Com. v. Silva

• Decision Date: 05 April 2007
• Citation: 864 N.E.2d 1,448 Mass. 701
• Parties: COMMONWEALTH v. Manuel SILVA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

864 N.E.2d 1

448 Mass. 701

COMMONWEALTH v. Manuel SILVA.

Supreme Judicial Court of Massachusetts, Bristol.

Argued January 2, 2007.

Decided April 5, 2007.

Anthony C. Savastano, New Bedford, for The Standard Times Publishing Company.

Randall E. Ravitz, Assistant Attorney General, for the Superior Court Department of the Trial Court for the county of Bristol.

Peter J. Caruso & Peter J. Caruso, II, Andover, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

COWIN, J.

In this appeal, the Standard-Times Publishing Company, publisher of the New Bedford Standard-Times newspaper (the Standard-Times), seeks review of an order of a judge in the Superior Court impounding the names and addresses of jurors who served at a murder trial involving alleged gang violence. We conclude that in light of identified and justifiable concerns regarding the jurors' safety, the impoundment order was not an abuse of discretion.¹

Background. The relevant background is set forth in the judge's order. The defendant was charged with murder in the first degree and conspiracy in the shooting death of the victim. At trial the Commonwealth introduced evidence that the defendant and another individual were members of a New Bedford street gang, and that they killed the victim, a member of a rival gang, by firing multiple rounds at him in his automobile in what the judge termed "an indiscriminate act of gang vengeance." One of the Commonwealth's principal witnesses at trial was the defendant's girl friend. Prior to her testimony, she was attacked by an unknown individual who fired shots at her in her automobile, lodging four bullets in the car but leaving her unharmed. During the trial, the judge discharged one of the empanelled jurors, a New Bedford resident who worked near where the events took place, because she "had become so fearful of the circumstances surrounding the case that she could not fairly continue." The jury ultimately returned a verdict of not guilty. Two hours later, police were called to the house of the defendant's mother, which had been sprayed with gunfire by an unknown assailant. At least eleven shots were fired at the home, one grazing a bystander.

Prior to the verdict, a reporter for the Standard-Times filed a motion requesting postverdict access to the names and addresses of the trial jurors. The Standard-Times later filed an "Amended Motion for Jury List" seeking the same information. At a hearing on the motion, counsel for the Standard-Times argued that the newspaper had a right to the information under both the First Amendment to the United States Constitution and the common-law right of access to judicial records. Neither the Commonwealth nor the defendant took a position. The Commonwealth did, however, express reservations about releasing the identities of the jurors, due chiefly to juror safety issues and brought to the judge's attention the shooting that had taken place shortly after the verdict. The judge asked the Commonwealth to provide police reports from that incident and from the shooting involving the defendant's girl friend, of which the judge was already aware.

In a thoughtful memorandum of decision, the judge denied the motion for access to the jury list and ordered the jurors' names and addresses impounded, stating that "[a] genuine concern for the safety of [these] jurors bars any release of identifying data." The judge particularly emphasized the shooting incident immediately after the trial, which, based on its timing and location, he interpreted as retaliation for the jury's verdict of not guilty. The Standard-Times sought review of the order from a single justice of the Appeals Court, arguing that the impoundment of the jury list was both legally erroneous and not supported by sufficient findings.² The single justice reported the case to a panel of the Appeals Court. The Attorney General entered an appearance on behalf of the Superior Court Department of the Trial Court (Superior Court).³ We transferred the matter here on our own motion.

Procedure. As an initial matter, the Superior Court argues that the instant appeal was not properly before the single justice of the Appeals Court. This argument requires us to revisit the question of the proper procedure for nonparties, including members of the media, to obtain access to impounded court documents. See Republican Co. v. Appeals Court, 442 Mass. 218, 227 n. 14, 812 N.E.2d 887 (2004); Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 600-602, 737 N.E.2d 859 (2000); Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 629 nn. 2 & 3, 531 N.E.2d 1261 (1988), cert. denied, 490 U.S. 1066, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1989); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 551, 362 N.E.2d 1189 (1977).

