Search Warrant Affidavit Open to Public, SJC Rules

In a victory for the news media, the Supreme Judicial Court today sided with the Quincy Patriot Ledger and ruled that the affidavit filed by police in support of a search warrant should be open to the public.

The case involved a State Police investigation into allegations that a prominent Quincy real estate developer, William O’Connell, had engaged in unlawful sexual relations with a minor. Shortly after police executed the warrant, a Quincy District Court judge impounded the affidavit.

The Patriot Ledger intervened in the criminal case to seek access to the impounded affidavit. Ruling that the document was presumptively public, the District Court judge lifted the impoundment order. Prosecutors and O’Connell both appealed.

In its decision today, the SJC noted that there is a longstanding presumption in favor of public access to search warrants and supporting materials. While a judge may restrict access for good cause, impoundment should be used only in limited and specific circumstances, the SJC said.

Here, the SJC rejected O’Connell’s argument that release of the affidavit would prejudice his right to a fair trial. “By engaging in the proper balancing of interests, and utilizing the procedural tools available in criminal proceedings, judges are well equipped to safeguard a defendant's right to a fair trial,” the court said.

The SJC also ruled for the first time on the applicability of a state law that makes reports to police of rapes or sexual assaults private. General Laws c. 41, § 97D, provides: "All reports of rape and sexual assault or attempts to commit such offenses and all conversations between police officers and victims of said offenses shall not be public reports and shall be maintained by the police departments in a manner which will assure their confidentiality."

Prosecutors and O’Connell argued that this statute applied not only to police records, but also to court records, including search warrant affidavits. The SJC concluded otherwise, it does not by its terms preclude publication in court of police reports or the content of a victim's conversations with police regarding an alleged rape or sexual assault.

The case is Commonwealth v. George W. Prescott Publishing Co., LLC.

The Massachusetts Newspaper Publishers Association, for which I serve as executive director, filed an amicus brief in support of the Patriot Ledger, together with the New England Newspaper and Press Association, the Citizen Media Law Project and the New England First Amendment Coalition. 

SJC Issues Key Ruling on Cameras in Courts

The Massachusetts Supreme Judicial Court issued an important ruling this morning on the constitutionality of cameras in the courts. Ruling on two challenges to the OpenCourt pilot project in Quincy District Court, the SJC held in Commonwealth v. Barnes that any order restricting live video streaming from the courtroom is a form of prior restraint and can be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling government interest. Here is the SJC's precise language:

We conclude that any order restricting OpenCourt's ability to publish -- by "streaming live" over the Internet, publicly archiving on the Web site or otherwise -- existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest. 

In the two challenges at issue here, the SJC held that neither case satisfied the standard to justify the prior restraint:

In the Barnes case, we vacate the order of the District Court judge requiring the redaction of the name of the minor alleged victim. We expect and anticipate that OpenCourt will continue to adhere to its policy of not publishing the name of the minor, but agree that on the record of this case, the judge's order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor's privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests. In the Diorio case, we conclude that Diorio has not met the heavy burden of justifying an order of prior restraint with respect to the specific proceedings at issue in his petition for relief. 

Notably, the SJC went on to request that its Judiciary-Media Committee (on which I serve as the representative of the Massachusetts Newspaper Publishers Association) submit for the SJC's approval a set of guidelines for the operation of the OpenCourt pilot project.

Cameras in Courts Focus of Boston Bar Panel

The U.S. District Court in Massachusetts is among 14 federal courts participating in a pilot project allowing cameras in the courtroom. I am moderating a panel this week that will look at this pilot project, and also contrast it with the experimental OpenCourt digital-access project under way in Quincy District Court. Also on the panel will be former U.S. District Judge Nancy Gertner, now a professor at Harvard Law School, and Joe Spurr, a multimedia journalist and the director of OpenCourt.

The brown-bag program is Tuesday, March 6, 12:30 to 1:30 p.m., at the Boston Bar Association, 16 Beacon St., Boston. More details and registration information are available here.

New Rule Governs Electronic Access to Mass. Courts

The Massachusetts Supreme Judicial Court today approved a new SJC Rule 1:19 governing Electronic Access to the Courts. It replaces the older rule on cameras in the courts to address changes in technology and journalism. Among other changes, the rule recognizes citizen journalists and entitles them to use cameras and computers to the same extent as other journalists.

I posted more information about the new rule and a full-text PDF at my LawSites blog.

SJC Cases Test Media Access to Courts

The Massachusetts Supreme Judicial Court is slated to hear arguments this week in a series of cases that test news media access to court proceedings and documents.

On Tuesday, Nov. 8, at 9 a.m., the SJC will hear two cases, both arising out of the experimental OpenCourt project designed to make Quincy District Court more accessible to the public. Both cases challenge the right of OpenCourt to webcast criminal proceedings live and to archive webcasts on the Internet.

In one of the two cases, Charles Diorio v. First Justice of the Quincy Div. of the District Court Department, Diorio contends that OpenCourt's broadcast of his arraignment and archiving of the footage violated his constitutional right to a fair trial because identification would be an issue at the trial. In the second case, Commonwealth v. Norman Barnes, the district attorney challenges OpenCourt's archiving of an evidentiary hearing in which the identity of a child sexual assault victim was disclosed.

In both cases, WBUR-FM, the Boston University public radio station that operates OpenCourt, argues that any restrictions on it webcasting and archiving would constitute prior restraint in violation of the First Amendment.

On Wednesday, Nov. 9, at 9 a.m., the SJC will hear another media-access case, coincidentally also arising out of Quincy District Court, William O'Connell v. Criminal Clerk of Quincy District Court. The issue in this case is whether affidavits and other materials filed in support of a search warrant are public documents.

The appeal results from a request by The Patriot Ledger in Quincy to terminate an impoundment order covering documents filed in support of a warrant to search O'Connell's condominium. O'Connell's principle argument in support of maintaining the secrecy of the documents is that they involve allegations of rape and sexual assault. But the District Court judge, in lifting the impoundment order, ordered that any references to the alleged victim be redacted to protect her privacy.

