WEBVTT
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SJC-13551.
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Trustees of Boston University et al
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versus the Clerk Magistrate of the Cambridge District Court.
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Okay, we'll start with Attorney Pyle.
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(Pyle clears throat)
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May it please the court, Jeffrey Pyle for WBUR,
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the Boston Globe and NBC10.
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The Clerk Magistrate did not abuse her discretion
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by deciding that these show cause hearings
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should be held open to the public.
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The Eagle Tribune case and the complaint standards say
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that it's appropriate to open show cause hearings
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where two conditions are met.
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An application is one of special public significance
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and legitimate public interests
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outweigh the accused's right of privacy.
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Both prongs were clearly met here,
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and her decision to open the hearings was
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therefore not an abuse of discretion or error of law.
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There are three main reasons why that's the case.
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First, these applications derive from a federal indictment
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against an interstate brothel operation.
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These are not your typical district court charges.
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The indictment attracted national news coverage.
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Counsel, can I interrupt you for a second
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to ask a question just about the facts?
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When did the interveners get notice of the request?
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I do not believe, your Honor, that the record is clear
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on that because it's my understanding
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the notice would've come from the clerk.
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There's no file, there's no document
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in the record showing precisely when each
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of the John Doe parties got notice.
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Some of them stated in their applications
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that it was sometime in January as, to my recollection.
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And I'm sorry, so when was the request made
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to open the hearings?
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The request was made to open the hearings
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in late December, I believe just before Christmas.
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Were they given an opportunity to be heard?
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Not in the sense of going before the clerk
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and asking that the hearings be maintained enclosed--
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Right.
In a closed case.
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So I also didn't see any, I mean,
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thank you for whoever it was who submitted RA35
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because I noticed it, and I was concerned about that.
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Thank you, your Honor.
I take it that that request,
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as far as we know, was never received by any of the Does?
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As far as we know--
At least the record
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doesn't show it.
The record doesn't show
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that it would've been,
We couldn't assume
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that they did.
Correct.
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We can't assume also that they received notice
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through some other means, correct?
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Other than perhaps some inference drawn
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from their own papers.
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At whatever time they were notified
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of the scheduling of the Clerk Magistrate's hearing.
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I suppose one could assume
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they received some indication at that point.
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I didn't see anything on the docket.
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No, your Honor--
Well, the docket
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is the official record.
Correct.
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Right, and to the extent that there are any individuals
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who may have received some form of actual notice,
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let's call it.
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We can't say, I take it, that all of them did?
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Well, it depends on what time, I think,
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what timeframe we're talking about here.
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The request for access was made just before Christmas.
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That was granted, I believe, just after Christmas,
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the request for the applications
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was made on or around December 27th.
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By early January, we filed our application
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for emergency review.
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I believe the date there is January 12th.
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Right, so let's talk about though before the motion
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to open the hearing was allowed.
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Do we have any information in the record
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that the Does were given notice
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and an opportunity to be heard?
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No, your Honor, we did not.
Okay.
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And my second follow up question for that is,
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everyone seems to treat all of the Does
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as a clump as though every individual,
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putative defendant or defendant charged person
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as rights and interests are identical as a class.
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And I'm just unaware of any criminal case
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where that has been handled in that way.
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Can you point me to one?
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We've pointed to Wanda in the record,
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it was a single justice appeal involving
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the opening of a clerk's hearing
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where there was a large melee somewhere up
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on the North Shore and the single Justice treated all,
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I believe, eight defendants in that case the same
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and open up the clerk's hearings for them all as a group.
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And that is not inappropriate or an abusive
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of discretion under the standard that you have before you,
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where the court has to look at the general balancing,
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the privacy interest, yes, of individuals
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against a general public interest in the incident itself.
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And in this case you have--
Well, it might be if,
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I mean in this case, the argument is
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that the balancing entails consideration
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of the defendant's status, occupations, things like that.
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So why wouldn't it be the case when those types
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of considerations are at issue that you would need
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to have some kind of particularized treatment?
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Well, there's no indication in the record
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that the Clerk Magistrate did not review
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the applications themselves when deciding
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whether or not to open up the hearings.
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And in that sense, the Clerk Magistrate,
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I think could be presumed to have given some consideration
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to each of the applications when she decided
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to open them all up.
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Yes, she treated them.
Why would we make
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that presumption or assumption
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when she doesn't make a finding to say that she did that?
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We know that all of the applications were also given
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to the single justice during the proceedings
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to decide whether or not she abused her discretion.
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The single justice had those applications.
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But it would seem to me that in reviewing this
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under an abuse of discretion or error of law standard,
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unless there has to be a showing of an abusive discretion
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and the showing that she had all the applications,
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I don't think that one would necessarily presume
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that she didn't review the applications
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that she had in her file or that the single justice
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would not have reviewed the applications as well.
