NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Barnes, 461 Mass. 644 (2012)

CONTRIBUTING EDITOR: ALLISON MCNULTY I. Procedural History

In Commonwealth v. Barnes, the Massachusetts Supreme Judicial Court (“SJC”) considered three petitions for relief, challenging one or more orders of a judge in the Quincy District Court relating to the “OpenCourt” project.1 II. Facts The OpenCourt project was developed by the National Public Radio station in Boston. Over the Internet, OpenCourt streams video and audio recordings of proceedings in the first session of the Quincy District Court. The OpenCourt project was approved by the SJC and is governed by Rule 1.19 of the Rules of the Supreme Judicial Court. In the first petition, the Commonwealth appealed from a judge’s order permitting OpenCourt to post video and audio recordings of a criminal dangerousness hearing. During the hearing, the judge permitted OpenCourt to record, but ordered that there be no mention of the minor victim’s name. Defense counsel accidentally mentioned the victim’s name three times. The Commonwealth then sought an order forbidding the video from being archived. The second petition was brought by OpenCourt and it sought to challenge a judge’s order which required OpenCourt to redact an alleged victim’s name from a recording and to stay public access to the recording. In the third petition, Charles Diorio—a criminal defendant—appealed from orders allowing the broadcasting of his arraignment and a motion hearing.2

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Commonwealth v. Barnes, 461 Mass. 644, 645 (2012). Id. at 645-646, 654-655.

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III. Issues Presented 1. Whether restrictions on OpenCourt’s ability to publish existing audio and video recordings were prior restraints in violation of the First Amendment. 2. Whether removing a recording with a minor victim’s name from OpenCourt’s website is necessary to protect a compelling government interest and is the least restrictive reasonable method to do so. 3. Whether the streaming of a criminal defendant’s arraignment and motion hearing violates that defendant’s right to a fair trial in another pending case and effective assistance of counsel. IV. Holdings and Reasoning 1. The SJC held that restrictions on OpenCourt’s ability to publish existing audio and video recordings constituted prior restraints in violation of the First Amendment. The court explained that a prior restraint on the freedom of speech and press is only allowed if “justified by a compelling State interest to protect against a serious and identified threat of harm.”3 The Commonwealth and Diorio argued that because the OpenCourt project only exists due to the cooperation of the Quincy District Court, all of its recordings should be deemed court documents. This would mean that the recordings, like all other court documents, can be redacted or impounded for good cause without implicating the First Amendment.4 The court rejected this argument and found the Quincy District Court’s cooperation with OpenCourt was not extensive enough to allow a finding that the recordings were court documents; OpenCourt employs their own production staff and maintains the recordings on its private website.5 According to Rule 1:19 of the Rules of the Supreme Judicial Court, a judge shall permit broadcasting of court room proceedings but may limit coverage “if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence.”6 The court found the ability to limit coverage under Rule 1:19 only applies to the judge’s initial decision to allow the session to be recorded.7 Once that decision has been made, the ability of the judge to control what is done with the recording is limited by the prior restraint doctrine; it must be determined that any restraint imposed is “necessary to protect a compelling government interest and is the least restrictive reasonable

3 Id. at 652, quoting George W. Prescott Publ. Co. v. Stoughton Div. of the Dist. Court Dep’t of the Trial Court, 428 Mass. 309, 311 (1998). 4 5 6 7

Id. at 652-653. Id. at 653. Id. at 647, quoting S.J.C. Rule 1:19, 461 Mass. 1301, 1301-1302 (2012). Commonwealth v. Barnes, supra at 654, quoting S.J.C. Rule 1:19, 461 Mass. at 1302.

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Commonwealth v. Barnes

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method to do so.”8 2. In the first petition, the Commonwealth argued that “protecting the privacy of minor sexual assault victims is a compelling State interest that justifies a judicial order forbidding posting the recording on OpenCourt’s Web site.”9 The SJC acknowledged that the Supreme Court has found this to be a compelling state interest but also notes that the measures necessary to protect that interest are supposed to be decided on a case-by-case basis, “considering factors such as the ‘minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.’”10 The Commonwealth failed to provide any evidence that psychological harm would result if the recording was not removed from OpenCourt’s website.11 Additionally, the Commonwealth presented no factors or characteristics relating to this particular minor and failed to show that removing the recording was the least restrictive means of protecting the minor victim.12 Therefore, the SJC held that the judge could not order the recording removed because the Commonwealth failed to pass the prior restraint test—removing the recording was not necessary to protect a compelling government interest, nor was it the least restrictive reasonable method to do so.13 3. The SJC held that the streaming of Diorio’s arraignment and motion hearing did not violate his right to a fair trial in another pending case.14 Diorio argued that the streaming of his arraignment and motion hearing— in which he was shackled—would create a substantial likelihood of an unfair trial in his other pending case because if jurors saw the video, they would be prejudiced against him.15 The SJC rejected this argument and found there “was no substantial likelihood of harm to Diorio’s fair trial right, because the case against Diorio in which identification was at issue took place in another county, and many alternatives to protect the right existed, including juror voir dire and cross-examination during any subsequent trial on those charges.”16 Additionally, there was not a substantial likelihood of harm to Diorio’s right to counsel.17 Diorio argued that the microphones used by OpenCourt “can pick up court room whispers, preventing him from speaking

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Id. Id. at 655. 10 Id. at 656, quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-608 (1982). 11 Id. 12 Id. 13 Commonwealth v. Barnes, supra at 656-657. 14 Id. at 659-660. 15 Id. at 659. 16 Id. at 659-660. 17 Id. at 660.

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confidentially with his attorney during the proceeding.”18 The SJC rejected this argument because the microphones used by OpenCourt are the same microphones used by the Quincy District Court.19 Therefore, Diorio’s right to counsel was not violated because the “defendants and their counsel must take exactly the same precautions to ensure that their conversations are not recorded as they would if OpenCourt were not present in the court room.”20

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Id. at 559. Commonwealth v. Barnes, supra at 660. Id.