In the O'Connell case, the Massachusetts Newspaper Publishers Association has filed an amicus brief, in conjunction with the New England Newspaper and Press Association, the Citizen Media Law Project and the New England First Amendment Coalition.

All of the arguments at the SJC this week will be webcast.

Federal Court in Boston to Announce New Rules on Cameras and Coverage Today

The chief judge of the U.S. District Court for Massachusetts, Mark L. Wolf, will meet with members of the news media today to announce two new initiatives with regard to coverage of the court. According to an announcement from the court, Judge Wolf will discuss the following:

• Cameras in the courtroom. Effective Oct. 17, 2011, the court will become one of 14 pilot courts to participate in a three-year study of the use of cameras in the courtrooms for civil cases in which the parties have consented to recording. The recordings will be made publicly available on www.uscourts.gov.
• Virtual Press Box. The judges of the court have approved expanded access to the court’s electronic case filing system (ECF) by approved holders of a media ID issued by the court. Upon approval of an application for a Virtual Press Box (VPB), the holder will be able to obtain a “read only” ECF account and receive email notification of all activity in cases he or she may choose to follow.

Judge Unseals Search Warrant Documents in Case against Prominent Developer

Search warrant documents involving rape and drug charges against a prominent Massachusetts developer should not be sealed, Quincy District Court Judge Robert Ziemian ruled yesterday.

The judge ruled that the documents in the case against William O'Connell are public records. The judge rejected arguments by prosecutors and defense attorneys that release of the documents would interfere with O'Connell's right to a fair trial. The judge also disagreed that their release would violate the rights of the victim, noting that any identifying information would be redacted.

Read the full story from the Patriot Ledger: Judge rules O’Connell search warrant should not be sealed.

The Post in which I Eat Crow

In a post here Friday, Probation Bill Could Shroud Judicial Discipline, I sounded an alarm, writing that a provision within the probation reform bill would have the effect of shrouding judicial discipline in greater secrecy. I was wrong.

As it turns out, the language I referred to is already state law. It is found in M.G.L. Chapter 211B, Section 10(xv).

I may not like the language. But it isn't new.

As Emily Litella would say: Never mind.

Probation Bill Could Shroud Judicial Discipline

[Correction added 8/1/11: I got this wrong. The language is not new but rather is taken from existing law. See my post, The Post in which I Eat Crow.]

The legislature is scheduled to debate today the final version of a bill to overhaul the state's probation system. Several provisions of the bill (House 3644) would provide more transparency in probation hiring. For example, employment recommendations in support of candidates for state jobs would be made public records.

However, one provision of the bill seems that it could have the effect of shrouding judicial discipline in greater secrecy. Under current law (G.L. c. 211C), disciplinary proceedings against state judges are confidential. But the confidentiality ends if the Judicial Conduct Commission finds that there is sufficient cause to file formal disciplinary charges against the judge with the Supreme Judicial Court.

The bill being debated today contains a provision, Section 10 (xvi), that gives the chief justice justice of the Trial Court the power to discipline judges. It's not clear how that disciplinary process would comport with the Judicial Conduct Commission. However, the bill contains the following language:

Consistent with the provisions of chapter 211C, all proceedings, documents, and other matters relating to such discipline shall at all times be confidential and not open to the public unless the justice appealing the disciplinary action agrees that the same shall not be confidential, or unless the supreme judicial court determines that it is in the public interest for any such proceeding, document, or other matter relating to such discipline to be made public.

Although that clause describes itself as "consistent" with 211C, it is anything but. Under 211C, the confidentiality is automatically lifted when disciplinary charges are filed against a judge. Under this language, the confidentiality is never lifted, unless the SJC takes the affirmative step of determining that it should be.

Unless I'm missing something, this appears to be a major step backward for transparency within the judiciary.

SJC: Civil Commitment Hearings Open to Public

The public has a presumptive right to attend judicial proceedings in Massachusetts that are held to determine whether someone should be involuntarily committed to a mental health facility, the Supreme Judicial Court has ruled.

"Public access to the commitment proceedings underscores the seriousness of a potential deprivation of liberty and combats tendencies toward informality that may threaten an individual's due process rights," Justice Judith Cowin wrote for the court in the case, Kirk v. Commonwealth, which was decided March 7. (Apologies for my delay in posting about it.)

However, the public's right to attend is not absolute, the SJC said. Civil commitment hearings may be closed to the public if four conditions are met:

1. The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced.
2. The closure must be no broader than necessary to protect that interest.
3. The trial court must consider reasonable alternatives to closing the proceeding.
4. It must make findings adequate to support the closure.

The case before the SJC involved Helen Kirk, a woman who in 2007 was found not guilty by reason of insanity in the death of her 3-year-old son. At issue in the civil commitment hearing was whether she was now well enough to be released from a state hospital to a residential facility.

Chazy Dowaliby, editor of The Patriot Ledger, has more details about the case at the New England First Amendment Center.

News Groups File SJC Amicus Brief to Unseal Inquest Documents in Amy Bishop Case

A coalition of New England media and advocacy organizations, spearheaded by Harvard Law School's Cyberlaw Clinic and the Citizen Media Law Project, has filed an amicus curiae brief to the Massachusetts Supreme Judicial Court seeking to unseal inquest documents in the Amy Bishop case.

After Bishop allegedly shot and killed three of her faculty colleagues at the University of Alabama in 2010, Massachusetts officials opened an inquest into the fatal shooting of her brother in 1986. After the inquest resulted in the indictment of Bishop for first-degree murder, the Boston Globe sought release of the inquest transcript and report. A Superior Court judge refused to unseal the documents. The case is now pending before the SJC.

I am a signatory to the brief on behalf of the Massachusetts Newspaper Publishers Association. A more detailed description of the case and the legal issues it involves is available from the Citizen Media Law Project. A PDF copy of the brief is available for download.

SJC Proposes New Rule on Technology in the Courts

The Rules Committee of the Massachusetts Supreme Judicial Court today published proposed amendments to SJC Rule 1:19, pertaining to cameras in the courts. The proposed amendments are designed, in part, to address the more-varied use of electronic technology in courtrooms, both by traditional media and new media.