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She didn't make a finding either that she did,
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nor did she make a finding to say
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that she based her decision upon her review of those.
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How do we get to that conclusion you're asking us to draw?
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It strikes me, your Honor, that one would presume
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that a clerk magistrate faced with a request
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to open up the hearings would look at the applications
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before deciding whether or not to open up
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The hearing, it seems like--
Is her differential
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treatment of the applications suggestive
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that she has done that type of individualized consideration?
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'Cause she's treating the complaints differently
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because of the possibility of individual mistakes.
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Well, certainly she is treating the complaints differently
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And the question being, of course,
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the decision to open up the hearings happened
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before the decision to deny access to the complaints.
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But it does strike me as a safe assumption
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that the Clerk Magistrate would've looked
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at the complaints in both instances,
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and returning again to the standard of review
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of abuse of discretion or error of law.
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When you look at the factual circumstances
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of these accused, they are alleged
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to have supplied the demand side
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for an interstate brothel operation
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that resulted in a federal indictment--
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I see your point on that, and I think we understand,
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do you wanna address the differential treatment
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of the complaints?
Yes, thank you, your Honor.
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You wanna affirm the first part,
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but you wanna reverse the second part?
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While you're thinking about the answer to that,
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I guess I'm just wondering practically speaking,
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why you would've appealed that order
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or her decision not to release the complaints
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or the names when at the hearing,
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you would have gotten that information anyway?
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Well, your Honor, we have a lot
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of experienced journalists who work for the Globe
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and for WBUR who have attended clerk's hearings before
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and have a lot of experience with
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how they operate in practice.
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And the concern was that when you go to a hearing,
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sometimes a name will get called out,
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say John O'Brien and maybe John O'Brien is there
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in the hearing room, or maybe he's not,
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you're not required to be there in a clerk's hearing.
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The Clerk Magistrate then said, okay,
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a complaint shall issue.
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And then that's the only information
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that anybody attending the hearing would have.
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You wouldn't be able to report which John O'Brien
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of the many that exist in the greater Boston area
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was charged with the crime.
But once the complaint
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issues then you are in a different regime, aren't you?
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Because now there isn't a complaint,
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probable cause has been found,
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and presumably then the records are open?
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Well, presumably after some period of time
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when the paperwork is processed,
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then maybe some days later there would be
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some release of documents--
So yes, they'll be open
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because of the limits of reality, it won't be instantaneous,
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but why would it be a requirement that you get notice
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a day before the day of, as opposed to attending
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the hearing and then having the corrections
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of any errors in John O'Brien's name
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be corrected at that point?
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Well, when you look at the First Amendment
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in common law access cases, and I recognize
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this is not a First Amendment or common law case.
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They talk about how important it is
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that news media access be simultaneous
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with the actual event in court.
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Delayed access is not the same as contemporaneous access--
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Right, but you have the contemporaneous access
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to the hearing.
To the hearing,
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but the concern again was it would be
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in some cases almost an anonymous hearing
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where you would not know exactly
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which person was actually charged.
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And what the news media, of course wants
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to do is inform its readers--
Because of an inability
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to comprehend the name called is that--
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In the case of a very common name,
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you wouldn't be able to distinguish
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who was actually charged without access
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to things like the address and the city
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where the person comes from.
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And also, there are some circumstances where the facts
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that underlie probable cause may not be completely recited
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in open court such that the news media wouldn't be able
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to understand exactly what the reason
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for the probable cause determination was.
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There could be some parts of the police report,
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for example, that are skipped over and not discussed.
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And especially in the case of an accused party
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who doesn't show up, there wouldn't necessarily be a need
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for the police officer to recite
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every single last word of the police report.
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Can I ask, in your briefs, you criticize
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the Clerk Magistrate for not allowing sort
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of a last minute distribution of the complaints.
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Did you even argue that to her?
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Well, your Honor, based on the way things happened
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procedurally, there was no occasion
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to argue that to her at the time
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Because--
Or brief it to her.
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Because the hearings were scheduled
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to be heard very shortly
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after we made the request for the complaints.
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And then when we filed our single justice application
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on January 12th, our information was
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they would be held on January.
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So we would've gotten those applications
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just before the hearing.
And here we are in September
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And here we are in September
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because now the matter was stayed
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after we filed our application and after we filed our motion
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the underlying Clerk Magistrate's hearings
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were stayed pending the outcome of this access question.
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But the standards that govern applications
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for criminal process are the same
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as those that govern access to the hearing.
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The complaint standards say that they are the same standards
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and this court has treated them the same in the global case.
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Well, it's a balancing of interest,
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privacy and transparency.
In both cases, yes.
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And she does a nuanced analysis
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of why we should treat the complaints differently.
