11-10-17 diorio brief filing to sjc

8/3/2019 11-10-17 Diorio Brief Filing to SJC

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COMMONWEALTH OF MASSACHUSETTSSUPREME JUDICIAL COURT

SUFFOLK COUNTY NO. SJC-11052

CHARLES DIORIO,Petitioner-AppellantV.

FIRST JUSTICE OF THE QUINCY DIV.OF THE DIST. COURT DEP'T,Respondent-AppelleeTRUSTEES OF BOSTON UNIVERSITY d/b/aWBUR-FM & OPENCOURT,Intervener

BRIEF AND ADDENDUM FOR THE PETITIONER/APPELLANTON RESERVATION AND REPORT OF THECASE BY THE SINGLE JUSTICE TO THE FULL COURT

JOHN FENNELBBO #666159ATTORNEY FOR PETITIONER/APPELLANTCOMMITTEE FOR PUBLIC COUNSEL SERVICESPublic Defender Division44 Bromfield StreetBoston, Massachusetts 02108(617) [email protected]

October, 2011.
mailto:[email protected]:[email protected]


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TABLE OF CONTENTS

TABLE OF AUTHORITIES iiiISSUES PRESENTED................................. 1STATEMENT OF THE CASE............................ 2STATEMENT OF FACTS .....-.......................... 3SUMMARY OF THE ARGUMENT 10ARGUMENT

I. THE TRIAL COURT JUDGE DID NOT PERFORMHIS AFFIRMATIVE DUTY TO MINIMIZE PRE-TRIAL PUBLICITY TO PROTECT DIORIO'SRIGHT TO DUE PROCESS OF LAW AND A FAIRTRIAL, VIOLATING ARTICLE 12 AS WELL ASTHE FIFTH, SIXTH, AND FOURTEENTH AMEND-MENTS 13A. The trial judge did not protectDiorio's right to a fair trial 13B. Turning off OpenCourt's cameraand recording device would notcontravene the press's firstamendment right of access tocourt proceedings 25

II. BY ALLOWING OPENCOURT TO BROADCASTLIVE FROM THE COURTROOM OVERDIORIO'S OBJECTION, THE TRIALCOURT JUDGE UNDERMINED DIORIO'SRIGHT TO THE ASSISTANCE OF COUNSELUNDER ARTICLE 12 AND SIXTH ANDFOURTEENTH AMENDMENT 29III. THE DECISION TO ALLOW OPENCOURTTO POST DIORIO'S HEARINGS ON THEINTERNET WAS AN ABUSE OF DISCRETIONBECAUSE THERE WAS GOOD CAUSE FORIMPOUNDMENT OF THE RECORDINGS ANDREMOVING THE RECORDINGS FROM THEINTERNET IS NOT "PRIOR RESTRAINT" 38


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A. The Quincy District Court isentangled with OpenCourt 38B. The proper analysis for whetherOpenCourt recordings should beremoved from the online archiveas "impoundment" analysis, not"prior restraint" analysis 40C. There was 'good cause' to redactDiorio's image from the OpenCourtrecording 42D. Even if "prior restraint" analysisapplies, the judge abused his

discretion in not preventingOpenCourt from archiving therecording online 44CONCLUSION 46ADDENDUM 47CERTIFICATE OF COMPLIANCE 63


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TABLE OF AUTHORITIES

CasesAlexander v. United States,

509 U.S. 544 (1993) 40Blum v. Yaretsky,

457 U.S. 991 (1982) 38Boston Herald, Inc. v. Sharpe,

432 Mass. 593 (2000) ' 39, 42, 43

Boston Herald, Inc. v. Superior Court Dep'tof the Trial Court,421 Mass. 502 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 27, 28

Burton v. Wilmington Parking Authority,365 U.S. 715 (1961) 38

Care & Protection of Edith,421 Ma ss. 703 (1996) . . . . . . . . '. . . . . . . . . . . . . . . . . . . 44 r 45

Commonwealth v. Amral,407 Ma ss. 511 (19 90) 16

Commonwealth v. Donovan,392 Mass. 647 (1984) 18

Commonwealth v. Downey,65 Mass. App. Ct. 547 (2006) 29-32, 35

Commonwealth v. Downey,58 Mass. App. Ct. 591 (2003) 29, 31, 35,

36Commonwealth v. Johnson,42 0 Ma ss. 458 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Commonwealth v. Jones,42 3 Ma ss. 99 (1996) . . . . . . . . . . . . . . .'. . . . . . . . . . . . . 18 r 19 , 23

Commonwealth v. Nepolitano,378 Mass. 599 (1979) 24


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Commonwealth v. Perkins,450 Mass. 834 (2008) 34Conway v. United States,852 F.2d 187 (6th Cir), cert. denied,488 U.S. 943 (1988) 27Fox TV, Inc. V. FCC,613 F.3d 317 (2nd Cir. 2010) 23Franks v. Delaware,438 U.S. 154 (1978) 17Gannett Co. V. DaPasguale,443 U.S. 368 (1979) / 13, 43George W. Prescott Publ. Co. v. Stoughton Div.of the Dist. Court Dep't of the Trial Court,428 Mass. 309 (1998) 44, 45Globe Newspaper Co. v. Commonwealth,407 Ma ss. 879 (1990) ...........................24, 25Hudson v. State,108 Ga. App. 192 (1963) 31, 32Hunt v. Blackburn,128 U.S. 464 (1888) 35In Re Globe Newspaper Co., Petitioner,729 F.2d 53 {lstCir. 1984) 13-16, 26In Re Sony BMG Music Entertainment, Petitioner,564 F.3d 1 (1st Cir. 2009),cert. denied sub nom.,Tenenbaum v. Sony BMG Music Entertainment,130 S.Ct. 126 (2009) 26, 27Lebron v. Nat'l R.R; Passenger Corp.,513 U.S. 374 (1995) 38Matter of a John Doe Grand Jury Investigation,

4 0 8 Mass. 4 8 0 ( 1 9 90) ...........................35Messiah v. United States,377 U.S. 201 (1964) 37


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Nixon v. Warner Communication, Inc.,435 U.S. 589 (1979) 14, 40Powell v. Alabama,287 U.S. 45 (1932} 34, 37Press-Enterprise Co. v. Superior Court,464 U.S. 501 (1984) 13, 17, 43,45Republican Co. v. Appeals Court,442 Mass. 218 (2004) ...........................42Reynolds v. Sims, .377 U.S. 533 (1964) 22

Richmond Newspaper, Inc. v. Virginia,448 U.S. 555 (1980) 26Rust v. Sullivan,500 U.S. 173 (1991) 40, 41San Francisco Arts & Athletics, Inc. v.United States Olympic Corom.,483 U.S. 522 (1987) 38Sheppard v. Maxwell,384 U.S. 333 (1966) 13United States v. Hastings,695 F.2d 1278 (11th Cir.),cert. denied, sub nom.Post-Newsweek Stations, Fla., Inc. v.United States,461 U.S. 931 (1983) 27United States v. Wade,388 u.S. 218 (1967) 17, 34Waller v. Florida,397 u.S. 387 (1970) 22Watts v. Indiana,338 U.S. 49 (1949) 35


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Constitutional Provisions

United States Constitution,Fifth Amendment. ............................... 1, 8, 10,13, 25, 29Sixth Amendment 1, 8, 10,13, 25, 29,

37, 44Fourteenth Amendment 1, 9, 10,13, 25, 29,

44Massachusetts Declaration of Rights,Article 12 1, 2, 8, 10,13, 25, 29,

44Other Authorities

United States District Court of Massachusetts,Rule 83.3 28Rule 83.3.2 28

Judicial Conference Committee on CourtAdministration and Case Management Guidelinesfor Cameras Pilot project in the DistrictCourts 28, 29Supreme Judicial Court Rule 1:19 9, 20, 21,34


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ISSUES PRESENTED

1. Whether the trial court judge abused his dis-cretion in allowing the broadcast of Diorio's imagefrom the courtroom when there is an identificationissue in the case, violating Diorio's right to dueprocess of law and a fair trial under the Fifth, Sixth,and Fourteenth Amendments to the United StatedConstitution as well as Article 12 of the MassachusettsDeclaration of Rights.

2. Whether the trial court judge abused hisdiscretion in allowing microphones that broadcast livecourtroom proceedings to the internet, intruding on theattorney-client relationship and violating the right toeffective assistance of counsel under the Sixth andFourteenth Amendments to the United States Constitutionas well as Article 12 of the Massachusetts Declarationof Rights.

3. Whether the trial court judge abused hisdiscretion in denying Diorio's motion that his imagebe removed from the recordings OpenCourt has in itspossession to protect his right to a fair trial underthe Sixth and Fourteenth Amendments to the UnitedStates Constitution as well as Article 12 of the


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Massachusetts Declaration of Rights.

STATEMENT OF THE CASECharles Diorio was arraigned in Quincy District

Court on July 5, 2011 (R.A. 39)1/. At arraignmentDiorio moved to turn off the camera and microphonesbroadcasting live images and audio from the courtroomto the internet (R.A. 29-33). The judge (Coven, J.)denied the motion (R.A. 33). On July 25, 2011, thejudge (Coven, J.) held a hearing on Diorio's motion tosuspend archiving the footage of Diorio's arraignmentonline and his renewed objection to the July 5, 2011broadcast (R.A. 40). The judge denied Diorio's motionin a written memorandum dated July 29, 2011 (R.A. 58-60; Add. 58-60) .

Seeking declaratory and injunctive relief, Diorioon August 3, 2011 filed a petition in the SupremeJudicial Court for the County of Suffolk pursuant toG.L. c.211, 3 (R.A. 159). He challenged the judge'srulings allowing OpenCourt to broadcast his July 5,2011 arraignment and July 25, 2011 hearing, and

YThe Addendum shall be signaled as "(Add. )". TheRecord Appendix will be cited as "(R.A. )".