The amendments were recommended by the SJC's Judiciary-Media Committee. They were drafted by a subcommittee created to review the current rule and recommend changes in light of advances in technology and journalism since the rule was promulgated.

(I serve on the Judiciary-Media Committee and was on the subcommittee that drafted the proposed rule.)

The proposed revisions change the name of the rule to "Electronic Access to the Courts." They also include an expanded definition of media and a requirement that media register with the Court's Public Information Office. The proposed amendments allow the media to possess and operate electronic devices in the courtroom, subject to certain restrictions. Live blogging from the courtroom generally would be permissible.

The SJC asks that comments be directed to Christine P. Burak, Secretary, Supreme Judicial Court Rules Committee, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston MA 02108 on or before Friday, Jan. 28, 2011. Comments may also be sent by e-mail to christine.burak@sjc.state.ma.us.

Attached are:

• The proposed Rule 1:19.
• A blackline comparison with the current rule.
• A summary of the proposed changes prepared by the subcommittee that drafted the amendments.

U.S. Court in Mass. Mulls Easing of Cameras Rule

The U.S. District Court in Massachusetts is proposing a rule change that would allow cameras in federal courtrooms. The proposed rule would expressly authorize judges to permit the transmission of court proceedings by broadcast and via the Internet.

The proposal is a response to the decision of the 1st U.S. Circuit Court of Appeals in In re Sony BMG Music Entertainment, where the appeals court ruled that the District Court's current rule blocked U.S. District Judge Nancy Gertner from allowing a music-download case to be webcast.

The proposed changes to the rule would still prohibit cameras in most instances. It would give judges discretion to permit cameras and to place "such limitations and restrictions" on their use as the judge deems appropriate. The rule would also authorize the judge to place restrictions on the use and additional dissemination of the broadcast.

In any case where cameras are allowed, the rule would prohibit them from showing jurors. The rule would allow witnesses and litigants to opt out of being photographed. Also prohibited would be use of cameras to capture sidebar conferences with the judge or discussions between lawyers and their clients.

The court is accepting public comment on the proposed rule until tomorrow, April 16, after which it will decide whether to adopt it.

SJC Affirms Public's Right to View Jury Selection

The Massachusetts Supreme Judicial Court issued an important decision today underscoring the right of the public and the press to sit in on jury selection in criminal cases. The opinion, Commonwealth v. Cohen, concludes that even a partial closure of the courtroom -- with some family members and non-parties allowed in -- can violate both the First Amendment rights of the public and press and the Sixth Amendment rights of the defendant.

The public trial right applies to jury selection proceedings ... which are "a crucial part of any criminal case." ... At that stage, "the primacy of the accused's right [to a public trial] is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness." ... The "sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known." ... Throughout a trial, an open court room "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." ... Thus, courts recognize a "strong presumption in favor of a public trial," ... "overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

The case arose out of jury empanelment in the criminal prosecution of David M. Cohen, an attorney and former Stoughton, Mass., police sergeant. On the fourth day of empanelment, Cohen's defense counsel noticed a sign on the courtroom door that said, "Jury empanelment. Do not enter." After learning that the sign had been on the door throughout the empanelment process, the lawyer moved for a mistrial. The judge denied the motion. The lawyer repeated his motion for a mistrial later the same day, after learning that members of the public were removed from the courtroom. Again, the judge denied the motion.

"The defendant has thus established that the jury selection procedures used in this case violated his Sixth Amendment right to a public trial; he has also shown that he did not waive this right," the SJC concluded. Finding that there would be no other way to remedy the violation, the court ordered that Cohen be granted a new trial.

Judge Grants Press Access to Poutre Testimony

A judge in Springfield ruled this morning that the news media will be allowed to cover the testimony of 14-year-old Haleigh Poutre if she appears in court to testify in the child abuse case against her stepfather, Jason D. Strickland.

According to a report published today by The Republican, Hampden Superior Court Judge Judd J. Carhart denied the request of the state Department of Children and Families to exclude media coverage if Poutre testifies. He said he would make sure that the press makes accommodations that will be sensitive to the girl, who now lives in a Boston rehabilitation hospital because of brain injury.

Lawyers for both The Republican and The Boston Globe argued for access. On Sunday, The Republican's publisher, Larry McDermott, published a column about his newspaper's request for access, Case Is About Accountability, Not 'Glory'.

MA to Review Rules Limiting Judicial Comment

The Massachusetts Supreme Judicial Court announed today that it has appointed a panel to consider whether to revise the rule limiting public comment by judges. Canon 3B(9) of the Massachusetts Code of Judicial Conduct requires judges to "abstain from public comment about a pending or impending Massachusetts proceeding in any court." The rule came under fire most recently in when Republican presidential candidate and former Massachusetts Gov. Mitt Romney condemned his own judicial appointee for her release of Daniel Tavares, who is charged with shooting a Washington couple in November. Many observers believed the judge and the public were disadvantaged by her inability to explain her decision.

Asked about the incident during her speech at the Nov. 30 annual meeting of the Massachusetts Newspaper Publishers Association, SJC Chief Justice Margaret H. Marshall indicated she might revisit the rule. In today's announcement, the court said:

"The Committee's task is to provide the Justices with a recommendation regarding changes, if any, that should be made in the canons or commentary to that provision of the Code, or such other recommendations relating to public comment by judges that the Committee wishes to make. The Justices have asked the Committee to submit its report within three months."

Chairing the 11-member committee is Superior Court Judge E. Susan Garsh, a former media lawyer. Other members include lawyers, judges and a law professor.

SJC Denies Post-trial Access to Jury List

The Massachusetts Supreme Judicial Court today denied a newspaper's request for post-verdict access to jurors' names and addresses in a New Bedford criminal trial. Justice Judith Cowin wrote for the court that First Amendment rights must bow to a legitimate concern for juror safety. The request had been made by the New Bedford Standard-Times newspaper. The Massachusetts Newpaper Publishers Association (of which I am executive director) had filed a brief as amicus curiae.

The full text of the decision follows.


COMMONWEALTH vs. Manuel SILVA.
SJC-09750
January 2, 2007. - April 5, 2007.
Constitutional Law, Impoundment order. Uniform Rules on Impoundment Procedure. Practice, Criminal, Impoundment order, Jury and jurors. Jury and Jurors. Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice. Public Records.

