Kennedy v. Justice of Dist. Court of Dukes County

• Decision Date: 30 October 1969
• Citation: 356 Mass. 367,252 N.E.2d 201
• Parties: . (and two companion cases 1 ). Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 201

252 N.E.2d 201

356 Mass. 367

Edward M. KENNEDY v. JUSTICE OF THE DISTRICT COURT OF DUKES COUNTY. (and two companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 8, 1969.

Decided Oct. 30, 1969.

Edward B. Hanify, Boston (Robert G. Clark, Jr., Brockton, John M. Harrington, Jr., Thomas G. Dignan, Jr., Robert F Hayes and John S. Hopkins, III, Boston, with him), for Edward M. Kennedy.

Paul J. Redmond, Boston (Daniel J. Daley, Boston, with him), for John B. Crimmins and others.

Joseph P. Donahue, Jr., Lowell (George W. Anthes, Springfield, with him), for Joseph Gargan.

Joseph J. Hurley, Asst. Atty. Gen. (Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, James P. Kiernan, Ruth I. Abrams and William E. Searson, III, Asst. Attys. Gen., with him), for the Justice of the District Court of Dukes County.

Henry P. Monaghan, Boston, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.

BY THE COURT.

These cases, originally brought in the county court for Suffolk County, are each entitled, 'Petition for Writ of Certiorari and Related Relief Pursuant to G.L. c. 211, § 3.' They seek review of certain acts of the respondent relating to an inquest at which he was to preside. The cases involve questions not covered by our decisions. To expedite their consideration, the single justice properly reserved and reported the cases 'for such decree as may be appropriate.' The record consists of the consolidated petitions, the respondent's return, the transcript of proceedings in the county court, the single justice's order of September 2, 1969, which enjoined the respondent from proceeding with the inquest pending a determination by the full court, and the statement of agreed facts.

We summarize the agreed facts. On or about July 18, 1969, Miss Mary Jo Kopechne of the District of Columbia, formerly a secretary in Washington to the brother of the petitioner Kennedy, died after the automobile in which she was riding and which was operated by the petitioner Kennedy went off 'Dyke Bridge' on Chappaquiddick Island in the County of Dukes County. Each of the petitioners and the deceased were in attendance at a social event which took place on Chappaquiddick Island on the evening of July 18.

On July 25 the petitioner Kennedy before the respondent, the justice of the District Court of Dukes County, pleaded guilty to, and was sentenced, upon a complaint under G.L. c. 90, § 24(2)(a), commonly known as leaving the scene of an accident after causing personal injury.

Later that day the petitioner Kennedy requested and received from the three major Boston television stations and their associated radio stations, the opportunity to address the voters of the Commonwealth. The national television and radio networks requested and received from this petitioner and from those Boston television and radio stations, permission to tie in and broadcast his statement, which was later broadcast nationally by television and radio. The statement, which is set forth verbatim in the agreed facts, contains some explanation of his conduct. He in part stated: 'These events and the publicity and innuendo and whispers which have surrounded them, and my admission of guilt this morning, raises the question in my mind of whether my standing among the people of my State has been so impaired that I should resign my seat in the United States Senate.' He concluded by appealing to the people of Massachusetts for their advice and opinion to enable him to make a decision on that question.

On August 7 the district attorney of the Southern District by letter to the respondent exercised his authority under G.L. c. 38, § 8 (as amended through St.1939, c. 30), ² to require an inquest in the death of Miss Kopechne. On August 8 the respondent designated September 3 as the date for the inquest and announced in open court: 'The statutes permit exclusion of all those not required to attend. I have decided to exercise some discretion in that regard and to exclude all except legitimate and accredited members of the press, television, radio and other news media.' Subpoenas were served upon fifteen witnesses, and other subpoenas were issued by the clerk, but not served, on the petitioners in one of the two companion cases. Thereafter the clerk of the District Court drew up and posted a long list of representatives of news media who would be permitted to attend the inquest. The court room, the only one on the island of Martha's Vineyard, has 160 seats, 120 of which are outside the bar enclosure. Because the petitioner Kennedy is a prominent political figure, all events relating to the accident, including the scheduled inquest, have been given extensive coverage by the local, national, and international news media.