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allowing OpenCourt to archive the footage online.Diorio sought two declaratory judgments: (1) a rulingthat the judge's decision allowing OpenCourt to recordthe arraignment and broadcast Diorio's image onlinewhen his attorney stated that identification would bean issue at trial was an abuse of discretion; and (2) aruling that the trial court judge abused his discretionby allowing OpenCourt to use the court recording systemmicrophones (R.A. 1-8). The specific injunctive reliefDiorio sought is an order to impound the recordings ofhis July 5, 2011 arraignment and July 25, 2011 hearing;or, in the alternative, that his image while arraignedat Quincy district court be redacted from any onlinefootage OpenCourt possesses (R.A. 1-8).

The single justice (Botsford, J.), in an orderdated September 16, 2011, reserved and reported thematter to the full bench of this Court (R.A. 161, 162-163; Add. 61-62). The same order paired this case withSJC-11035, Commonwealth v. Barnes (R.A. 163; Add. 62).

STATEMENT OF THE FACTSThe OpenCourt project

Quincy District Court lS unique in the Common-wealth because it has a camera positioned on the


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witness box that aims directly into the prisoners'dock, broadcasting the live images of criminal defend-ants over the world wide web (R.A. 121) .~I In additionto broadcasting video images, OpenCourt employs themicrophones in the first session used to create theofficial court recording to provide the audio feed forthe live broadcast (R.A. 84, 120, 126, 128). Thesemicrophones, located in the dock, at counsel table, andat sidebar, are very sensitive and can record thenormal courtroom whisper (R.A. 64-65). The judge inthe first session is able to control, through a toggleswitch on the bench, whether the images and sounds arebroadcast to the world (R.A. 109). The live broadcastsare archived in perpetuity on the internet for publicviewing in accordance with a policy developed byOpenCourt (R.A. 110).

OpenCourt is a pilot project supported by theradio station WBUR-FM and allowed into the courtroomwith the approval of at least some members of the

/See Exhibit 47. Exhibit 47 is the actual OpenCourtaudio and video recording of Diorio's July 25, 2011hearing, showing the camera's view of the courtroom andthe sensitivity of the microphones. Exhibit 47 isimpounded per the order of the single justice (R.A.161, 163; Add. 62).


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Massachusetts judiciary (R.A. 109). OpenCourtcollaborated with Quincy District Court personnel toinstall signs in the courtroom advising that a cameraand microphones are in use (R.A. 123). OpenCourt rantraining sessions for court personnel and members ofthe bar to discuss the project and air concerns aboutthe project (R.A. 58-59, 135-136; Add. 58-59).

In conjunction with input from its advisory board,OpenCourt produced guidelines for what it would notbroadcast or record (R.A. 109-111, 119). OpenCourt'sadvisory board is comprised of Federal and Massachusettsjudges, the president of the Massachusetts BarAssociation, a First Amendment scholar, and theMassachusetts Attorney General's Chief of VictimWitness Services (R.A. 107). No one on the OpenCourtadvisory board is recognizable as a member of thecriminal defense bar (R.A. 107).

Because of privacy concerns, OpenCourt has decidednot to broadcast G.L. c.209A restraining orderproceedings (R.A. 112). Initially there was somedissension about the 209A "decision," but eventuallythe judges in Quincy District Court agreed to followOpenCourt's policy of not broadcasting restraining


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order hearings (R.A. 122, 133). Judges in the firstsession at Quincy District Court therefore shuntrestraining order hearings out of first session and itsOpenCourt camera to another session (R.A. 44 ~11, 59,133; Add. 59).

OpenCourt began live broadcasting from QuincyDistrict Court on May 2, 2011 (R.A. 135). Once itbecame operational, both district attorneys and defenseattorneys began routinely objecting -- often jointlyto the posting of particular proceedings on theinternet (R.A. 136). On June 16, 2011, OpenCourt madeavailable to the public, for viewing over the internet,the archived footage of proceedings initially broadcastlive (R.A. 115).

OpenCourt's archives are not available to thepublic immediately after a live broadcast (R.A. 115).Instead, there is a two day delay between the livebroadcast and the online archiving (R.A. 115). Duringthis two day period "[t]he District Attorney's officeand other interested parties" may raise concerns withOpenCourt about particular aspects of recordings (R.A.110). Before viewing the archive online, members ofthe public must register with OpenCourt (R.A. 119).


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Registration requires a name, email address, andpassword (R.A. 123).

In addition to the live broadcast and archive, theQuincy District Court allows "live blogging" from thecourtroom (R.A. 121). Attendees a~e encouraged towatch court proceedings and provide real-time coverageby utilizing a connection to the internet (R.A. 121)OpenCourt employees also post to a Twitter accountoccasional announcements about court activity (R.A. 69-103) .The July 5, 2011 arraignment

On July 5, 2011, Diorio was arraigned in the firstsession of Quincy District Court, Justice Covenpresiding, for the following charges on docket number1156 CR 3548: armed assault in a dwelling, kidnaping,possession of a firearm without a license, witnessintimidation, furnishing a false name, and threatening(R.A. 25-26). On docket number 1156 CR 3550 Diorio wasarraigned on a charge of being a fugitive from justicefor a California allegation of a parole violationconcerning "sex offender requirements" (R.A. 27).Charges against Diorio also issued out of ChelseaDistrict Court for allegations of a carjacking and a


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shooting (R.A. 28).At the arraignment Diorio's attorney waived the

bail argument (R.A. 40, 44 ~7; Exhibit 48 Unoff. Trans.2) .~I Diorio's attorney asserted that there was a liveidentification issue in his case (Exhibit 48 Unoff.Trans. 2-4). She moved that Diorio be left downstairsout of viewl but the motion was denied (Exhibit 48Unoff. Trans. 4). Then Diorio's attorney orally movedto turn off the camera (Exhibit 48 Unoff. Trans. 4).

In a written motion also before the judge that-day, Dioriols attorney discussed the necessity of using

non-suggestive identification procedures if Diorio werebrought into the courtroom and the camera was notturned off (R.A. 30). Diorio contended that thebroadcast and archive violated his rights to dueprocess of law, a fair trial, and effective assistanceof counsel under Article 12 of the MassachusettsDeclaration of Rights as well as the Fifthl Sixth, and

l!Exhibit 48 is impounded per the order of the singlejustice (R.A. 160-161; Add. 62). Exhibit 48 is thecourt audio recording of the July 51 2011 arraignment.Provided with Exhibit 48 is Diorio's attorney'sunofficial transcription of the arraignment provided asan aid to the Court. This unofficial transcriptionwill be referred to as U(Exhibit 48 Unoff. Trans. I".


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Fourteenth Amendments of the United States Constitution(R.A. 29-33). Diorio also contended that the broadcastwould undermine the attorney-client privilege (R.A.31). Furthermore, Diorio contended that the OpenCourtbroadcast violated S.J.C. Rule 1;19(a) on cameras inthe courtroom (R.A. 30).

After the clerk read the charges Diorio faced, thejudge inquired into the basis for the fugitive fromjustice charge (Exhibit 48 Unoff. Trans. 7-8). Theprosecutor answered the judge's query (Exhibit 48Unoff. Trans. 8). According to the criminal complaint,the basis for the fugitive from justice charge was aparole violation for "sex offender requirements" inCalifornia (R.A. 27).The July 25, 2011 hearing

On July 25, 2011, Diorio had another hearing atQuincy District Court (R.A. 40). At this hearing thearraignment judge considered Diorio's motion to suspendarchiving the footage of his July 5, 2011 arraignmentand Diorio's renewed objection to the broadcast of thearraignment (R.A. 45-46, 58-60; Add. 58-60). At thishearing Diorio's attorney also moved to have theOpenCourt camera turned off or for the court to employ


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precautions to prevent a suggestive identification wereDiorio brought into the courtroom. See Exhibit 47.The judge would not turn off the camera or employprecautions to prevent an unnecessarily suggestiveidentification but did allow Diorio to remain down-stairs, out of the courtroom. See Exhibit 47. In thewritten motion before the court Diorio contended againthat the broadcast and archive of Diorio's July 5, 2011arraignment violated his rights to due process and afair trial under Article 12 of the MassachusettsDeclaration of Rights as well as the Fifth, Sixth, andFourteenth Amendments of the United States Constitution(R.A. 45-46). As a result of this July 25, 2011hearing the judge issued a memorandum explaining hisreasoning for denying Diorio's motion to turn off thecamera as well as why he would not forbid OpenCourt toarchive footage of the hearings (R.A. 58-60; Add. 58-60). The trial court judge wrote that ~[t]he questionpresented is whether there exists a substantiallikelihood of harmful consequences" (R.A. 59; Add. 59).

SUMMARY OF THE ARGUMENT

The judge abused his discretion by allowing


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OpenCourt to broadcast and archive online Diorio'sarraignment, violating Diorio's right to a fair trial.Additionally, the judge abused his discretion byallowing OpenCourt to use the court recording systemmicrophones because the sensitive microphones under-mined Diorio's right to effective assistance ofcounsel. Finally, the judge abused his discretion bynot ordering the removal from OpenCourt's onlinearchives Diorio's image at his July 5, 2011 arraignmentbecause it continues to erode his right to a fairtrial.

At arraignment the judge had an affirmative dutyto protect a criminal defendant's right to a fair trialbut did not perform his constitutionally mandated duty.Instead, he actively participated in broadcasting overthe internet Diorio's image at arraignment even thoughthe defense attorney told the court that identificationwas at issue. Allowing this prejudicial broadcast wasan abuse of discretion. See Argument I, post at 13-29.