INDICTMENT found and returned in the Superior Court Department on September 26, 2002.

Following entry of an order impounding the jury list by Gary A. Nickerson, J., review of the order was sought by a nonparty from a single justice of the Appeals Court.

The matter was reported to a panel of the Appeals Court by Elspeth B. Cypher, J. The Supreme Judicial Court on its own initiative transferred the matter from the Appeals Court.

Anthony C. Savastano 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, 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. [FN1]

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. [FN2] 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). [FN3] 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 (2004); Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 600-602 (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 (1988), cert. denied, 490 U.S. 1066 (1989); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 551 (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, quoting Ottaway Newspapers, Inc. v. Appeals Court, supra at 551. 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. 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, 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 (1992), S. C., 414 Mass. 1006 (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. 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. 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." [FN4] 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. [FN5]

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. [FN6] 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. [FN7]

Relevant law. We turn to the substance of the Standard-Times's appeal. In Massachusetts, the right of public access [FN8] 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.

[FN9] 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. [FN10] 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. [FN11] Republican Co. v. Appeals Court, supra at 222; Boston Herald, Inc. v. Sharpe, supra at 604. This right of access is not absolute, however, and must yield to a trial judge's decision to impound records for "good cause." Republican Co. v. Appeals Court, supra at 223; Boston Herald, Inc. v. Sharpe, supra. This balance of competing rights is reflected in the Uniform Rules on Impoundment Procedure, which "incorporate many of the principles of our prior cases, including the requirement that an order of impoundment be entered only on a showing of 'good cause.' "

[FN12] H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 332 (1987).

There is also a constitutional right of public access to court proceedings grounded in First Amendment principles. See Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 9-10 (1986), citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984); Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 634 (1988), cert. denied, 490 U.S. 1066 (1989). In this case, however, the judge did not attempt to apply a separate constitutional analysis, because none was necessary. The "good cause" analysis of rule 7 of the Uniform Rules on Impoundment Procedure "require[s] a judge to take into account essentially the same factors as required by the First Amendment: 'the competing rights of the parties and alternatives to impoundment.' " Republican Co. v. Appeals Court, supra at 223 n. 8, quoting Boston Herald, Inc. v. Sharpe, supra at 605 n. 24. Thus, in applying the "good cause" standard of the uniform rules, the judge of necessity treated the relevant constitutional considerations, and we do likewise.

Discussion. We review a trial judge's decision to impound judicial records for abuse of discretion or other legal error. Boston Herald, Inc. v. Sharpe, supra at 601. Here, the judge impounded the jurors' names and addresses based on a concern for juror safety that was amply justified by the circumstances surrounding the trial.

The safety of jurors is crucial to the functioning of the judicial system, see Commonwealth v. Acen, 396 Mass. 472, 482 (1986) (recognizing that jury service is "critical to the just operation of the court system"). If jurors doubt the system's ability to protect them from violence, cooperative service is discouraged and public confidence in the rule of law diminished. Furthermore, as one court has astutely observed, "[u]ninhibited and frank jury deliberations are essential to our system of justice. That frankness would be jeopardized if jurors refrained from speaking freely because they fear for their safety should their names and comments become public knowledge." In re Disclosure of Juror Names and Addresses, 233 Mich.App. 604, 628 (1999). See United States v. Giraldi, 858 F.Supp. 85, 86 (1994) (recognizing court's duty to impound juror information where necessary to protect jurors from reprisal and intimidation). While other key participants in a high-profile criminal trial involving dangerous offenders--the prosecutor, the defense attorney, and the judge--have all willingly accepted any attendant publicity and risks, the jurors have not. Having conscripted jurors into what has been aptly termed, "next to bearing arms in defense of the nation, ... the highest calling of American citizenship," United States v. Doherty, 675 F.Supp. 719, 722 n. 4 (D.Mass.1987), the justice system owes them the highest degree of vigilance for their personal safety.

We have no difficulty concluding that, in this particular murder trial, considerations of juror safety warranted impoundment of the jury list. The killing itself was an appalling act of violence. One of the Commonwealth's key witnesses was the victim of an armed assault prior to trial. A mere two hours after the jury's verdict acquitting the defendant, and ostensibly in response to it, an unknown assailant shot at the house of the defendant's mother. Indeed, one of the jurors feared so greatly for her safety that she had to be released from service.

With the exception of the postverdict shooting, which was made known to the judge at the motion hearing and through a police report, all of these facts were known to the trial judge as a result of presiding at the trial. In fact, although purporting to contest the legitimacy of the jurors' safety concerns, the Standard-Times states that its very purpose in seeking access to the jurors was to investigate the role that fear of retaliation may have played in their verdict. [FN13] Thus, in the circumstances of this case, there is no merit to the Standard-Times's argument that the judge was required to conduct an evidentiary hearing regarding the juror safety issues. The uniform rules require only written findings of good cause made after a "hearing," and do not expressly mandate an evidentiary hearing. See note 12, supra. There may be special cases where it is necessary to have an evidentiary hearing on whether to impound a jury list, but here, where facts known to the judge by virtue of presiding over the trial raised serious questions of juror safety, it was unnecessary.

We recognize the cases cited by the Standard-Times and the amicus in which other jurisdictions, notably the United States Court of Appeals for the First Circuit, have been protective of the public's right to access juror information. [FN14] See, e.g., In re Globe Newspaper Co., 920 F.2d 88 (1st Cir.1990). See also In re Baltimore Sun Co., 841 F.2d 74 (4th Cir.1998); State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146 (2002). We find significant, however, the acknowledgment in several of these cases that "First Amendment rights may have to bow to a court's needs to protect its essential processes, including the jury system, from violence, fraud and other influences that threaten the objectivity and independence of jurors." In re Globe Newspaper Co., supra at 97 n. 10. See In re Disclosure of Juror Names and Addresses, supra at 628-631 (remanding for consideration of risks to juror safety from disclosure). It goes without saying that no case has been called to our attention in which a public right to juror information was held to override a legitimate concern for juror safety.

