hogan Lovells used to conduct its investigation. The Senate fully produced the materials requested.

         On March 29, 2018, a Suffolk County grand jury indicted Hefner on five counts of indecent assault and battery, one count of open and gross lewdness, and four counts of electronic recording or surveillance of an unsuspecting nude or partially nude person.

         On May 2, 2018, the Massachusetts Senate publicaliy released an approximately eighty-page report detailing the results of Hogan Lovells’ investigation. Section III(C)(2) of the Senate Report, entitled Hefner’s Unwanted Sexual Advances and Sexual Assault, includes summaries of anonymous witnesses’ accounts of alleged sexual misconduct by Hefner. Senate Report at 43-45. The Senate Report states that the accounts are anonymous because "each of the witnesses asked not to be identified." Senate Report at 43.

         On July 24, 2018, the Commonwealth filed the present motion pursuant to Mass.R.Crim.P. 17(a)(2) seeking an order directing Hogan Lovells to produce:

1. statements of persons who testified before the grand jury and/or were interviewed by law enforcement in this case, as set forth in a list to be provided under seal to counsel for the Senate and Hogan Lovells;
2. identities and statements of all persons interviewed regarding events described in § III(C)(2) on pages 43-45 of the Senate Report, including Footnote 38 on page 45; and
3. statements of Hogan Lovells agents, excluding attorney work product, regarding interviews with the persons covered ...

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