OpenCourt employs the court recording systemmicrophones for its audio feed. These sensitive micro-phones which record courtroom whispers are at counseltable, at sidebar, and in the prisoners' dock. By


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causing a criminal defendant to forgo consulting withcounsel in order to prevent broadcasting privilegedinformation to the world, these microphones underminethe attorney-client relationship and thereby violatethe right to the effective assistance of counsel. Thejudge abused his discretion by not turning off thesemicrophones. See Argument II, post at 29-37.

Finally, the judge abused his. discretion byallowing OpenCourt to archive online, for publicviewing, images of Diorio's July 5, 2011 arraignment.Preventing OpenCourt from publishing these imagesonline does not constitute prior restraint becauseOpenCourt's entangled relationship with the judiciaryrenders the footage of Diorio's arraignment a courtdocument rather than a product of the free press.Furthermore, even if prior restraint analysis applied,Diorio's Sixth Amendment and Article 12 rights to afair trial constitute a compelling interest whichjustifies the de minimis restriction of preventing thepUblication of Diorio's image at arraignment. SeeArgument III, post at 38-45.


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ARGUMENTI.

THE TRIAL COURT JUDGE DID NOT PERFORM HIS AFFIRMATIVEDUTY TO MINIMIZE PRETRIAL PUBLICITY TO PROTECT DIORIO'SRIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL, VIOLATINGARTICLE 12 AS WELL AS THE FIFTH, SIXTH, AND FOURTEENTHAMENDMENTS.A. The trial judge did not protect Diorio'sright to a fair trial."No right ranks higher than the right of the

accused to a fair trial.u Press-Enterprise Co. v.Superior Court, 464 U.S. 501, 508 (1984). "Given thepervasiveness of modern communications and thedifficulty effacing prejudicial pUblicity from theminds of the jurors, the trial courts must take strongmeasures to ensure that the balance is never weighed

against the accused." Sheppard v. Maxwell, 384 U.S.333, 361 (1966). "To safeguard the due process rightsof the accused, a trial judge has an affirmative dutyto minimize the effects of prejudicial pretrialpublicity.U Gannett Co. v. DePasquale, 443 U.S. 368,378 (1979). "There is little to be gained by admittingthe public to pretrial proceedings in order to promotethe appearance of fairness if the very presence of thepublic makes a fair trial impossible." In Re GlobeNewspaper Co., Petitioner, 729 F.2d 47, 53 (1st Cir.


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1984) ."The media's claim of access derives entirely from

the public's right of access. The media have neither agreater nor a lesser right to be present than any othermember of the public." Boston Herald, Inc. v. SuperiorCourt Dep't of the Trial Court, 421 Mass. 502, 505(1995). Here the judge allowed OpenCourt intorestricted areas of the courtroom. He allowedOpenCourt personnel to operate a camera in the witnessbox (R.A. 121), permitted them to utilize the courtrecording system for audio reception (R.A. 120, 126,128), and controlled the entire production with anon/off switch on the bench (R.A. 109). This arrange-ment placed OpenCourt in a privileged position in thecourtroom and violated the constitutional requirementthat the press be afforded "no right to informationabout a trial superior to that of the general public."Nixon v. Warner Communications, Inc., 435 u . s . 589, 609(1979) .

No member of the public is allowed into therestricted area of the courtroom without leave of thecourt; no member of the public.is allowed in thewitness box unless testifying; no other member of the


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press is afforded this privileged position for a camera-- a straight, unobstructed shot across the judge'sbench into the prisoners' dock. See Exhibit 47. Acamera cannot occupy this position without privilegesbestowed by the court which are not afforded to anymember of the public. Placing the camera in thewitness box grants OpenCourt privileged access to thecourtroom, producing a product bearing the imprimaturof the court.

In In Re Globe Newspaper Co., Petitioner, supra,729 F.2d 47, the First Circuit upheld closure of a bailhearing to the press and the public where the govern-ment introduced evidence obtained from wiretaps. Id.at 59. Since the admissibility of wiretap evidence attrial would be challenged at a later hearing, publicdisclosure of the material at the bail hearing wouldimpair the defendants' fair trial right. The FirstCircuit could "scarcely imagine a stronger case forclosure than the one before [them], in which thedefendants are accused of participating in organizedcrime, the pretrial pUblicity is intense, and thematerial to which the press seeks access is extremelyprejudicial." Id.


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Here, like in In Re Globe Newspaper Co.,Petitioner, there had been intense pretrial publicity.YHere, like in that case, there was information used atthe bail hearing which would be prejudicial at trialand likely be the subject of a motion to suppress. Butunlike In Re Globe Newspaper Co., Petitioner, thedefense attorney here did not ask for full closure ofthe courtroom; instead, she moved that OpenCourt'scamera and audio recording system be turned off (R.A.29-33; Exhibit 48 Unoff. Trans. 4). This measure wasless than the full closure upheld on appeal in In ReGlobe Newspaper Co., Petitioner, and would still allowOpenCourt to attend while protecting Diorio's right toa fair trial.

Thi$ Court has used in camera hearings to'protectthe identity of confidential informants. In Common-wealth v. Amral, 407 Mass. 511 (1990), the defensewanted the name of a confidential informant because asearch warrant affidavit depended upon the informant's

!fIn denying the motion, the judge acknowledged the in-tense media attention the case had received in denyingDiorio's motion. See R.A. 59 n.3; Add. 59 n.3 ("Thedefendant does not request that the court issue anyorder to the Boston Globe, Boston Herald, QuincyPatriot Ledger, and other news organizations all ofwhich have reported on this case").


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credibility. This Court set forth guidelines for incamera hearings to determine when a defendant isentitled to a Franks hearing.~/ rd. at 525. Not onlyare the public and the press excluded from the incamera hearing, so too is defense counsel. rd.

Here it 1S not the identity of a confidentialinformant at issue but the identity of a criminaldefendant 1n possession of the highest right a litigantcan have, the right to a fair trial. Press-EnterpriseCo. v. Superior Court, supra, 464 U.S. at 508.

A major factor contributing to the highincidence of miscarriage of justice from mis-taken identification has been the degree ofsuggestion inherent in the manner in whichthe prosecution presents the suspect towitnesses for pretrial identification.United States v. Wade, 388 U.S. 218, 228 (1967)

Unnecessarily suggestive identifications arrangedby the Commonwealth are subject to exclusion to protectdefendants at trial. "Only a rule of per se exclusioncan ensure the continued protection against the dangerof mistaken identity and wrongful convictions [becauseof unnecessarily suggestive identification

~See Franks v. Delaware, 438 U.S. 154 (1978) (hearingat which the defense is allowed to challenge theveracity of an affidavit supporting an application fora search warrant) .


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procedures].n Commonwealth v. Johnson, 420 Mass. 458,472 (1995) .~I Even if an identification is notdeliberately arranged, a suggestive identification isnot admissible. Commonwealth v. Jones, 423 Mass. 99(1996) .

In Jones, a Commonwealth witness who testified attrial, identifying Jones, was summoned by Jones'scodefendant to a pretrial hearing. Id. at 101-102.While in the courthouse the witness saw Jones shackledto the codefendant for over an hour. Id. at 102.Several months later, during the same month as thedefendant's trial, the witness was summoned to courtagain, this time by the Commonwealth. Id.

[The witness] saw the defendant in custody ina courtroom in connection with charges thatshe knew were related to a robbery committedby Vietnamese men and two African-Americans.The defendant was shackled to one Vietnameseman whom she had seen at the Leominstermotel. Implicitly, the circumstancesindicated that the prosecution thought thedefendant had been involved in the crimes.

Id. at 110. The Court found that these viewing

i/Identification issues also implicate a defendant'sright to counsel. The right to counsel is violated ifpolice instigate a pretrial identification withoutinforming counsel, requiring suppression of the identi-fication. Commonwealth v. Donovan, 392 Mass. 647(1984) .


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conditions constituted "especially suggestive circum-stances,U warranting suppression of the witness'sidentification of Jones at trial. Id. at 109.

Here Diorio's arraignment in the first session ofQuincy District Court provided similar unnecessarilysuggestive circumstances and should not have beenbroadcast and archived to be freely available to anyprospective witness. Diorio was shackled in theprisoners' dock and had no say in whether he enteredthe courtroom.l! The clerk of the court read thecharges Diorio faced (Exhibit 48 Unoff. Trans. 7). Ona disputed question of fact, i.e., identification, thejudge simply ignored the defense attorney's contentionthat identification would be an issue at trial anddeferred to the prosecutor's derogation of such adefense (Exhibit 48 Unoff. Trans. 2-4).V The prejudiceto Diorio's case is unmistakable should a witness see

21Diorio had requested to remain in lock-up outside thecourtroom but was ordered by the judge to appear in thedock (Exhibit 48 U~off. Trans. 4).~/The defense attorney stated that she needed to domore investigation (Exhibit 48 Unoff. Trans. 4). Moreinvestigation revealed that there is an identificationin Diorio's Suffolk County case, not his Norfolk Countycase (R.A. 28). There should be no surprise that whatis unclear in the arraignment session of district courtbecomes more clear as time passes.


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the broadcast available for repetitive viewing: Dioriois the man identified by the prosecutor as the perpe-trator of the crimes the Commonwealth alleges.

S.J.C. Rule 1:19 anticipates issues where thedefendant's right to a fair trial outweighs the press'sright to have cameras in the courtroom. "A judgeshould not permit broadcasting, televising, electronicrecording, or taking photographs of motions to suppressor to dismiss or of probable cause or voir direhearings.H S.J.C. Rule 1:19(b). While not one of thehearings specified by Rule 1:19(b), the broadcasting ofDiorio's image at arraignment needlessly created theconditions to prejudice both the goal of non-suggestiveidentifications of Diorio and the eventual jury pool.The identification issue here substantially overlapswith the issues inherent in the hearings enumerated inRule 1:19(b) -- preventing the broadcast of unfairlyprejudicial material that will impair a fair trialand requires excluding cameras from arraignment toprotect Diorio's right to a fair trial.

