Com. v. Doe

• Decision Date: 19 April 1995
• Citation: 420 Mass. 142,648 N.E.2d 1255
• Parties: COMMONWEALTH v. John DOE. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1255

648 N.E.2d 1255

420 Mass. 142

COMMONWEALTH v. John DOE. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 8, 1995.

Decided April 19, 1995.

D. Lloyd MacDonald (Eva M. Ciko with him), Boston, for defendant.

Ralph C. Martin, II, Dist. Atty., & Jill P. Furman, Asst. Dist. Atty., for Com., submitted a brief.

Scott Harshbarger, Atty. Gen., & William J. Duensing, Asst. Atty. Gen., for Atty. Gen., amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

GREANEY, Justice.

A judge in the District Court sought to report to the Appeals Court pursuant to Mass.R.Crim.P. 34, 378 Mass. 905 (1979), five questions concerning a petition (which the judge had denied) brought by the defendant to seal the record in criminal cases pursuant to the provisions of G.L. c. 276, § 100C, second par. (1992 ed.). ² The charges against the defendant had been resolved by the prosecution's entry of a nolle prosequi. We allowed the defendant's application for direct appellate review. We conclude that the judge lacked authority to make a report and order the report discharged. The issues raised by the defendant's petition to seal, however, are important, will arise again, and have general application to the work of the trial court. Accordingly, we shall exercise our discretion to comment on the issues in order to promote the proper administration of justice. See Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943).

The background of the case is set forth in the judge's report as follows. On February 1, 1993, the defendant was arraigned in the Roxbury District Court on a complaint charging rape and three other serious sexual offenses. On February 16, 1993, the office of the district attorney for the Suffolk District entered a nolle prosequi as to all the charges. See Mass.R.Crim.P. 16(a), 378 Mass. 885 (1979). The reason given for terminating the prosecution of the defendant was "that, upon review of the evidence currently available, it appears that the ends of justice would not be served by the prosecution of this case." On May 6, 1993, the defendant filed a petition pursuant to G.L. c. 276, § 100C, second par.; see note 1, supra; accompanied by his affidavit and an affidavit of his counsel, to seal the record of the case.

The defendant's affidavit indicates that he was then an eighteen year old Boston University freshman who had never been arrested or involved with the criminal justice system until February 1, 1993, when he was arrested and charged with rape and the other offenses following an incident in which he had sexual intercourse with a female student who also attended Boston University. The defendant maintained at the time of his arrest, and asserts in his affidavit, that the intercourse was consensual. His affidavit adds that there were witnesses to the incident ("both men and women"), and that "[w]hen the District Attorney--at my lawyer's request--interviewed the witnesses (including the girl who made the accusations), it was determined that the alleged victim's story was unsubstantiated." The defendant further states in his affidavit that Boston University investigated the incident and decided "to take no action against me on account of the evidence ... [and] at the conclusion of the University's investigation, the person who had originally accused me, herself, chose not to pursue the allegations at the University or elsewhere."

The defendant's affidavit also contains information supportive of his good character, his high academic standing, and his ambition to secure employment in the business field while in school, to work toward a master's degree in business administration, and someday to own his own business. The defendant also expresses concern about the future consequences of his arrest record. He states:

"My greatest fear relating to the record of my arrest is that if it remains unsealed it will prejudice my opportunity to secure employment and pursue further educational degrees. In particular, the publicly accessible record would hurt me if I were to try to work for the government or otherwise be involved in sensitive positions requiring a security clearance or other special standards of conduct and trustworthiness. To be prevented from or hindered in being able to do that seems unjust to me because both the District Attorney and the University concluded that the allegations underlying the rape charge against me were unsubstantiated."

