Tuesday, December 13, 2011
In a decision involving the request of the Globe newspapers for a transcript of the inquest into murder charges against Amy Bishop, the Massachusetts Supreme Judicial Court today has held:
Applying our new standard to the inquest report and transcript at issue in this case, the denial of the motion to impound must be vacated because, as to the transcript, the judge failed to recognize the effect of G.L. c. 38, § 10, and, as to the report, the judge rested on the principle in Kennedy that we now replace with the rule that the report becomes a presumptively public document when the transcript becomes a presumptively public document. On remand, the judge will conduct further proceedings in accordance with this opinion, with the proviso that the inquest report and transcript shall continue to be impounded until at least ten calendar days after the issuance of the rescript. After the issuance of the rescript, the defendant, the Commonwealth, the decedent's immediate family, or another interested party shall have ten calendar days to move in the criminal case in the Superior Court to impound the inquest report and transcript for "good cause shown." If no such motion is filed, the report and transcript shall be made available to the public. If such a motion is filed, the report and transcript shall continue to be impounded temporarily until the adjudication of the motion or further order of the judge.
Finally, we address whether, in the future, a petition under G.L. c. 211, § 3, shall continue to be the only means to obtain review of the denial or allowance of a motion to impound an inquest report or transcript, or to vacate or modify an order of impoundment. In civil cases, under Rule 12 of the Uniform Rules on Impoundment Procedure at 905 (LexisNexis 2011-2012), an order impounding or refusing to impound documents filed in court may be appealed to a single justice of the Appeals Court. See Commonwealth v. Silva, 448 Mass. 701, 705 (2007). In criminal cases, we have declared that the "[p]ractice regarding orders of impoundment entered in criminal proceedings should hew as closely as possible to the protocol established by the uniform rules," and require that appellate review of impoundment orders conform to the uniform rules. Id., quoting Republican Co. v. Appeals Court, 442 Mass. 218, 227 n. 14 (2004). We conclude that in the future the practice regarding orders impounding or refusing to impound an inquest report or transcript should also "hew as closely as possible to the protocol established by the uniform rules," and that, as in the uniform rules, such orders may be appealed to a single justice of the Appeals Court.
Bishop is a professor charged in Alabama with the murder of three colleagues. This decision relates to the investigation into the 1986 death of her brother.
The prior Kennedy decision described above related to the inquest into the death of Mary Jo Kopeckne.
The title to this post was inspired by this book. (Mike Frisch)