In his memorandum of decision dated July 29, 2011,the judge wrote that his decision to allow thebroadcast and archiving was in accordance with S.J.C.


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Rule 1;19. While the judge did quote Rule 1;19(a)correctly the first time (R.A. 58; Add. 58),2/ when heapplied the law on the next page he left out the word"appears" from his a~alysis; "[t]he question presentedis whether there exists a substantial likelihood ofharmful consequences" (R.A. 59; Add. 59). Thisomission is not inconsequential, for the word "appears"lowers the burden on the party seeking to limit thenews media coverage. Based on what the defenseattorney presented to the judge, there was a liveidentification issue. Further inquiry confirmed theidentification issue, although it pertained to theSuffolk County case and not the Norfolk County case(R.A. 28). There certainly was enough informationpresented to the judge to produce the appearance of asubstantial likelihood of harm to Diorio's right to afair trial because of the identification issue.

In his decision the judge relied on the fact thatsubsequent investigation revealed that the identifi-cation issue only exists in the Suffolk County case,

V"A judge may limit or temporarily suspend such newsmedia coverage, if it appears that such coverage willcreate a substantial likelihood of harm to any personor other serious harmful consequence." S.J.C. Rule1;19(a).


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not the Norfolk County ones (R.A. 59; Add. 59). Thereis no good reason that Diorio's live identification inSuffolk County should be compromised by an arraignmentin Norfolk County: the same sovereign is prosecutingboth cases. "Political subdivisions of States --counties, cities, or whatever -- never were and neverhave been considered as sovereign entities. Rather,they have been traditionally regarded as subordinategovernmental instrumentalities created by the State toassist in carrying out state governmental functions.flWaller v. Florida, 397 U.S. 387, 392 (1970), quotingReynolds v. Sims, 377 U.S. 533, 575 (1964). NorfolkCounty and Suffolk County are instruments of theCommonwealth and derive their authority to prosecutecrimes as subordinates of the sovereign. There is noprovision in the law allowing for Diorio's right to afair trial in Suffolk County to end at the doorstep ofQuincy District Court.

Contrary to the judge's contention that "jurorvoir dire and cross examination of fact witnesses cancure any bias brought about by pretrial exposurethrough the viewing of televised or archived footage,fl(R.A. 59; Add. 59), this Court has noted that a


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prejudicial identification is not an error which crossexamination and jury instructions can easily remedy.See Commonwealth v. Jones, supra, 423 Mass. at 110("This is not a case in which cross-examination and ajudge's instruction concerning eyewitness identificationtestimony can fairly protect the defendant from theunreliability of [the witness's] identification").Moreover, the broadcast of an arraignment over theinternet could become a "v~ral video,Hlol influencingthe jury pool more than any local news broadcast fromthe pre-internet era. The potential for pretrialprejudice was and remains tremendous.

Finally, the judge wrote that the defense attorneycould have requested other remedies to reduce the pre-judice to Diorio, remedies purportedly less burdensometo the "media's right to broadcast" (R.A. 59; Add. 59).

If an arraignment does present the potential

ll/"The internet, too, has become omnipresent, offeringaccess to everything from viral videos to feature filmsand, yes, even broadcast television programs. Thenumber of suppliers of online video and audio is almostlimitless. As the FCC itself acknowledges,[c]hildren today live in a media environment that isdramatically different from the one in which theirparents and grandparents grew up decades ago. "FoxTV, Inc. v. FCC, 613 F.3d 317, 326 (2nd Cir. 2010)(citations, internal quotation marks, and parenthensesomitted) .


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to impact the identification of a defendantin an unrelated criminal proceeding, counselfor the defendant could have requested thatthe defendant be allowed to remain seated inthe prisoner dock and answer to the chargesthrough counsel and that other prisoners alsobe seated in the dock during the arraignment.This was not done in this case.

(R.A. 59 n.2; Add. 59 n.2)Here defense counsel, in a written motion that the

judge denied on July 5, 2011, discussed exactly whatthe judge requested (R.A. 30). Diorio's attorneyexplicitly cited the necessity of the court employingprecautions to prevent unnecessarily suggestiveidentifications as provided for by "Commonwealth v.Nepolitano, 378 Mass. 599, 608 (1979) (advising trialcourts that 'an effort must be made to eliminate any

unnecessary suggestiveness' during courtroom pro-cedures)U (R.A. 30). Following the Nepolitanoreference, the judge could have "require[d] that othersbe seated in the dock with the defendant.u Id. at 604n.8.

Moreover, it is not incumbent upon the defense tocraft, as Diorio's attorney did, a solution thatadequately balances the disparate interests. It isinstead the judge who must find a solution. "In anysituation in which the judge is considering closing all


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or some portion of the proceeding, he should decidewhether the goal of protecting against the disclosureof certain information might be achieved by some meansother than closure.ff Globe Newspaper Co. v. Common-wealth, 407 Mass. 879, 889 (1990).

It is of no consequence that the defense attorneydid not object to other press coverage of Diorio'sarraignment despite such a contention by the judge(R.A. 59 n.3; Add. 59 n.3). Diorio's attorney objectedto the only camera broadcasting images of Diorio in thecourtroom, i.e., OpenCourt.

In deciding to broadcast Diorio's arraignment andsubsequent hearing, the judge did not apply the properlegal standard. The judge's decision tokeep thecameras rolling while requiring Diorio to be present inthe courtroom was an abuse of discretion, violatingDiorio's Article 12 as well as the Fifth, Sixth, andFourteenth Amendment rights to due process and a fairtrial.

B. Turning off OpenCourt's camera andrecording device would not contra-vene the press's First Amendmentright of access to courtproceedings.The strength of the press's and public's First


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Amendment right of access to arraignments is less thana criminal defendant's right to a fair trial:

We believe ... that the interests of thepress and the public weigh less heavily atthis early point in the proceedings than theydo later, both because the tradition ofopenness at bail hearings is not as strongand because the press and the public willhave opportunities to examine the materialadmitted at those hearings. By contrast, theprivacy and fair trial interests of thedefendants are at their zenith during thebail hearings, since they have not yet had anopportunity to test the material admitted atthe hearings.In Re Globe Newspaper Co., Petitioner, supra, 729 F.2dat 59.

Requiring that cameras be turned off and pro-hibiting the recording of court proceedings does nottransgress the right of the press, enunciated inRichmond Newspapers, Inc., v. Virginia, 448 U.S. 555(1980), to attend court proceedings.

While the new technology characteristic ofthe Information Age may call for replottingof some boundaries, the venerable right ofmembers of the public to attend federal courtproceedings is far removed from an imaginedentitlement to view court proceedingsremotely on a computer screen. Because thereis no hint here that any portion of theproceeding was closed to the public, theRichmond Newspapers right is not in jeopardy.In Re Sony BMG Music Entertainment, Petitioners, 564F.3d 1, 9 (1st Cir. 2009), cert. denied sub nom.,


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Tenenbaum v. Sony BMG Music Entertainment, 130 S. Ct.126 (2009).

In In Re Sony BMG Music Entertainment,Petitioners, a federal district court judge allowed"gavel-to-gavel webcasting of a hearing in a civilcase./I Id. at 2. The United States Court of Appealsfor the First Circuit intervened, allowing a writ ofmandamus to stop the webcasting. In its ruling, theCourt stated that the district court judge's order,"which proposed to permit webcasting of a motionshearing in a civil case, was based on a palpablyincorrect Lnterpretation of D. Mass. R. 83.3." Id. at9. No "cognizable constitutional right of publicaccess to the courts" was transgressed by forbiddingcameras and recording devices. Id.

"Currently, there is no Federal constitutionalright to broadcast, photograph, or record any judicialproceeding or portion thereof. See, e.g., Conway v.United States, 852 F.2d, 187, 188 (6th Cir.), cert.denied, 488 U.S. 943, (1988); United States v.Hastings, 695 F.2d 1278 (11th Cir.), cert. denied subnom. Post-Newsweek Stations, Fla., Inc. v. UnitedStates, 461 U.S. 931 (1983)." Boston Herald, Inc. v.


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Superior Court Dep't of the Trial Court, supra, 421Mass. at 507 n.S.

Recent changes to D. Mass. R. 83.3 do not give anyreason to believe that there is a constitutional rightof the press to cameras in the courtroom.11! While theUnited States District Courts of Massachusetts areparticipating in a pilot program for cameras in thecourtroom, this program does not grant the press anyright of access. Furthermore, according to the pilotprogram guidelines, "[t]he media or its representativeswill not be permitted to create recordings of courtroomproceedings." Judicial Conference Committee on CourtAdministration and Case Management Guidelines for theCamera Pilot Project in the District Courts, ~ 5(c)(emphasis in original), available athttp://www.uscourts.gov/uscourts/News/2011/docs/CameraGuidelines.pdf (last visited Oct. 10, 2011).Additionally, the "[p]arties must provide consent tothe recording of each proceeding in a case." Id. at~ 2(a). If cameras depend on the parties' consent,

11iSee D. Mass. R. 83.3.2. ("the pilot program mustcomply with the program guidelines issued by theJudicial Conference Committee on Court Administrationand Case Management, pursuant to the pilot program") .
http://www.uscourts.gov/uscourts/News/2011/docs/CameraGhttp://www.uscourts.gov/uscourts/News/2011/docs/CameraG


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then camera access is not a right. Instead, the partieshave the right to refuse cameras in the courtroom.