Conclusion. Because the judge had good cause to impound the jury list, there was no abuse of discretion or other error. The order of the Superior Court denying the amended motion for the jury list and impounding the names and addresses of the trial jurors is affirmed.

So ordered.

FN1. We acknowledge the amicus brief of the Massachusetts Newspaper Publishers Association.

FN2. The Standard-Times contends that the trial judge was required to hold an evidentiary hearing in order to make the requisite findings. However, it does not appear that the Standard-Times ever specifically requested an evidentiary hearing.

FN3. In so doing, the Attorney General was presumably guided by the practice of our prior cases in which the court that issued a challenged impoundment order is a named defendant. See generally Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass.

628 (1988), cert. denied, 490 U.S. 1066 (1989); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539 (1977).

FN4. S.J.C. Rule 1:15, as appearing in 401 Mass. 1301 (1998), governs impoundment procedure in the appellate courts. Rule 1:15 draws no distinction between criminal and civil appeals, providing that the Uniform Rules on Impoundment Procedure, "when used in conjunction with this rule, shall govern impoundment in both civil and criminal proceedings."

FN5. Because there was considerable doubt as to the proper appellate procedure in these circumstances, we may entertain this appeal under our superintendence powers pursuant to G.L. c. 211, § 3, "to resolve the doubt and settle a general rule." Ottaway Newspapers, Inc. v. Appeals Court, supra at 551.

FN6. As in the present case, the Attorney General has often appeared in litigation to represent the court issuing an impoundment order. See note 3, supra. This is merely an extension of the Attorney General's authority to represent judges and courts in litigation, see Casey v. Justice of the Superior Court, 229 Mass. 200, 202 (1918), and duty to represent the public interest. See Secretary of Admin. & Fin. v. Attorney Gen., 367 Mass. 154,

163 (1975).

FN7. Such notice should clearly specify that notice is being given as required by law and that the attorney general has the right to be heard.

FN8. Like the right to attend court proceedings, the right of the media to gain access to judicial records "derives entirely from the public's right of access," and the media "have neither a greater nor a lesser right ... than any other member of the public." Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, 421 Mass. 502, 505 (1995).

FN9. There was a document containing the names of the empanelled jurors, as indicated by numerous references to "the jury list." Regardless whether this document contained the addresses of the jury members, they could easily be obtained from the list of the entire jury venire, which is a public record. See G.L. c. 234A, § 67, set forth at note 10, infra.

FN10. General Laws c. 234A, § 67, provides:

"Not later than ten days in advance of scheduled appearances by jurors, the office of jury commissioner shall send or deliver to the appropriate clerks of court a list of the grand and trial jurors expected to appear for service in

the respective courts. The list shall contain the name, address, and date of birth of each juror and such other information as the jury commissioner, with the approval of the committee, deems appropriate. Unless the court orders otherwise, the list shall be available upon request for inspection by parties, counsel, their agents, and members of the public."

FN11. We assume, without deciding, that, in this case the information sought by the Standard-Times constitutes a "judicial record."

FN12. Rule 7 of the Uniform Rules on Impoundment Procedure (2007) provides, in part: "An order of impoundment may be entered by the court, after hearing, for good cause shown and in accordance with applicable law. In determining good cause, the court shall consider all relevant factors, including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of the community interest, and the reason(s) for the request."

FN13. While we of course share the Standard-Times's concern that jury verdicts not be influenced by fear of reprisal, we do not believe that the solution is to subject jurors to publicity that can only enhance these fears.

FN14. To be sure, there are cases as well which recognize no right to jurors' information, or give trial judges unfettered discretion to impound it. See generally Gannett Co. v. State, 571 A.2d 735 (Del.1990), cert. denied, 495 U.S. 918 (1990); Newsday, Inc. v. Sise, 71 N.Y.2d 146 (1987), cert. denied, 486 U.S. 1056 (1988); Commonwealth v. Long, 871 A.2d 1262 (Pa.Super.2005), appeal granted in part, 584 Pa. 437-438 (2005).

SJC Denies Access to Clerk-Magistrate Hearings

The Massachusetts Supreme Judicial Court issued an opinion today that there is no First Amendment right of access to criminal "show cause" hearings before clerk-magistrates in the state's district courts. (I filed an amicus brief in this case on behalf of the Massachusetts Newspaper Publishers Association.) Following is the full text of the opinion.

EAGLE-TRIBUNE PUBLISHING COMPANY
vs.
CLERK-MAGISTRATE OF THE LAWRENCE DIVISION OF THE DISTRICT COURT DEPARTMENT & others. [FN1]

SJC-09665
February 5, 2007. - March 28, 2007.
Supreme Judicial Court, Superintendence of inferior courts. District Court, Clerk-Magistrate. Practice, Criminal, Show cause hearing. Constitutional Law, Access to court proceedings.

CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on November 4, 2005.

The case was heard by Ireland, J.

Peter J. Caruso (Peter J. Caruso, II, with him) for the plaintiff.

Maura D. McLaughlin, Assistant Attorney General, for the defendants.

Robert J. Ambrogi, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.

Present: Greaney, Spina, Cowin, & Cordy, JJ.

COWIN, J.

In this appeal, we consider whether there exists under the First Amendment to the United States Constitution a right of public access to "show cause" hearings that precede the initiation of criminal proceedings in certain cases. We conclude that there is not. [FN2]

Background. For purposes of the present appeal, the facts are not in dispute. In October, 2005, a twenty year old woman was stabbed at a nightclub in Lawrence, after she was allegedly served alcohol despite being under the legal drinking age. This incident attracted significant publicity. Soon after, the Lawrence police department filed an application for issuance of criminal process in the District Court against the nightclub's corporate owner. Pursuant to G.L. c. 218, § 35A, a "show cause" hearing before a clerk-magistrate was scheduled, which the court indicated would be closed to the public. The Eagle-Tribune Publishing Company (the Eagle-Tribune), publisher of the Eagle-Tribune newspaper, sought access to the show cause hearing and filed a "Motion to Open Preliminary Probable Cause Hearings to the Press and to the Public." The clerk-magistrate denied the motion, [FN3] as well as the Eagle-Tribune's subsequent motion for reconsideration. The Eagle-Tribune sought relief from a single justice of this court pursuant to G.L. c. 211, § 3, and the Attorney General filed an opposition. The single justice denied relief, and the Eagle-Tribune timely appealed to the full court. Because there is no First Amendment right of public access to show cause hearings, the single justice did not abuse his discretion or commit other error in denying the relief sought.