Recently, in the Republican Co. case, we provided guidance on this recurring issue with particular regard to criminal cases:

"Where possible, a nonparty seeking access to material that has been impounded in the course of a criminal proceeding should file a motion to be heard in the proceeding and in the court that issued the order of impoundment. In those circumstances where there is no ongoing proceeding that would allow for the filing of such a motion, a nonparty seeking relief from an order of impoundment may proceed by `bring[ing] a civil action in the court which issued it, joining the clerk of that court in his official capacity and the parties to the action or at least any who obtained or may defend that order.'"

Republican Co. v. Appeals Court, supra at 227 n. 14, 812 N.E.2d 887, quoting Ottaway Newspapers, Inc. v. Appeals Court, supra at 551, 362 N.E.2d 1189. The Republican Co. decision did not, however, explain the proper avenue of appellate review in such cases. A separate civil action brought against the court issuing the impoundment order will "end in a judgment capable of appeal under ordinary rules." Ottaway Newspapers, Inc. v. Appeals Court, supra at 551, 362 N.E.2d 1189. Here, however, where there was an "ongoing proceeding," the Standard-Times properly "file[d] a motion to be heard in the proceeding," Republican Co. v. Appeals Court, supra at 227 n. 14, 812 N.E.2d 887, but it was not clear how to obtain review of the disposition of its motion. The Standard-Times petitioned a single justice of the Appeals Court for review pursuant to G.L. c. 231, § 118, first par. However, this provision applies only to interlocutory orders in civil cases. See Stewart v. Commonwealth, 413 Mass. 664, 666 n. 5, 603 N.E.2d 912 (1992), S.C., 414 Mass. 1006, 608 N.E.2d 1050 (1993). We therefore take the opportunity to clarify the correct procedure for nonparties, including the media, to obtain appellate review of an impoundment order in an ongoing criminal case.

In the past, when describing procedures to be followed regarding impoundment in criminal cases, we have looked to the Uniform Rules on Impoundment Procedure, which, although technically applicable only to civil proceedings, have been considered instructive in criminal cases as well. See Republican Co. v. Appeals Court, supra at 223 n. 8 & 225 n. 11, 812 N.E.2d 887. Indeed, we have stressed that the "[p]ractice regarding orders of impoundment entered in criminal proceedings should hew as closely as possible to the protocol described by the uniform rules." Id. at 227 n. 14, 812 N.E.2d 887. Thus, in the absence of any statute or rule expressly providing a route for appellate review of impoundment orders in criminal cases, we look to the analogous provision of the uniform rules, which provides that "[a]n order impounding or refusing to impound material shall be subject to review by a single justice of an appellate court in accordance with provisions of law and consistent with the procedures established in Rule 1:15 of the Rules of the Supreme Judicial Court."⁴ Rule 12 of the Uniform Rules on Impoundment Procedure (2007). In future cases, appellate review of an impoundment order in an ongoing criminal proceeding should conform to the Uniform Rules on Impoundment Procedure, and should be sought in the first instance before a single justice of the Appeals Court, as was done in the present case.⁵

We impose an additional requirement relevant to motions filed in ongoing criminal cases by nonparties seeking access to impounded documents such as jury lists. While the parties to the underlying action will often have a sufficient interest to litigate such a motion adequately, sometimes, as in the present case, they may take no position. See In re Globe Newspaper Co., 920 F.2d 88, 91 (1st Cir.1990) (where parties to action did not oppose release of jury list, it was helpful to have counsel for trial court to articulate position favoring jury privacy). In a case of this nature, the Attorney General is best suited to represent the interests of the public, including jurors, where the impounded materials may concern jurors.⁶ Accordingly, the Attorney General must receive notice of, and an opportunity to be heard on, any motion filed in any court by a nonparty to obtain access to impounded documents in a criminal case.⁷

Relevant law. We turn to the substance of the Standard-Times's appeal. In Massachusetts, the right of public access⁸ to judicial records is governed by overlapping constitutional, statutory, and common-law rules. There is no statutory right to the names and addresses of members of a jury panel.⁹ Only the list of the entire jury venire, which is not at issue here, is a public record pursuant to G.L. c 234A, § 67.¹⁰ Furthermore, while the questionnaires completed by jurors prior to their service are made confidential by statute, see G.L. c. 234A, §§ 22, 23, those documents are likewise not at issue here.

Massachusetts has long recognized a common-law right of public access to judicial records.¹¹ Republican Co. v. Appeals...