The petitioner Kennedy, describing himself as 'the operator of the motor vehicle,' and all the other petitioners, describing themselves as 'prospective witnesses,' filed motions in substance that they 'be permitted the right to be represented by counsel * * * and to have counsel present during the entire proceeding, that * * * counsel be permitted to examine and cross-examine all witnesses and to seek rulings from the court with respect to the relevancy * * * of all evidence, to present evidence and to have the power to compel attendance of witnesses * * *.' There were hearings before the respondent on August 27 and 28. These motions were denied on August 28, the judge stating: 'I am not satisfied that the United States Supreme Court would read the Due Process Clause into our inquest procedure. That is for the United States Supreme Court to say and not for me. * * * Witnesses will come into the courtroom singly, may be represented during their appearance in the courtroom by counsel for the sole purpose of advice on constitutional rights against self-incrimination and, where appropriate, (on) privileged communications, and for no other purpose and counsel for that witness will leave the courtroom when the witness leaves the courtroom.'

During the hearings the respondent twice declared that it was essential that the petitioner Kennedy, the only eyewitness, be present at the inquest.

At the August 27 hearing, in response to a question by counsel for some petitioners as to 'what the ground rules are going to be,' the judge had said 'That the scope of the proceedings will be such as will enable me to submit the report required' by G.L. c. 38, § 12. 'That is, that I must report in writing when, where and by what means the person met her death, her name, if known, and all material circumstances attending her death and the name, if known, of any person whose unlawful act or negligence appears to have contributed thereto. I will go no farther than saying that will be the scope of the inquest. As to physical aspects, I can tell you that there will be no microphones, no cameras, no listening or recording devices allowed in the courtroom. * * * The District Attorney has an option to examine and call witnesses, but as I see it, the primary responsibility rests with the judge who may, and in my case would, call any other witnesses, as the evidence develops, he thinks might have something to add to the truth.' On the following day at the hearing the judge repeated that he would call 'everybody who can be helpful in reaching the required decision.'

The petitions for writs of certiorari allege that the rulings of the respondent deprive the petitioners of rights secured to them by the Sixth Amendment to the Constitution of the United States as applied to the States by the Fourteenth Amendment in that (1) the order of August 28 operates to deprive them of the rights to be represented by counsel, to confront and cross-examine witnesses, to present evidence and to compel the attendance of witnesses in 'a public and formal judicial proceeding which constitutes the exercise of an accusatory function'; and (2) the ruling of August 8 'sanctions publicity in connection with a hearing of a preliminary nature so widespread as to taint with irremediable prejudice any subsequent judicial proceedings which may arise out of the accident.' The petitions allege that the rulings have caused substantial injury and manifest injustice to the petitioners.

In this Commonwealth over a century ago inquests in violent deaths were conducted by coroners with a jury of six. Rev.Sts. (1836) c. 140, §§ 1, 2. The coroner had power to summon and swear witnesses (§§ 5, 6), whose testimony was reduced to writing by the coroner (§ 7). The jury delivered to the coroner their inquisition in which they were to find when, how, and by what means the deceased person came to his death and all the material circumstances. If it appeared that he was murdered, the jurors were to state who was guilty (§ 8). The coroner had power to bind over witnesses to the appropriate court (§ 9). If any person charged by the inquest with having committed the offence was not in custody, the coroner had power to issue process for his apprehension (§ 10).

By St.1850, c. 133, § 1, it was provided that the coroner with the consent of a majority of the jury 'may order that a secret inquisition be taken.' In such case he might at his discretion exclude all persons other than those required to be present, and during the examination of a witness might exclude all the other witnesses, and direct that they be kept separate. By St. 1877, c. 200, the office of coroner was abolished (§ 1), and that of medical examiner was created (§ 2). The inquest was to be conducted by the court or a trial justice (§ 10), who was to make the report (§ 12). He had power in certain cases to bind over witnesses 'as in criminal prosecutions' to appear and testify at the court in which an indictment might be found (§ 13), and to issue process for arrest of persons not in custody (§ 14).

The subject of inquests is now covered by G.L....