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That there may be errors in them that could be corrected,
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00:12:43.740 --> 00:12:47.040
that they would be released ahead of time,
266
00:12:47.040 --> 00:12:51.870
and then the people affected wouldn't have any chance
267
00:12:51.870 --> 00:12:54.090
to respond, but in a hearing
268
00:12:54.090 --> 00:12:55.290
they would have a chance to respond.
269
00:12:55.290 --> 00:13:00.210
So she does a balancing of those interests carefully.
270
00:13:00.210 --> 00:13:03.180
Can we really find that's an abuse of discretion?
271
00:13:03.180 --> 00:13:05.760
I think, your Honor, that the abuse of discretion
272
00:13:05.760 --> 00:13:09.360
or error of law is the assumption that as she says
273
00:13:09.360 --> 00:13:12.180
in the findings in support of her decision,
274
00:13:12.180 --> 00:13:14.970
that the release of the applications would have
275
00:13:14.970 --> 00:13:18.690
to be weeks or longer before the hearings themselves.
276
00:13:18.690 --> 00:13:19.770
But that's why I asked you that question.
277
00:13:19.770 --> 00:13:21.630
You didn't really argue that to her.
278
00:13:21.630 --> 00:13:22.920
Well, no, we didn't argue that
279
00:13:22.920 --> 00:13:25.859
to her because of the--
Timing of it.
280
00:13:25.859 --> 00:13:28.617
The way in which--
But the fact that you want
281
00:13:28.617 --> 00:13:31.350
the applications themselves and the reasons
282
00:13:31.350 --> 00:13:34.710
that you've articulated now at oral argument
283
00:13:34.710 --> 00:13:38.100
as to why really seems to me to buttress
284
00:13:38.100 --> 00:13:40.320
the Clerk Magistrate's decision
285
00:13:40.320 --> 00:13:43.860
because there's a difference in the level
286
00:13:43.860 --> 00:13:47.700
and depth of information available in the applications
287
00:13:47.700 --> 00:13:52.530
than might occur in the open hearings.
288
00:13:52.530 --> 00:13:55.530
Well.
And so although the factors
289
00:13:55.530 --> 00:14:00.210
to be weighed are the same, the facts are different.
290
00:14:00.210 --> 00:14:04.320
And so the outcome, although initially maybe odd
291
00:14:04.320 --> 00:14:07.530
to open one and not the other is understandable
292
00:14:07.530 --> 00:14:10.320
because of the level of detail in the applications
293
00:14:10.320 --> 00:14:13.410
that may or may not come out during the show cause hearing,
294
00:14:13.410 --> 00:14:14.700
Having not seen the applications,
295
00:14:14.700 --> 00:14:16.380
of course, we can only speculate
296
00:14:16.380 --> 00:14:18.750
however the US attorney's state--
297
00:14:18.750 --> 00:14:21.330
But you just did at oral argument right now,
298
00:14:21.330 --> 00:14:24.210
a few minutes ago you said, we need the applications
299
00:14:24.210 --> 00:14:26.190
because we are experienced
300
00:14:26.190 --> 00:14:28.080
with attending show cause hearings
301
00:14:28.080 --> 00:14:31.410
and we understand that names can get botched,
302
00:14:31.410 --> 00:14:35.040
details like address, whatever the reason
303
00:14:35.040 --> 00:14:39.960
you want the complaint is exactly evidence
304
00:14:39.960 --> 00:14:41.820
that they're different in kind.
305
00:14:41.820 --> 00:14:45.720
And so to find that the Clerk Magistrate
306
00:14:45.720 --> 00:14:47.040
abused your discretion would be
307
00:14:47.040 --> 00:14:48.930
difficult given the differences
308
00:14:48.930 --> 00:14:50.520
that you've articulated well.
309
00:14:50.520 --> 00:14:52.170
Well, thank you your Honor.
310
00:14:52.170 --> 00:14:54.750
My point in raising the fact that we have
311
00:14:54.750 --> 00:14:56.640
to speculate is not to disparage speculation
312
00:14:56.640 --> 00:14:58.440
in these circumstances, it's necessary,
313
00:14:58.440 --> 00:15:02.280
but when the US attorney announced the charges,
314
00:15:02.280 --> 00:15:06.150
they said essentially these people put their names
315
00:15:06.150 --> 00:15:09.210
into web forms with their name,
316
00:15:09.210 --> 00:15:11.610
email address, cell phone number,
317
00:15:11.610 --> 00:15:15.060
and place of employment and a reference if they had one.
318
00:15:15.060 --> 00:15:16.800
And that the probable cause,
319
00:15:16.800 --> 00:15:19.740
I think, from the statement derives from the fact that
320
00:15:19.740 --> 00:15:22.080
they got that information.