Show cause hearings. As this case turns largely on the nature of criminal show cause hearings in Massachusetts, we describe some of the aspects of such hearings as they have developed through statute, case law, and the District Court Standards of Judicial Practice: The Complaint Procedure (1975) (Complaint Standards). [FN4]

Many criminal prosecutions begin with an arrest, followed by the filing of an application for a complaint against the arrested person by a law enforcement officer. See standards 2:00-2:04 of the Complaint Standards. However, prosecution may also be commenced by the filing of an application for issuance of criminal process against an individual or entity by a private citizen or a law enforcement officer. [FN5] See standards 3:00-3:26 of the Complaint Standards. In cases where criminal process is sought against a person not under arrest, G.L. c. 218, § 35A, provides for a show cause hearing at which the accused is given "an opportunity to be heard personally or by counsel in opposition to the issuance of any process." [FN6], [FN7]

When first enacted in 1943, G.L. c. 218, § 35A, merely "gave a statutory basis for a practice sometimes ... followed by the judge or clerk of allowing the attorney for the prospective defendant to state relevant circumstances which might be thought to bear on the propriety of the issuance of process." Commonwealth v. Riley, 333 Mass. 414, 416 (1956). The hearing is "held for the protection and benefit of the respondent named in the application," Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 142 (2001), and is not required by either the Federal Constitution or the Massachusetts Declaration of Rights, Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, 439 Mass. 352, 355 n. 3 (2003).

The show cause hearing is held before a clerk-magistrate, who need not be an attorney. The hearing's legal function is to determine whether there is probable cause to issue criminal process against the accused. See G.L. c. 218, § 35A; commentary to standard 3:00 of the Complaint Standards. However, "[t]he implicit purpose of the [§ ] 35A hearings is to enable the [clerk-magistrate] to screen a variety of minor criminal or potentially criminal matters out of the criminal justice system through a combination of counseling, discussion, or threat of prosecution--techniques which might be described as characteristic, in a general way, of the process of mediation." Snyder, Crime and Community Mediation--The Boston Experience: A Preliminary Report on the Dorchester Urban Court Program, 1978 Wis. L.Rev. 737, 746-747, quoted with approval in Gordon v. Fay, 382 Mass. 64, 69-70 (1980). See Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, supra at 356; Commonwealth v. Clerk of the Boston Div. of the Juvenile Court Dep't, 432 Mass. 693, 702 & n. 12 (2000); Commonwealth v. Cote, 15 Mass.App.Ct. 229, 235 (1983). Thus, "a show cause hearing ... will often be used by a clerk-magistrate in an effort to bring about an informal settlement of grievances, typically relating to minor matters involving 'the frictions and altercations of daily life.' " Commonwealth v. Clerk of the W. Roxbury Div. of the Dist. Court Dep't, supra at 356, quoting Bradford v. Knights, 427 Mass. 748, 751 (1998). [FN8]

Right of public access to show cause hearings. [FN9] We review the decision of a single justice under G.L. c. 211, § 3, for abuse of discretion or other error of law. Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, supra at 137. As the Eagle-Tribune has not argued any basis for its right to access other than the Federal Constitution, our analysis is limited to whether there exists under the First Amendment a right of public access to show cause hearings. [FN10]

The First Amendment confers a qualified right of public access to certain judicial proceedings. [FN11] See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986) (Press-Enterprise II ); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509-10 (1984) (Press-Enterprise I ). For this right of access to apply to a particular proceeding, the proceeding must satisfy a two-part test of "experience" and "logic": (1) the type of proceeding must have a historic tradition of openness, and (2) public access must "play[ ] a significant positive role in the functioning of the particular process in question." Press-Enterprise II, supra at 8. See WBZ-TV4 v. Executive Office of Labor, 414 Mass. 767, 770 (1993). In applying this test, the United States Supreme Court has recognized that certain proceedings, such as trials, have historically been open to the public and benefit from public access. Press-Enterprise II, supra at 9. Others, however, notably grand jury proceedings, have always been secret and "would be totally frustrated if conducted openly." Id. If the tests of experience and logic are met and a First Amendment right of access to a type of proceeding is found, such a proceeding may only be closed to the public on specific findings that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id., quoting Press-Enterprise I, supra at 510.

a. "Experience." Show cause hearings fail the "experience" test because there is no tradition of public access to this type of proceeding. Since their beginnings as informal opportunities for the accused to be heard on the question whether to issue criminal process, see Commonwealth v. Riley, 333 Mass. 414, 416 (1956), show cause hearings have always been "[p]resumptively ... private and as informal as circumstances will permit." Standard 3:15 of the Complaint Standards. Of course, the "experience" test does not turn merely on the label given the proceeding, Press-Enterprise II, supra at 7; thus, we must also look to whether any analogous proceedings have historically been open to the public, In re Boston Herald, Inc., 321 F.3d 174, 184 (1st Cir.2003). [FN12] However, the parties have not called our attention to, nor have we located, any proceeding resembling a Massachusetts show cause hearing to which the public enjoys a right of access.

The Eagle-Tribune argues strenuously that show cause hearings are the equivalent of the preliminary criminal hearings to which the Supreme Court has found a First Amendment right of public access. See Press-Enterprise II, supra at 13 (finding public right of access to California preliminary hearings). However, this analogy fails on multiple levels. The Press-Enterprise II decision involved preliminary hearings held after a defendant has already been charged with a crime to determine whether sufficient evidence exists to bring the person to trial. See Press-Enterprise II, supra at 12. In holding that such proceedings, as conducted in California, implicate a First Amendment right of public access, the Supreme Court relied on the fact that they "function[ ] much like a full-scale trial," id. at 7, in that "[t]he accused has the right to personally appear ..., to be represented by counsel, to cross-examine hostile witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence," id. at 12.