Moreover, the federal pilot project only approvesthe use of cameras in civil cases, not criminal cases.Id. at C J[ 1(c). Finally, the 'federal pilot program doesnot produce live broadcasts. "The pilot recordings arenot simulcast; thus, the judge can choose not to postthe video for public view." Id. at C J[ 3 (a)(5). Nothingin the new -guidelines provides any reason to believethat the press has a federal constitutional right touse a camera to record courtroom proceedings.

II.BY ALLOWING OPENCOURT TO BROADCAST LIVE FROM THECOURTROOM OVER DIORIO'S OBJECTION, THE TRIAL COURTJUDGE UNDERMINED DIORIO'S RIGHT TO THE ASSISTANCE OFCOUNSEL UNDER ARTICLE 12 AND SIXTH AND FOURTEENTHAMENDMENTS.

In Commonwealth v. Downey, the defense attorneysagreed to wear microphones for Lion Television Limitedduring the Downey brothers' criminal trial. 65 Mass.App . ct. 547, 548 (2006) (hereinafter "Downey II") )1/

12/This case was the appeal after a evidentiary hearingordered by Commonwealth v. Downey, 58 Mass App. Ct. 591(2003) ("Downey I"). For clarity the cases shall bereferred to as "Downey I" and "Downey II", respectingtheir chronological order.


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While the trial judge did know that the courtroomproceedings were being filmed and recorded, id. at 549n.3, the judge was not aware of, and the defendants didnot consent to, the attorneys' wearing microphones.Id. at 548 n.2. If the microphones were not turned offattorney-client conversations were recorded. Id. at548. While the Appeals Court found that this arrange-ment gave the attorneys a conflict of interest, freeingthe defendants from having to prove specific prejudice,id. at 553, even without the conflict of interest theAppeals Court found a violation of the attorney-clientrelationship.

The Superior Court judge, however, withcommendable diligence, did not rest hisdecision exclusively on presumed prejudiceflowing from the attorneys' actual conflict.Instead, the judge delved deeper during theevidentiary hearing and, in extendedfindings, ruled that the recording plan, evenapart from the legally imposed presumption ofprejudice, in reality deprived the defendantsof their right to effective assistance ofcounsel.

Id. at 554.The trial judge found that "'there were times

during the course of the trial when [the defendants]felt intimidated by the microphones and therefore ...were not as forthcoming with their attorneys as they


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might otherwise have been.'" Id. Simply based on theintrusion of the microphones into the attorney-clientrelationship, the Appeals Court concluded that theattorney-client relationship was compromised.

In our opinion, both the risk and actualityof unauthorized disclosures of privilegedcommunications manifestly undermined theattorney-client relationship and theobligation of counsel to advance a vigorousdefense. Thus, there was a real and presentprospect that confidential information wouldbe, and was, in fact disclosed, piercing theUheart of the relationship of confidencebetween the defendant and his attorney."

Id. at 554-555, quoting Downey I, 58 Mass App. Ct. 591,595 (2003).

A case from Georgia has facts similar tb theinstant case. There a radio station's microphone wasplaced five feet from defense counsel's table andprevented the defendant from participating in herdefense, requiring reversal of her conviction.

The record shows that the microphone waswithin five feet of [the defendant's]counsel's table. It was so placed that itcould pick up the proceedings of the trial,and this court will take cognizance of thefact that the accused and her counsel wouldbe apprehensive that a microphone which wassensitive enough to pick up the voices ofwitnesses and the presiding judge would besensitive enough to pick up even whisperedconversations between them had within fivefeet of it. Under these circumstances theobjection of counsel for the defendant was


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well taken, and the allowance of themicrophone in the courtroom was the injectionof an element into the trial of the casewhich may have caused defendant and hercounsel to feel as if they had been placed ina strait jacket and which was calculated toprejudice the rights of the defendant to afair and impartial trial and to hinder thedefendant and her counsel in the conduct ofher defense. The overruling of her objectionthereto was error and requires the reversalof the judgment overruling the motion for newtrial.

Hudson v. State, 108 Ga. App. 192, 197 (1963).Here the microphones also subvert the attorney-

client relationship. Rather than simply employing theirown microphones to record the courtroom, OpenCourt isallowed to use the court recording system (R.A. 84,126, 128). These microphones, located at counseltable, sidebar, and in the prisoners' dock, are verysensitive (R.A. 64-65). Like the microphone in Hudsonv. State, the microphones OpenCourt employs pick up thestandard courtroom whisper (R.A. 64-65). Although notwired to Diorio's attorney without Diorio's permissionas in Downey II, supra, 65 Mass. App. Ct. 547, Diorioand his attorney were not afforded the chance to optout of a wired courtroom.

With such sensitive microphones broadcasting tothe internet, a client who has been properly instructed


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by counsel will remain silent in the dock. A clientwho has not been properly instructed would not know theextent the microphones capture what should be confi-dential conversations. Attorneys who do not regularlypractice in Quincy District Court or who have not spenttime determining the microphones' sensitivity willbreach confidentiality by not taking the proper pre-cautions, i.e., standing "with their backs up againstthe microphone attached to the dock railu (R.A. 64~4(A}}. The trial judge's own proposed measures forenabling confidential attorney-client conversationsbetray the pervasive intrusion of these microphones"suspend the proceeding or the parties ... positionthemselves so that their discussions are not recordedu(R.A. 59; Add. 59). Shackled prisoners do not have theability to position themselves in the courtroom toavoid a sensitive microphone wired to the dock.Practically there is little difference 1n the pervasiveintrusion of the OpenCourt microphones compared to themicrophone Downey's attorney wore; in both cases themicrophones render a criminal defendant unable toconsult confidentially with a lawyer during


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proceedings.U1While not addressing arraignments, S.J.C. Rule

1:19(c) recognizes the importance of preventing therecording of attorney-client conversations. UDuringthe conduct of a jury trial, a judge should not permitthe recording or close-up photographing or televisingof bench conferences, conferences between counsel, orconferences between counsel and client." Id. TheSupreme Court has recognized that the ability toconsult with counsel is no less important atarraignment. "[T]he period from arraignment to trial[is] 'perhaps the most critical period of theproceedings ...,' during which the accused 'requiresthe guiding hand of counsel.'" United States v. Wade,388 U.S. 218, 225 (1967), quoting Powell v. Alabama,287 U.S. 45, 57 and 69 (1932) (additional citations

U/The Court's holding in Commonwealth v. Perkins, 450Mass. 834 (2008) is not to the contrary. In Perkinsthe motion judge found that the defendant agreed tohave his attorney wired with a microphone and thuswaived the issue. Id. at 854-855. Furthermore, theCourt stated that \\[c]ounsel never should have agreedto this arrangement in the first instance, and, were itnot for the defendant's voluntary, knowing, andintelligent consent to the conflict of interest, a newtrial might be necessary." Id. at 855, n.16. Dioriqnever consented to the microphones in the courtroombroadcasting to the world.


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omitted) .~The attorney-client privilege 'is founded upon

the necessity, in the interest and administration ofjustice, of the aid of persons having knowledge of thelaw and skilled in its practice, which assistance canonly be safely and readily availed of when free fromthe consequences.'" Downey II, supra, 65 Mass. App.Ct. at 555-556, quoting Matter of a John Doe Grand JuryInvestigation, 408 Mass. 480, 481-482 (1990), whichquoted Hunt v. Blackburn, 128 U.S. 464, 470 (1888). Atarraignment, any competent attorney would prevent aclient from making unnecessary statements in opencourt. Cf. Watts v. Indiana, 338 U.S. 49, 59 (1949)(~[A]ny lawyer worth his salt will tell the suspect inno uncertain terms to make no statement to the policeunder any circumstances") (Jackson, J., concurring). Aclient's first meeting with an attorney at arraignmentmust be given protections similar to those S.J.C. Rule1:19(c) provides to defendants at trial.

Affording litigants a chance to ask OpenCourt forredactions from the video archives is not sufficient toprotect a defendant's interests (R.A. 110). TheAppeals Court acknowledged in Downey I that an arrange-


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ment whereby a media entity agrees to redact confi-dential attorney-client conversations is inadequate toprotect the attorney-client privilege.

Despite the promise by the BBC representativenot to use conversations between the defen-dant and his counsel in the program, the ar-rangement inevitably created the possibilitythat otherwise confidential conversationsmight be disclosed to the disadvantage of thedefendant. For example, if the defendantagreed to allow the BBC to record conversa-tions with his attorney, the defendant wouldlikely be unable to prevent their use by theprosecution against him at trial, if theyobtained the material by some other means.

Downey I, supra, 58 Mass App. ct. at 598-599 (footnoteomitted). Likewise, depending on OpenCourt's goodgrace to redact the online archive does not protect theattorney-client privilege.

But it is not just the microphones that underminethe attorney-client relationship. The OpenCourt cameraalso impinges upon the effective assistance of counsel.Because the judge would not stop the cameras on July25, 2011 or put other prisoners in the dock with Diorioto reduce the suggestiveness of his appearance in thedock, Diorio remained downstairs, unable to assist inhis defense.14/ As argued ante, 24-25, the law requires

~/Diorio's defense at this time included the right to(FOOTNOTE CONTINUED ON NEXT PAGE)


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the judge to find solutions that balance a defendant'sright to a fair trial with the press's right to reporton court proceedings. The Sixth Amendment right to theassistance of counsel should receive at least as muchprotection.

