Mass. Supreme Judicial Court to Hear Archive Appeals

Update #3: The hearing of Commonwealth vs. Barnes (as well as a companion case, Diorio vs. First Justice of the Quincy District Court) will be held before the seven-member Masschusetts Supreme Judicial Court at 9 a.m. on November 8, 2011.


Update #2: On August 4, Massachusetts Supreme Judicial Court Justice Margot Botsford reserved ruling after a single justice hearing, opting to report the matter to the full court. A public hearing before the seven-member Supreme Judicial Court is likely get a November date.


Update: On Friday, July 8, we filed a response memo as well as a supplemental affidavit to the Supreme Judicial Court. A hearing date has also been set at the SJC: August 4th.


We wanted to update you on legal issues that have come up since making our video archives publicly available on June 16th.

For now, we will not be posting the archive of the May 27th dangerousness hearing against Norman Barnes, pending an appeal hearing before a Single Justice of the Supreme Judicial Court (SJC).

The central issue at stake is a First Amendment question of whether the court can order a news organization to redact material that has been presented to the public in open court.

“Blurting” a minor victim’s name

Mr. Barnes is accused of kidnapping a 15-year old girl and forcing her into prostitution. During the hearing to determine if he was too dangerous to be let out on bail (the verdict was yes), his defense attorney Joanna Sandman “blurted” the name of the alleged victim, a minor.

As part of WBUR, OpenCourt uses the same professional standards that the station applies to determine what information is inappropriate to disseminate. In this case, we would have voluntarily deleted the minor’s name as well as any other identifying information.

We would have kept the rest of the hearing public.

Before the defendant had been brought up to the dock, Assistant District Attorney Erin Murphy had filed two motions – one to turn off the OpenCourt live-stream and one to “stay,” that is, prevent OpenCourt from posting the archive. Judge Coven denied the motion to turn off the camera and reserved i.e. did not rule on the motion to archive.

After the blurt, ADA Murphy renewed her motions for both turning off the live-stream and staying the archive.

This time, Judge Coven allowed the motion to stay the archive [read the full motion], while allowing the camera to continue streaming.

Motions begin to fly

Then began a series of motions and letters to the court on behalf of OpenCourt, the Norfolk County District Attorney’s office, and Judge Mark Coven of the Quincy District Court.

To follow the paper trail of motions and letters, please read below:

  • On May 31, WBUR’s lawyers sent a letterto Judge Coven stating we would voluntarily redact the name of the minor victim but that his order violated our First Amendment rights as a news organization to publish information that we lawfully obtain. [full document]
  • On June 6, Judge Coven invitedthe District Attorney and defense counsel to respond to the letter from our lawyers. [full document]
  • We responded. [full document]
  • As did the D.A. [full document]
  • Then Judge Coven ordered us to redact the name of the alleged minor victim from the recording. [full document]

On Thursday June 16, we made publicly accessible both the archives and the guidelines for archiving, without the entire May 27th archive, which we were in the process of editing. As mentioned above, OpenCourt uses the same professional standards that WBUR applies to determine what information is inappropriate to disseminate.

Up to the Supreme Court

On Monday June 20, the D.A.’s office filed a motion for an emergency stay of the archives [full document] of the Barnes dangerousness hearing with Judge Mark Coven in the Quincy District Court. They said they were preparing to file an appeal to the Single Justice session of the SJC.

The motion was granted and we posted the May 27th archive without the Barnes hearing.

On Thursday June 23, the D.A’s office filed their appeal with the SJC. [full document]

That day, Justice Margot Botsford ordered that the archive of the case be stayed “until further order of the court.” [full document]

WBUR also filed two documents to the SJC: one motion to intervene in the case [full document] and one appeal to the Single Justice session [full document].

We are now waiting for the SJC to set a hearing date.

One of the principle goals of OpenCourt is to strike the proper balance between the First Amendment right of free speech with the Sixth Amendment right to a fair trial.

The outcome of this case will set important precedence for this project and other projects working to create transparency in the courts.

2 Responses to “Mass. Supreme Judicial Court to Hear Archive Appeals”

  1. [...] OpenCourt’s coverage of archiving issues Other stories from this show: [...]

  2. [...] Click to listen to the entire audio recording of this morning’s SJC hearing.We previously wrote on June 30 to detail the chronology of motions and core issues at hand, as well as a blog post on the PBS [...]

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