By contrast, a show cause hearing, which takes place before any criminal prosecution has begun, bears little resemblance to a trial. The rules of evidence that obtain at a trial do not apply. See Commonwealth v. Cote, 15 Mass.App.Ct. 229, 236 (1983) (noting no "proscription against consideration of hearsay at this stage of criminal proceedings"). The accused has no right to appointed counsel at a show cause hearing, only a right to have an attorney present if one is already retained. Cf. Coleman v. Alabama, 399 U.S. 1, 9- 10 (1970) (Federal Constitution requires appointment of counsel for indigent criminal defendants at preliminary hearings); Myers v. Commonwealth, 363 Mass. 843, 847-848 (1973). While the accused has the right "to be heard personally or by counsel," G.L. c. 218, § 35A, counsel is "permitted to participate only to the extent that the magistrate feels it will be materially helpful in deciding whether process should issue." Commentary to standard 3:15 of the Complaint Standards. Thus, an accused at a show cause hearing does not have a right to cross-examine the witnesses against him. See Commonwealth v. Riley, supra at 415-416.

As the Attorney General points out, the proceeding in Massachusetts that corresponds to the preliminary hearing at issue in Press-Enterprise II is not a show cause hearing under G.L. c. 218, § 35A, but rather, a probable cause hearing under G.L. c. 276, § 38. [FN13] See standards 3:00-3:04 of the Standards of Judicial Practice: Trials and Probable Cause Hearings, (1981) (Probable Cause Standards). See also Commonwealth v. Riley, supra at 416 (distinguishing show cause hearings from probable cause hearings). Like the preliminary hearings that the Supreme Court has found to require public access (and unlike a show cause hearing), a probable cause hearing takes place after an individual is already charged with a crime. [FN14] See G.L. c. 276, § 38. Its purpose is to determine whether there is sufficient admissible evidence to bind the defendant over for trial in the Superior Court, [FN15] see Myers v. Commonwealth, supra at 846-848, a substantively higher standard of "probable cause" than that required at show cause hearings, see id. at 848-849. [FN16] See also standard 3:01 of the Probable Cause Standards. The probable cause hearing is a "critical stage" of the criminal process at which the defendant has the right to appointment of counsel. Myers v. Commonwealth, supra at 847-848, quoting Coleman v. Alabama, supra at 9. See Commonwealth v. Britt, 362 Mass. 325, 330-331 (1972). The defendant also has the right to present evidence and cross-examine witnesses. Myers v. Commonwealth, supra at 855-856. The rules of evidence are fully applicable and a finding of probable cause "must be based on competent testimony which would be admissible at trial." Id. at 849 n. 6. See standard 3:02 of the Probable Cause Standards.

Show cause hearings are not like probable cause hearings. They are more akin to grand jury proceedings, which likewise precede the formal initiation of criminal prosecution and employ the same "probable cause to arrest" standard. See note 16, supra; Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984); Myers v. Commonwealth, supra at 848. See also commentary to standard 1:00 of the Complaint Standards ("Clerks and judges of the District Court, in effect, serve a grand jury-type function to determine whether a person is to be involuntarily cast in the role of a defendant in a criminal case"). The Supreme Court has acknowledged that grand jury proceedings require secrecy in order to function. Press-Enterprise II, supra at 9. Show cause hearings may also be analogized to the complaint procedure for arrested individuals, in which a law enforcement officer swears to the underlying facts before a clerk-magistrate who must determine probable cause. See G.L. c. 276, § 22; standard 2:03 of the Complaint Standards. This is an ex parte proceeding at which not even the accused, let alone the public, is present. See Commonwealth v. Smallwood, 379 Mass. 878, 884-885 (1980). Finally, to the extent that show cause hearings often function as informal dispute resolution sessions akin to court-facilitated mediation, they share in a tradition not of openness, but of privacy.

b. "Logic." Although the two parts of the Press-Enterprise test are conjunctive and failure of the "experience" test is fatal to a First Amendment claim, see WBZ-TV4 v. Executive Office of Labor, 414 Mass. 767, 770 (1993), we note that show cause hearings also do not meet the "logic" test, because public access would not significantly aid their functioning. The show cause hearing is "held for the protection and benefit" of the accused, Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 142 (2001), and allows the clerk-magistrate to screen out baseless complaints with minimal harm to the accused's reputation; this purpose would be frustrated by public access to the hearings. Furthermore, the ability of clerk-magistrates to resolve commonplace disputes without the need for criminal prosecution could be compromised by hearings open to the public, which may inflame the animosities involved.

Allowing public access to show cause hearings. While the First Amendment does not require that a Massachusetts show cause hearing be open to the public, there may be circumstances in which an open hearing is appropriate. Standard 3:15 of the Complaint Standards states only that show cause hearings are "presumptively" closed, not that they should always be closed. Indeed, standard 3:16 of the Complaint Standards provides:

"If the application [for issuance of process] is one of special public significance, and if in the opinion of the magistrate the legitimate interest of the public outweighs the right of privacy in the accused, the hearing may be open to the public, and should be conducted in the formal atmosphere of a courtroom."

Where an incident has already attracted public attention prior to a show cause hearing, the interest in shielding the participants from publicity is necessarily diminished, while the public's legitimate interest in access is correspondingly stronger.

In deciding whether to allow access to a particular show cause hearing, clerk-magistrates should consider not only the potential drawbacks of public access, but its considerable benefits: [FN17]

"It is desirable that [judicial proceedings] should take place under the public eye ... because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed."

Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004), quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.). The transparency that open proceedings afford may be especially important if a well-publicized show cause hearing results in a decision not to bring criminal charges, thereby ending the matter. In such cases, the public may question whether justice has been done behind the closed doors of the hearing room. This is not to say that every case that may attract public attention necessarily requires a public show cause hearing; for instance, "[t]he sole fact that the person complained against is a public official or otherwise well known is not in and of itself ... reason for the hearing to be public." Commentary to standard 3:16 of the Complaint Standards. Of course, relief from a clerk-magistrate's decision in extraordinary cases may be sought from a single justice of this court.

Conclusion. The order of the single justice denying relief under G.L. c. 211, § 3, is affirmed.

So ordered.