"[T]he Court [has] noted that' during perhapsthe most critical period of the proceedings ... that lSto say, from the time of their arraignment until thebeginning for their trial, when consultation, thorough-going investigation and preparation [are] vitallyimportant, ... defendant s ... [are] as much entitled tosuch aid [of counsel] during that period as at thetrial itself." Messiah v. United States, 377 U.S. 201,205 (1964), quoting Powell v. Alabama, 287 U.S. 45, 57(1932). Leaving Diorio downstairs in lockup so thatOpenCourt could broadcast live from the courtroomprevented him from meaningfully consulting andassisting his attorney at the July 25, 2011 hearing.

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)argue bail (R.A. 40).


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III.THE DECISION TO ALLOW OPENCOURT TO POST DIORIO'SHEARINGS ON THE INTERNET WAS AN ABUSE OF DISCRETIONBECAUSE THERE WAS GOOD CAUSE FOR IMPOUNDMENT OF THERECORDINGS AND REMOVING THE RECORDINGS FROM THEINTERNET IS NOT uPRIOR RESTRAINT.n

A. The Quincy District Court isentangled with OpenCourt.U[The Court has] held once, Burton v. Wilmington

Parking Authority, 365 U.S. 715 (1961), and [has] saidmany times, that the actions of private entities cansometimes be regarded as governmental action forconstitutional purposes.n Lebron v. Nat'l R.R.Passenger Corp., 513 U.S. 374, 378 (1995). uMostfundamentally, this Court has held that a government'normally can be held responsible for a privatedecision only when it has exercised coercive power orhas provided such significant encouragement, eitherovert or covert, that the choice must in law be deemedto be that of the [government] .,n San Francisco Arts &Athletics. Inc. v. United States Olympic Comm., 483U.S. 522, 546 (1987), quoting Blum v. Yaretsky, 457U.s. 991, 1004 (1982).

Here Quincy District Court has provided significantencouragement for OpenCourt in addition to allowing acamera in the witness box and the use of the courtroom


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microphones. While this Court has noted "that thepublic has a powerful interest in monitoring G.L.c.209A proceedings,n Boston Herald, Inc. v. Sharpe, 432Mass. 593, 608 (2000), the practice at Quincy DistrictCourt is to further OpenCourt's contrary policydecision by sending restraining order hearings toanother session where OpenCourt does not broadcast anddocument the proceedings (R.A. 133) .15/ OpenCourtpolicy is to not broadcast restraining order hearings(R.A. 110). Judges in Quincy District Courtaccommodate this editorial decision by sendingrestraining order hearings to another courtroom, awayform the OpenCourt camera, so that OpenCourt employeeswill not have to turn off the camera (R.A. 133).OpenCourt is not a member of an independent fourthestate reporting on courtroom proceedings; instead, thejudiciary in Quincy District Court is entangled withOpenCourt, shaping courtroom proceedings to matcheditorial decisions while allowing the use of court

li/As the reports on the different opinions of theOpenCourt Advisory Board demonstrate, the First Justiceof Quincy District Court changed his view on broad-casting restraining order hearings. Originally hewanted to broadcast them (R.A. 132), but he changed hismind to accommodate OpenCourt (R.A. 133).


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resources to produce a media product.The press has "no right to information about a

trial superior to that of the general pUblic.n Nixonv. Warner Communications, Inc., supra, 435 U.S. at 609.Here, contrary to Nixon v. Warner Communications, Inc.,OpenCourt has greater access than the public. The lackof meaningful separation between Quincy District Courtand OpenCourt shows OpenCourt's privileged positionthat has entangled it with the court.

B. The proper analysis for whetherOpenCourt recordings should beremoved from the online archive is"impoundmentn analysis, not "priorrestraintn analysis.Prior restraint analysis applies when the press is

prevented from publishing material in its possession."Temporary restraining orders and permanent injunctions-- i.e., court orders that actually forbid speechactivities -- are classic examples of prior restraint.nAlexander v. United States, 509 U.S. 544, 550 (1993).However, speakers entangled with the government can beprevented from speaking without invoking priorrestraint.

In Rust v. Sullivan, 500 U.S. 173 (1991), doctorsreceiving Title X funding for patients had knowledge of


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abortion and abortion providers. However, becauseTitle X specifically prohibited the use of the fundingfor counseling about abortion or referrals forabortions, id. at 178-180, the doctors were preventedfrom speaking about abortion when treating Title Xpatients. The Court reasoned that because the doctorswere seeing the patients only because of the Title Xfunding, the restrictions on speech were permissible.Id. at 196.

An analysis similar to Rust v. Sullivan applieshere. Without government funds the doctors could nottreat Title X patients; without Quincy District Court'scollaborative imprimatur OpenCourt could not producethe product it does. Just as the doctors werecontrolled by Title X when treating Title X patients,so too is OpenCourt enmeshed in, and nominallycontrolled by, the court. A_s the work product of acollaboration sanctioned by the court, the OpenCourtrecords are a court document.

There is no prior restraint in redacting a courtdocument that has been sitting in- a public file in theclerk's office. So too is there no prior restraint inredacting Diorio's image from the OpenCourt archived


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footage. Therefore "prior restraint" is not thecorrect analysis to determine whether the trial judgeabused his discretion in allowing OpenCourt to archiveDiorio's hearings. Instead, the judge's decisionshould be assessed in accordance with the impoundmentprocedure for court documents.

C. There was 'good cause' to redactDiorio's image from the OpenCourtrecording."The public's right of access to judicial records,

including transcripts, evidence, memoranda, and courtorders, may be restricted, but only on a showing of'good cause.'" Republican Co. v. Appeals Court, 442Mass. 218, 223 (2004), quoting Boston Herald. Inc. v.Sharpe, supra, 432 Mass. at 604. Cf. Republican Co. v.Appeals Court, supra, 442 Mass. 218, 223 n.B ("Whilethe Uniform Rules [on Impoundment Procedure] techni-cally do not apply to criminal proceedings, a similarbalancing is necessary with regard to the impoundmentof court records in all proceedings, civil orcriminal") .

There is a "good cause" exception in criminalcases that does not exist in civil cases -- the defen-dant's Sixth Amendment right to a fair trial that the


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trial court judge had an affirmative duty to protect.UTo safeguard the due process rights of the accused, atrial judge has an affirmative duty to minimize theeffects of prejudicial pretrial pUblicity.N GannettCo. v. DePasquale, supra, 443 U.S. at 378. UNo rightranks higher than the right of the accused to a fairtrial." Press-Enterprise Co. v. Superior Court, supra,464 U.S. at 508.

Diorio has a significant identification issue inhis Suffolk County case (R.A. 28) as explained ante, at17-20. Under an impoundment analysis, it was an abuseof discretion not to impound Diorio's image from thevideo recordings because this small step would be a deminimis infringement on the press and public's right ofaccess while preserving Diorio's right to a fair trial.

In Boston Herald, Inc. v. Sharpe, supra, the Courtrefused to impound affidavits "unlikely to add much ofanything to the risk of an unfair criminal trial." 432Mass. at 609. The Court compared the affidavits'content to existing media reports and concluded thatmost of the information had already been reported inthe press. rd. at 609 n.30. In contrast, the imagesOpenCourt possesses are unique and not repetitive of


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other media reports: OpenCourt operated the onlycamera in the courtroom able to broadcast and recordimages of Diorio. The redactions requested to preserveDiorio's fair trial right are of images invitingirremediably suggestive identifications.

Impounding the recordings of Diorio's hearingswould protect Diorio's right to a fair trial underArticle 12 and the Sixth and Fourteenth Amendments, anobviously "good cause." Because the recordings arecourt documents, impounding them does not constituteprior restraint, and the trial court judge abused hisdiscretion in allowing the footage on the internet.

D. Even if prior restraint analysisapplies, the judge abused hisdiscretion in not preventingOpenCourt from archiving therecording online.

"Any effort to restrict the press must be justifiedby a compelling state interest to protect against aserious and identified threat of harm." George w .Prescott Publ. Co. v. Stoughton Div. of the Dist. CourtDep't of the Trial Court, 428 Mass. 309, 311 (1998)."It is apparent that any order seeking to enjoin speechmust be based on detailed findings of fact that (a)identify a compelling interest that the restraint will


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serve and (b) demonstrate that no reasonable, lessrestrictive alternative to the order is available."Id., quoting Care & Protection of Edith, 421 Mass. 703,705 (1996).

Even assuming, arguendo, that the judge's decisionto allow OpenCourt to archive footage of Diorio'shearings is subject to prior restraint analysis,Diorio's image should still be redacted from thefootage because it is a de minimis restriction onOpenCourt to promote a compelling interest. Thecompelling interest that the restraint would serve isDiorio's fair trial right. "No right ranks higher [.J"Press-Enterprise Co. v. Superior Court, supra, 464 U.S.at 508. Allowing OpenCourt to archive footage ofDiorio's hearings online, without redaction, constitutesan abuse of discretion because this footage continuesto undermine Diorio's right to a fair trial.

There is no reasonable, less restrictive alter-native available than redacting Diorio's image from theOpenCourt online archive. As argued ante, 22-23,unnecessarily suggestive identifications cannot beremedied by a judge's instructions or cross-examination.


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CONCLUSION

For the reasons stated in Argument I, the trialcourt judge abused his discretion by allowing OpenCourtto broadcast Diorio's image at arraignment. For thereasons stated in Argument II, the trial court judgeabused his discretion by allowing OpenCourt to usemicrophones which undermine the attorney-client

relationship. For the reasons stated in Argument III,the recordings of Diorio's July 5, 2011 arraignment andJuly 25, 2011 hearing must be impounded or, in thealternative, his image must be redacted from theOpenCourt online archive.

