On December 13, 2011, the Supreme Judicial Court of Massachusetts ruled that a judge of the Superior Court followed the wrong standard when denying a request by the Boston Globe for access to the transcript and report of an inquest into the death of Seth Bishop, the brother of Amy Bishop.
In Massachusetts, an inquest is a form of special investigative proceeding initiated by a district attorney or the Attorney General in which a judge analyzes the circumstances and cause of a person's death -- including identification of any person whose "unlawful act or negligence appears to have contributed" to the death. Unlike other judicial proceedings, the judge does not act as a neutral arbiter; rather, the judge takes an active role in investigating the cause of death.
The transcript and report of the inquest constitute a record the process followed and conclusions reached by the judge. However, an inquest is not a prosecution: no criminal charges are brought in the proceeding; no legal defenses are considered; and the court's findings are neither evidence nor a determination of guilt on the part of any individual. Instead, the inquest procedure is used (sparingly) by prosecutors to investigate the cause of death, usually to determine whether criminal proceedings are appropriate.
The results of inquest proceedings are naturally of significant interest to the public because they represent an official evaluation of a deceased person's cause of death. There has been concern, however, that if prosecutors decide to bring charges after an inquest, the release of the results of the inquest before trial might prejudice the right of the accused to a fair trial.
The Bishop inquest was conducted in the Quincy Division of the District Court Department. and ended on May 25, 2010 with the filing of the judge's report and transcript. On June 16, 2010, a Norfolk County grand jury returned an indictment charging Amy Bishop with murder in the first degree in connection with her brother's death. That same day, the Globe filed a request to access to the inquest materials, which was denied by a judge of the Superior Court on June 18. In denying the Globe's request, the Superior Court followed a common law rule established by the SJC in 1969 with respect to inquest materials from another infamous case, the death of Mary Jo Kopechne. The earlier case, Kennedy v. Justice of the District Court of Dukes County, stated that in order "to protect the integrity, the investigatory character, and the effectiveness of inquests," inquest materials should be impounded automatically until such time as any criminal case resulting from the inquest is resolved,whether by a decision to terminate the prosecution, a grand jury's refusal to return an indictment, dismissal of the charges, or trial.
The Globe challenged the denial, and, after an appeal in which the Citizen Media Law Project filed an amicus brief, Massachuetts' highest court has now ruled that the Superior Court applied the wrong legal standard in denying the Globe's request. The Supreme Judicial Court held that the Massachusetts Legislature abrogated the common law rule set forth in the 1969 Kennedy decision with the enactment of Chapter 38, Section 10 of the Massachusetts General Laws in 1992. Section 10 states that the judge conducting the inquest must file the judge's report on the results of the inquest as well as the transcript of the inquest, which shall be impounded "until the district attorney files a certificate with the superior court indicating that he will not present the case to a grand jury, or files notice with the superior court that the grand jury has returned a true bill or a no bill after presentment by the district attorney."
In other words, the statute requires that impoundment of the inquest transcript shall last until (1) the district attorney decides not to pursue an indictment or (2) the grand jury rules upon the request for an indictment, whichever comes first. Looking another state statute with similar language (Chapter 276, Section 2B, governing materials filed in support of obtaining a search warrant), the SJC held that, by negative implication, the inquest transcript presumptively becomes a public record after the events described in the statute. In addition, although Chapter 38, Section 10, only discusses impoundment of the inquest transcript and does not mention the inquest report, the SJC held that the report also becomes a presumptively public record at the same time as the transcript.
In the Bishop case, because the grand jury had returned an indictment before the Globe made its request for the inquest materials, the SJC held that those materials should have been treated by the Superior Court as presumptively public. It therefore vacated the Superior Court's denial of the Globe's request.
However, the SJC did not direct that the materials be provided to the Globe. Because the inquest materials were only presumptively public, the SJC held that it was still possible that a party desiring that the materials be withheld from public view could overcome that presumption and show "good cause" why the materials should continue to be impounded. The "good cause" standard normally considers the potential impact of releasing materials on a defendant's fair trial rights and any privacy rights that might be implicated, balanced against the strong public interest in access to materials that reveal how the courts function.
The court must also consider less restrictive alternatives that protect the rights at issue. For example, to protect the defendant's right to a fair trial, it might not be necessary to withhold inquest materials; rather, in seating jurors for a trial, the court can ask whether potential jurors have learned about the content of such materials and remove anyone who says yes from the jury. Similarly, to protect privacy rights, it might be possible to redact specific information from the inquest materials rather than withhold them from public view entirely.
In order to allow interested parties time to file a motion showing good cause why the impoundment be continued, the SJC directed the Superior Court to wait ten days before providing the inquest report and transcript to the Globe. It remains to be seen whether such motions will be filed, and whether the Superior Court will decide that continued impoundment of the inquest materials is appropriate. We will continue watching this case closely.