FN1. First Justice of the Lawrence Division of the District Court Department; Chief Justice of the District Court Department.

FN2. We acknowledge the amicus brief of the Massachusetts Newspaper Publishers Association.

FN3. In brief handwritten findings made after a hearing on the motion, the clerk-magistrate stated that the decision was "based on the [accused's] best interest as a private corporation which outweigh[s] any standing the press or public may have at such a preliminary stage of [the] proceedings."

FN4. While lacking the force of law or rules, the Standards of Judicial Practice: The Complaint Procedure (1975) (Complaint Standards) are "administrative regulations promulgated by the Chief Justice of the District Court that [are] treated as statements of desirable practice" to be followed in the District Courts. Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, 439 Mass. 352, 357 (2003). See commentary to standard 1:00 of the Complaint Standards.

FN5. The Complaint Standards carefully distinguish between an "application for complaint," which is a request for a formal written charge against an individual who has already been arrested, and an "application for issuance of criminal process," which is a request for the issuance of an arrest warrant or

summons. See standard 1:01 of the Complaint Standards. We do likewise.

FN6. General Laws c. 218, § 35A, provides, in relevant part:

"If a complaint is received by a district court, or by a justice, associate justice or special justice thereof, or by a clerk, assistant clerk, temporary clerk or temporary assistant clerk thereof under section 32, 33 or 35, as the case may be, the person against whom such complaint is made, if not under arrest for the offense for which the complaint is made, shall, in the case of a complaint for a misdemeanor or a complaint for a felony received from a law enforcement officer who so requests, and may, in the discretion of any said officers in the case of a complaint for a felony which is not received from a law enforcement officer, be given an opportunity to be heard personally or by counsel in opposition to the issuance of any process based on such complaint unless there is an imminent threat of bodily injury, of the commission of a crime, or of flight from the commonwealth by the person against whom such complaint is made....

"The court, or said officer thereof, may upon consideration of the evidence, obtained by hearing or otherwise, cause process to be issued unless there is no probable cause to believe that the person who is the object of the complaint has committed the offense charged...."

FN7. The statute previously provided for show cause hearings only for misdemeanors. See Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, supra at 354-356. A 2004 amendment expanded show cause hearings to felonies in certain situations as well. See St.2004, c. 149, § 200.

FN8. A clerk-magistrate's determination that probable cause does not exist for the issuance of criminal process may be appealed by the Commonwealth. Commonwealth v. Clerk of the Boston Div. of the Juvenile Court Dep't, 432 Mass. 693, 701 (2000).

FN9. We note at the outset the Attorney General's representation that the show cause hearing to which the Eagle-Tribune sought access has already taken place, rendering the present appeal moot. This matter is, however, "capable of repetition, yet evading review." Blake v. Massachusetts Parole Bd., 369 Mass. 701, 708 (1976). Thus, we proceed to the merits.

FN10. In the course of the proceedings below, the Eagle-Tribune also claimed rights under the analogous provision of the Massachusetts Declaration of Rights, art. 16, but has not raised any such argument on appeal. In any event, "the criteria which have been established by the United States Supreme

Court for judging claims arising under the First Amendment ... are equally appropriate to claims brought under cognate provisions of the Massachusetts Constitution." Opinions of the Justices to the House of Representatives, 387 Mass. 1201, 1202 (1982), quoting Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 558 (1979).

FN11. The right of members of the media to access judicial proceedings "derives entirely from the public's right of access," and the media "have neither a greater nor a lesser right ... than any other member of the public." Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, 421 Mass. 502, 505 (1995). See Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978).

FN12. Because the test looks to national, rather than only local traditions of openness, see El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 150 (1993), we seek analogies both in Massachusetts and in other jurisdictions.

FN13. Although the Eagle-Tribune uses the term "probable cause hearing" to refer to both types of proceedings, this is misleading. As commentary to standard 3:00 of the Standards of Judicial Practice: Trials and Probable Cause Hearings (1981) explains, "[t]he 'probable cause hearing' discussed in this

standard should be distinguished from a 'show cause hearing' for the issuance of process...." The two kinds of hearing involve distinct standards of "probable cause." See commentary to standard 3:17 of the Complaint Standards ("Probable cause for the issuance of process should not be confused with probable cause to bind over. The latter is an essentially different standard applied at a later stage of the criminal justice procedure ..."). See also note 16, infra.

FN14. General Laws c. 276, § 38, provides:

"The court or justice before whom a person is taken upon a charge of crime shall, as soon as may be, examine on oath the complainant and the witnesses for the prosecution, in the presence of the defendant, relative to any material matter connected with such charge. After the testimony to support the prosecution, the witnesses for the prisoner, if any, shall be examined on oath, and he may be assisted by counsel in such examination and in the cross examination of the witnesses in support of the prosecution."

FN15. General Laws c. 218, § 30, provides:

"[District courts] shall commit or bind over for trial in the superior court persons brought before them who appear to be guilty of crimes not within their final jurisdiction, and may so commit or bind over persons brought before them

who appear to be guilty of crimes within their final jurisdiction...."

"Defendants are held for trial only if it appears ... (1) 'that a crime has been committed' and (2) 'that there is probable cause to believe the prisoner guilty' " (emphasis in original). Corey v. Commonwealth, 364 Mass. 137, 141 (1973), quoting G.L. c. 276, § 42.

FN16. At a show cause hearing, the clerk-magistrate determines whether process should issue based on the probable cause to arrest standard, see Paquette v. Commonwealth, 440 Mass. 121, 131-132 (2003), cert. denied, 540 U.S. 1150 (2004), which requires only facts "sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offence." Myers v. Commonwealth, 363 Mass. 843, 848 (1973), quoting Commonwealth v. Stevens, 362 Mass. 24, 26 (1972). See commentary to standard 3:17 of the Complaint Standards. By contrast, at a probable cause hearing, the standard is the more stringent one applicable to a motion for a required finding of not guilty, where a judge must "view the case as if it were a trial and he were required to rule on whether there is enough credible evidence to send the case to the jury." Myers v. Commonwealth, supra at 850.

FN17. In all cases in which a request for an open hearing is made, we

encourage clerk-magistrates to make a written record of the reasons for their decision, as was done here.