Respectfully submitted,CHARLES DIORIOBy his Attorney,

BBO #666159COMMITTEE FOR PUBLIC COUNSEL SERVICESPublic Defender Division44 Bromfield StreetBoston, Massachusetts 02108(617) [email protected], 2011.
mailto:[email protected]:[email protected]


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ADDENDUM

United States ConstitutionFifth Amendment

No person shall be held to answer for acapital, or otherwise infamous crime, unlesson a presentment or indictment of a GrandJury, except in cases arising in the land ornaval forces, or in the Militia, when inactual service in time of War or publicdanger; nor shall any person be subject forthe same offence to be twice put in jeopardyof life or limb; nor shall be compelled inany criminal case to be a witness againsthimself, nor be deprived of life, liberty, orproperty, without due process of law; norshall private property be taken for publicuse, without just compensation.Sixth Amendment

In all criminal prosecutions, the accusedshall enjoy the right td/a speedy and publictrial, by an impartial jury of the State anddistrict wherein the crime shall have beencommitted, which district shall have beenpreviously ascertained by law, and to beinformed of the nature and cause of the accu-sation; to be confronted with the witnessesagainst him; to have compulsory process forobtaining witnesses in his favor, and to havethe Assistance of Counsel for his defense.Fourteenth Amendment, Section One

All persons born or naturalized in theUnited States, and subject to the jurisdic-tion thereof, are citizens of the UnitedStates and of the State whereirt they reside.No State shall make or enforce any law whichshall abridge the privileges or immunities ofcitizens of the United States; nor shall anyState deprive any person of life, liberty, or


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property, without due process of law; nordeny to any person within its jurisdictionthe equal protection of the laws.

Massachusetts Declaration of RightsArticle 12

No subject shall be held to answer forany crimes or offence, until the same isfully and plainly, substantially andformally, described to him; or be compelledto accuse, or furnish evidence againsthimself. And every subject shall have aright to produce all proofs, that may befavorable to him; to meet the witnessesagainst him face to face, and to be fullyheard in his defence by himself, or hiscounsel, at his election. And no subjectshall be arrested, imprisoned, despoiled, ordeprived of his property, immunities, orprivileges, put out of the protection of thelaw, exiled, or deprived of his life,liberty, or estate, but by the judgment ofhis peers, or the law of the land.

united States District Court of MassachusettsRule 83.3 Photographing, Recording and Broadcasting

(a) Photographing, Recording, and Broad-casting Generally Prohibited. Except asspecifically provided in these rules or byorder of the court, no person shall take anyphotograph, make any recording, or make anybroadcast by any means, in the course of orin connection with any proceedings in thiscourt, on any floor of any building on whichproceedings of this court are or, in theregular course of the business of the court,may be held.

(b) Exceptions.


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(1) Court Reporters. Official courtreporters are not prohibited from makingvoice recordings for the sole purpose ofdischarging their official duties. Norecording made for that purpose shall be usedfor any other purpose by any person.

(2) Presentation of Evidence. The courtmay permit the use of electronic orphotographic means for the preservation ofevidence or the perpetuation of a record.(3) Miscellaneous Proceedings. The courtmay permit the broadcasting, televising,recording, or photographing of investitive,

ceremonial, or naturalization proceedings.(4) File Review. The use of dictationequipment is permitted in the clerk's officeby persons reviewing files in that office.

Effective September 1, 1990; amendedeffective September 6, 2011.

Rule 83.3.2 Participation in Pilot ProgramNothwithstanding the general prohibition onphotographing, recording, and broadcasting ofdistrict court proceedings set forth in LocalRule 83.3, the District Court may participatein the three year pilot program establishedby the Judicial Conference of the UnitedStates in September 2010 (JCUS-SEP 10, pp. 3-4) to study the use of cameras in districtcourtrooms for civil case proceedings.Any recording and broadcasting conductedpursuant to the pilot program must complywith the program guidelines issued by theJudicial Conference Committee on CourtAdministration and Case Management, pursuantto the pilot program (available atwww.uscourts.gov) .Adopted September 6, 2011.


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Judicial Conference Committee on Court Administration and Case ManagementGuidelines for the Cameras Pilot Project in the District Courts

In September 2010, the Judicial Conference authorized a three-year pilot project toevaluate the effect of cameras in district court courtrooms, video recordings ofproceedings therein, and publication of such video recordings by making them availablethrough www.uscourts.gov, as well as participating courts' websites, ifso desired.(JCUS-SEP 10, pp. 3-4). The pilot is national in scope, consisting of up to 150 individualjudges from districts chosen to participate by the Federal Judicial Center (FJC)~ inconsultation with the Court Administration and Case Management Committee (CACM).

At the Conference's direction, the CACM Committee promulgated theseguidelines under which the pilot program must proceed. The Conference also authorizedthis Committee to periodically amend the guidelines, as necessary, to assist the pilotparticipants.

The Conference also directed the CACM Committee to request that the FJCconduct a study of the pilot, and the FJC will prepare interim reports after the first andsecond years of the pilot.1. General Provisions

a. Participating courts must abide by these guidelines as a condition forparticipating in this pilot program. These guidelines will remain in effectfor the duration of the pilot, unless changed by the Conference or theCACM Committee acting on its behalf.

b. Only courts participating in the pilot program may record court proceedingsfor the purpose of public release.

c. The pilot is limited to civil proceedings in which the parties have consentedto recording.

d. Courts participating in the pilot must amend their local rules (providingadequate public notice and opportunity to comment) to provide anexception to the Judicial Conference ban on recording for judgesparticipating in the pilot consistent with the guidelines.

e. It is not intended that a grant or denial of a request to record a proceedingbe subject to appellate review insofar as it pertains to and arises under theseguidelines, except as otherwise provided by law,
http://www.uscourts.gov%2C/http://www.uscourts.gov%2C/


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f. Courts participating in the pilot will record or control the recording ofproceedings. Recordings by other entities or persons, unless hired by orunder the control of the court, are not allowed.

g. Courts participating in the pilot program wiJI be expected to cooperate withthe FJC and the CACM Committee in collecting study-specific data neededby the FJC to evaluate the pilot project on behalf of the CACM Committee.

2. SelectionofCasesfor VideoRecordinga. The presiding judge will select cases for participation in the pilot, although

parties to a case or the media may request video recording of theproceedings. Participating judges should consider recording different typesof proceedings (e.g., trial and non-trial proceedings; a variety of case types;proceedings of varying sizes such as hearings, large cases, and multidistrictlitigation; and proceedings with varying levels of expressed public interest).

b. Under any circumstances, proceedings may not be recorded without theapproval of the presiding judge.

C. Parties must provide consent to the recording of each proceeding in a case.Consent to the recording of one proceeding in a case will not be construedas consent to any other proceeding in a case.

d. The court may(I ) establish a procedure for obtaining party consent to the recording of

a proceeding selected for the pilot, including a time frame by whichconsent must be given; and

(2) in its discretion, hold a hearing to address objections by parties,witnesses, or others to the recording or posting of a recording forpublic access. Such hearings should not be recorded.

e. Using forms provided by theFJC, courts should gather data on and report tothe FJC on the consent process, including which parties did not provideconsent and the reasons why they did not consent.

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3. Cameras and Equipmenta. Judges participating in the pilot should use the following equipment

configuration for recording proceedings:(I) Optimally, there should be at least three but no more than four

cameras with microphones to record the proceedings in thecourtroom. The cameras should be inconspicuous and fixed on thejudge, the witness, the lawyers' podium, and/or counsel tables.

(2) The security cameras in the courtroom should not be used to recordthe proceedings for the pilot.

(3) There should also be a feed from the electronic evidence presentationsystem.

(4) The recording equipment should transmit the camera inputs to aswitcher that incorporates them onto one screen. The recordingequipment also should include an encoder to record the file forposting.

(5) The presidingjudge should have a switch or be able to direct staff tostop a recording if the judge deems it necessary. The pilotrecordings are not simulcast; thus, the judge can choose not to postthe video for public view.

b. The Administrative Office will develop technical guidelines for the digitalvideo recording equipment and will provide those guidelines to the courtsselected to participate in the pilot.

c. The Administrative Office is authorized to provide limited funding forequipment as well as technical support to courts participating in the pilot.Participating courts are discouraged from purchasing new equipment. Aparticipating court is encouraged to use its existing recording equipment solong as the equipment meets the requirements of the pilot. The court shouldcontact the Administrative Office's Court Administration Policy Staff torequest assistance and/or online/distance training for court personnel to usenew or pre-existing equipment.

4. Managing the Recording

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a. A presiding judge may refuse, limit, or terminate the recording of an entirecase, portions thereof, or testimony of particular witnesses: in the interestsof justice; to protect the rights of the parties, and witnesses, and the dignityof the court; to assure the orderly conduct of proceedings; or for any reasonconsidered necessary or appropriate by the presidingjudge.

h. The fol1owing must not be recorded:(I) Privileged communications between the parties and their attorneys,

non-public discussions between attorneys, and sidebar conversationsbetween attorneys and the presiding judge, without the expresspermission of the judge.

(2) Jurors or alternate jurors while in the jury box, the courtroom, thejury deliberation room, or during recess, or while going to or fromthe deliberation room at any time. Coverage of the prospective juryduring voir dire is also prohibited.

c. The court should remind all persons present in the courtroom that arecording is taking place, so as to limit noise, side conversation, and otherdisturbances.

d. Nothing in these guidelines will prevent a court from placing additionalrestrictions, or prohibiting recording or broadcasting in designated areas ofthe courthouse.

e. The court should help ensure that personal information covered by Fed. R.Civ. P. 5.2 and the Judicial Conference privacy policy not be uploaded forpublic view, including providing warnings to attorneys, parties; witnesses,and jurors about disclosing confidential and personal information.

f. If security concerns arise, the judge might consider consulting with theUnited States Marshals Service regarding the video recording of the judge.