The affidavit of defense counsel indicates that the original prosecutor in the case, when informed of the defendant's petition to seal, stated that the office of the district attorney had no objection to its allowance. This view was reiterated on July 1, 1993, by the prosecutor who was the only person (other than defense counsel) to appear at the hearing on the petition and express an opinion. (Notice of the hearing had been previously given to the Commissioner of Probation [commissioner], published in Massachusetts Lawyers Weekly and posted in the clerk-magistrate's office of the Roxbury District Court). On August 18, 1993, the judge denied the petition to seal and made his report. As a basis for the denial, the judge stated that the defendant "has not demonstrated anything more than a potential for harm to his reputation, employment prospects or privacy, and the mere assertion of a general interest in privacy and reputation is not sufficient to overcome the presumption of openness [of criminal records] under the First Amendment."

1. As has been indicated, all the relevant events of this case (from the filing of the complaint to the filing and disposition of the petition to seal) occurred in 1993. During that time, rule 34, allowed only for reports of cases in the Superior Court and in the jury sessions of the District Court. See Gordon v. Fay, 382 Mass. 64, 66 & n. 4, 413 N.E.2d 1094 (1980). The defendant's case was in a nonjury session of the Roxbury District Court. The judge could not report the case under rule 34, and the report is not properly before us. ³ See Doe v. Doe, 378 Mass. 202, 203, 390 N.E.2d 730 (1979).

2. The judge prepared a thorough report which carefully examined the current state of the law with respect to the sealing provision contained in G.L. c. 276, § 100C, second par. He properly recognized that important issues exist with regard to the proper application and scope of this sealing provision. As has been indicated, we deem it appropriate to comment on the issues. We see no need specifically to respond to each of the five questions posed in the report, choosing instead to discuss the issues in a general way.

Section 100C of G.L. c. 276 contains two provisions. The first paragraph directs the commissioner and other court officers to seal the "records" of criminal cases in which a conviction has not been obtained because the defendant was found not guilty, the grand jury failed to indict, or the judge made a finding of no probable cause. ⁴ Sealing under this provision was to occur automatically on the completion of a criminal case ending in one of the enumerated dispositions regardless of the circumstances surrounding a particular case. The second paragraph of § 100C, which is at issue in this case, applies only to those criminal cases in which there has been no prosecution or the court has entered a dismissal. See note 1, supra. In contrast to the first paragraph, the second paragraph authorizes the sealing of a defendant's records only when "it appears to the court that substantial justice would best be served." The term "substantial justice" is not defined in the statute.

The sealing records statutes, G.L. c. 276, §§ 100A-100C (1992 ed.), seek to shield from public view the facts surrounding certain criminal cases, see Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 479, 373 N.E.2d 1128 (1978), in order "to protect individuals from unnecessary and overbroad dissemination of criminal record information." Commonwealth v. Vickey, 381 Mass. 762, 765, 412 N.E.2d 877 (1980). The statute's protection "ensur[es] the confidentiality of a person's record." Commonwealth v. Balboni, 419 Mass. 42, 45, 642 N.E.2d 576 (1994).

This interest in confidentiality has the potential for conflicting with the right of access to records submitted in connection with criminal proceedings guaranteed by the First Amendment to the United States Constitution. See In re Globe Newspaper Co., 729 F.2d 47, 52 (1st Cir.1984). In Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir.1989), the United States Court of Appeals for the First Circuit considered the constitutionality of § 100C in a lawsuit brought by the Globe Newspaper Company (Boston Globe) claiming that it had a constitutional right of access to certain court records which had been impermissibly burdened by the statutory scheme governing sealing. The case involved two occasions when Boston Globe reporters were denied access to criminal records. On the first occasion, the Boston Globe reporters sought the records to investigate a report that a trial court judge had initially found a police officer guilty of possession of cocaine, but had reversed his finding after being informed that a conviction might cause the officer to lose his job. On the second occasion, the Boston Globe sought access to records for its "spotlight team" in connection with criminal cases in Suffolk County involving sexual offenses committed against juveniles.

The court concluded that, under the First Amendment, the press and the public possessed a constitutional right of access to judicial records which could be overcome only by a showing of a compelling governmental interest, and on terms that represent the least restrictive alternative. Id. at 502-507. The court "agree[d] that preventing the public disclosure of records that defendants do not want released, and that the state is not required to release under the First Amendment, is a...