5. Operating the Equipmenta. A court employee, such as a courtroom deputy, or a private contractor

controlled by the court, must control the recording equipment. TheAdministrative Office will provide online/distance training to existing courtpersonnel on operating the recording equipment and handling the digital

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files. Courts are also encouraged to seek the assistance of court personnelfrom other districts who have experience with the recording equipment.

b. In order to control the costs of the cameras pilot program, courts arediscouraged from contracting with a private vendor for purchasing,. installing, and operating the necessary equipment. If a court finds itnecessary to contract with a private vendor, such a vendor must be underthe authority and control of the court, including any recording activity, anyfiles created, and the posting of recordings for public access. Moreover, thecourt should contact the Administrative Office's Court AdministrationPolicy Staff for assistance in locating and contracting with the vendor.

c. The media or its representatives will Dot be permitted to create recordingsof courtroom proceedings,

6. Storage and Accessto Recordingsa. It is preferable that recordings of proceedings should be broken down into

one- to four-hour increments (shorter time-frames are preferable due to thesize of these digital files), but only as resources and equipment permit,Unless the presiding judge deems otherwise, recordings of courtproceedings should be made publicly availabJe within a few hours.Recordings should be made according to the following procedures:(1) Recordings of court proceedings will be stored on a national server

(www.uscourts.gov) to prevent burdening the operations of localcourt automation systems and to provide data to the FJC for therequired study. Courts may also maintain a link to their recordingson their public website. Regardless of how the link is accessed, allaccess wil1 be tracked on the judiciary's video hosting service.

(2) The judiciary's video hosting service w i 1 1 provide a unique, stableURL for use on www.uscourts.gov and on a court's own website.

h. The Administrative Office will prepare an educational instructional video toassist the courtroom deputy and court staff regarding publishing the fiJe.

c. The court should be mindful of protecting sensitive and private informationand of Judicial Conference requirements regarding transcripts in civil

5
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proceedings. The court may wish to consider creating a procedure bywhich the parties may request that the recording, or a portion thereof, not bemade publicly accessible due to privacy concerns.

d. In the event that the presiding judge decides not to make the recordingpublicly available, the judge must document) using the forms provided bythe FJC, the reasons for the decision and send that information to the FJC.

e. The decision to upload the recording is final, and the recording willautomatically be made available to the public through a national server(www.uscourts.gov)and.atthecourt.sdiscretion. through a link on itspublic website.

f. The digital recordings emanating from the pilot (as well as any transcriptsmade from the recordings) are not the official record of the proceedings,and should not be used as exhibits or part of any court filing.

g. The court may wish to designate certain court personnel to coordinatemedia questions, and confer with the Administrative Office's Office ofPublic Affairs in handling those requests.

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S.J.C. RULE 1:19. CAMERAS IN THE COURTS.A judge shall permit broadcasting, televising,electronic recording, or taking photographs ofproceedings open to the public in the courtroom by thenews media for news gathering purposes anddissemination of information to the public, subject,however, to the following limitations:(a) A judge may limit or temporarily suspend such newsmedia coverage, if it appears that such coverage willcreate a substantial likelihood of harm to any personor other serious harmful consequence.(b) A judge should not permit broadcasting, televising,electronic recording, or taking photographs of hearingsof motions to suppress or to dismiss or of probablecause or voir dire hearings.(c) During the conduct of a jury trial, a judge shouldnot permit recording or close-up photographing ortelevising of bench conferences, conferences betweencounsel, or conferences between counsel and client.Frontal and close-up photography of the jury panelshould not usually be permitted.(d) A judge should require that all equipment is of atype and positioned and operated in a manner which doesnot detract from the dignity and decorum of theproceeding. Only ODe stationary, mechanically silent,video or motion picture camera, and, in addition, onesilent still camera should be permitted in thecourtroom at one time. The equipment and its operatorusually should be in place and remain so as long as thecourt is in session, and movement should be kept to aminimum, particularly, in jury trials.(e) A judge should require reasonable advance noticefrom the news media of their request to be present tobroadcast, to televise, to record electronically, or totake photographs at a particular session. In theabsence of such riotice, the judge may refuse to admitthem.(f) A judge may permit, when authorized by rules ofcourt, the use of electronic or photographic means forthe presentation of evidence, for the perpetuation of arecord, for other purposes of judicial administration,or for the preparation of materials for educational


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purposes.(g) A judge should not make an exclusive arrangementwith any person or organization for news media coverageof proceedings in the courtroom.(hl Any party seeking to prevent any of the coveragewhich is the subject of this Rule may move the courtfor an appropriate order, but shall first deliverwritten or electronic notice of the motion to theBureau Chief or Newspaper Editor or Broadcast Editor ofthe Associated Press, Boston, as seasonably as thematter permits. The judge shall not hear the motionunless the movant has certified compliance with thisparagraph; but compliance shall relieve the movant andthe court of any need to postpone hearing the motionand acting on it, unless the judge, as a matter ofdiscretion, continues the hearing.(i) A judge entertaining a request from any news mediumpursuant to paragraph (e) may defer acting on it untilthe medium making the request has seasonably notifiedthe parties and the Bureau Chief or Newspaper Editor orBroadcast Editor of the Associated Press, Boston.(j) A judge hearing any motion under this rule mayreasonably limit the number of counsel arguing onbehalf of the several interested media.


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C OM M ON 'N EA LT H O F h1 AS SA CH US ET TST R1 A L C O UR T D E PA RT M El';TQUINCY mSTRlCT COURTDOCKET 1'-:0. 1156 CR 3548: i156CR 3550

C OM M ON WE AL TH O F M ASSA CH USE TT S

CHA RJ. .S mOPJOMEMORA~DUM

T his ca se is b efore the co urt on th e defe ndan t's m on on to susp en d the autho riz ation 10 allowthe recording and archiv ing of 'proceedings involving t hi s defendant . The defendant cites to severalprovision s of the M assach usetts D ecla ration of Rights an d the U nited S tates Constitution

T he cou rt begin s w ith the rec ogn ition that pursuant to S uprem e J udicial C ourt Rule 1 : 19>ajudge "shall permit" th e "broadcasting, t el evi sing: [Q]r e lec tron ic recording ... of proceedings open1 :0 the public in the courtroom by the news media." The mandate of the rule recognizes that therecording is "for new s gatbering purposes and dissem ination of the inform ation to the public." TheJ 1J J er ec og niz es th at th e p ub lic sh ou ld h av e th e g re ate st a cc ess to th e proceedings in a courthouse ascan be made available. The public is informed of the court's activities through either liveb ro ad ca stin g o r th ro ug h th e dissemination o f e le ctro nic re co rd in gs. T he d isse min atio n o f e le ctro nicrecordin gs is itself the disse min ation of archived footag e.

T he S up re me J ud ic ia ! C ou rr h as , h ow ev er, placed lim its on w hen m edia coverage is allo wed .S pe cifica lly, p rocee din gs regardin g "m otio ns to suppress or dism iss or of probable cau se or v oir direhearings=are not to be "broadcastl], televisjed]. [ojr electronic recordled]." Rule l:!9(b). Further,a Judge should disallow or lim it the n ew s m edia from covering a proceeding "if it a pp ea rs th at s uc hcoverage will c re ate a su bsta ntia l lik elih oo d o f harm to a ny p erso n o r o th er h arm fu l c on se qu en ce s. "

Rule 1: 19 and its broad recognit ion of the right of th e public to be informed about courtactivities that are o pen to the public a ddresses the defen dan t's constitutional con ce rn s. T his rule b asbeen in effect since 1 99 8. T he court is unaw are of an y successful challenge w its constirunonality.

T hat the recording of the proceedings has an audio component does not create a substantiallikelihood of harm , Since 1 975 audio recording devices have been used in th~ district court, See D i sLCt. Initial R,Cri~~.l 1I (efIef!iyrtJ~l> 1975) now covered by Dist. Ct. Special R. 21 i.Signs areposted in this c!&t~~ f l i : i t s~ssidHlthY~)11eproceedings ar e being recorded. They are posted in frontof the m i c l ' O p h c n e 5 ~ 1 f c i j t , J ~ e . k m t i f m e r ' s dock. The court has also con ducted training at the request

;. M~~drN,I,.!;!W iH ~o '\19n01)Y!!.LS1J.~! I" .~ ~_-:-/,, ~ -_ .:: I,~


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o f a tto m ey s to d em o ns tra te th e ra ng e w he re m ic ro ph on es w ill re co rd c on ve rsa tio ns. ' I f t he n ec ess ityof confiden tial com munication betw een defense counsel and a defendant arises; the court and thep artie s are c ap ab le o f d ea lin g w ith th e situa tio n. T he c ourt ca n suspe nd the p ro ce ed in g o r th e pa rtiesm ay sim ply w ish to position them selves so that their d iscussions are not recorded. A ddition ally,juror voir d ire and cross exam in ation of fact w itnesses can cure an y bias brought about by pretrialex posure throug h th e view in g o f telev ise d o r a rc hive d fo otag e.

O f course, the court is aw are that the overriding con cern of the ju di ci ar y i s to p ro vi de duep ro ce ss. W h ere is su es o f id en tific atio n a re o f c on ce rn . it is ap prop riate to m ake in quiry a nd b alan cethe fac tu al a sse rtion s against the media's right to broadcast an d the. public's interest in thedisse min ation o f th e co urt's activitie s. T he qu estion presen ted is w he th er the re e xists a sub stan tia llikelihood of harm ful con sequences. T his an alysis is a regular practice in this court. C am eras havebeen turned off or crim in al arraignm ents directed to other courtroom s w here a legitim ate issue ofiden tifica tion h as be en ra ise d. R ule 1 : 19 g uide s the co urt?

In th is c as e, th e defend

11-10-17 diorio brief filing to sjc

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