Not all that information's
321
00:15:22.080 --> 00:15:25.953
really relevant to the allegations, right?
322
00:15:26.970 --> 00:15:30.003
You're gonna release information on where someone works.
323
00:15:30.930 --> 00:15:32.370
I understand that may be important
324
00:15:32.370 --> 00:15:34.410
if the person works at the State House,
325
00:15:34.410 --> 00:15:36.640
but it may not be important if they work
326
00:15:38.610 --> 00:15:39.990
at some business up the street
327
00:15:39.990 --> 00:15:42.540
that the press and no one else
328
00:15:42.540 --> 00:15:44.280
has any particular interest in, right?
329
00:15:44.280 --> 00:15:46.500
Well, what the US attorney has said is
330
00:15:46.500 --> 00:15:49.140
that these are high level customers of this brothel
331
00:15:49.140 --> 00:15:51.480
who work in positions of public trust,
332
00:15:51.480 --> 00:15:54.690
including elected officials, public officials,
333
00:15:54.690 --> 00:15:56.850
high level pharma employees,
334
00:15:56.850 --> 00:15:57.683
or scientists.
Do you think
335
00:15:57.683 --> 00:15:59.640
a press release is evidence
336
00:15:59.640 --> 00:16:02.160
or to be given the same weight as an affidavit
337
00:16:02.160 --> 00:16:04.053
or some statement made under oath?
338
00:16:04.890 --> 00:16:06.690
No, your Honor, I wouldn't say as a general matter
339
00:16:06.690 --> 00:16:09.930
that a press release is of the same ilk as that,
340
00:16:09.930 --> 00:16:14.930
notwithstanding the public interest doesn't rely solely
341
00:16:14.970 --> 00:16:17.040
on whether or not the statement is sworn.
342
00:16:17.040 --> 00:16:18.510
What the public perception will be
343
00:16:18.510 --> 00:16:21.270
if these hearings are closed or if these applications
344
00:16:21.270 --> 00:16:23.040
don't allow for the proper reporting
345
00:16:23.040 --> 00:16:26.430
of these hearings is that anybody
346
00:16:26.430 --> 00:16:29.760
who is not charged will have not been charged
347
00:16:29.760 --> 00:16:32.280
because they got some kind of preferential treatment
348
00:16:32.280 --> 00:16:33.900
behind closed doors at the hearing,
349
00:16:33.900 --> 00:16:35.700
and that is a significant concern
350
00:16:35.700 --> 00:16:38.100
as this court has said in the Eagle Tribune case
351
00:16:38.100 --> 00:16:39.660
and in the Boston Globe case.
352
00:16:39.660 --> 00:16:42.900
And in fact there's other parties here
353
00:16:42.900 --> 00:16:45.180
who have argued, well, what if there is no probable cause
354
00:16:45.180 --> 00:16:47.670
then I won't be able to get my reputation back.
355
00:16:47.670 --> 00:16:50.340
But this court in the Eagle Tribune case itself said
356
00:16:50.340 --> 00:16:52.890
that even when there is no probable cause found,
357
00:16:52.890 --> 00:16:55.410
that may be where access is the most important
358
00:16:55.410 --> 00:16:57.540
because it helps to ensure the public
359
00:16:57.540 --> 00:16:59.520
that equal justice is being done
360
00:16:59.520 --> 00:17:01.320
among these different defendants
361
00:17:01.320 --> 00:17:03.220
who come from different walks of life.
362
00:17:05.010 --> 00:17:07.113
Okay, thank you very much.
Thank you.
363
00:17:09.600 --> 00:17:11.313
Attorney Urbelis.
364
00:17:21.690 --> 00:17:23.490
Good morning your Honors, may it please the court,
365
00:17:23.490 --> 00:17:26.310
Benjamin Urbelis for the John Doe appellants.
366
00:17:26.310 --> 00:17:29.340
Just like grand jury proceedings, show cause hearings are
367
00:17:29.340 --> 00:17:31.620
presumptively private and that's so
368
00:17:31.620 --> 00:17:34.800
that the livelihoods and families of those
369
00:17:34.800 --> 00:17:36.900
during an investigation aren't ripped apart
370
00:17:36.900 --> 00:17:39.660
before there's even probable cause found.
371
00:17:39.660 --> 00:17:42.300
That's been the standard with an 80 year history,
372
00:17:42.300 --> 00:17:45.060
including the legislature twice rejecting bills
373
00:17:45.060 --> 00:17:47.970
that would've made these hearings public.
374
00:17:47.970 --> 00:17:50.310
We're only here today because the United States attorney
375
00:17:50.310 --> 00:17:55.050
made an improper comment about public officials being among
376
00:17:55.050 --> 00:17:58.620
the uncharged purchasers in a multi-state sex trafficking
377
00:17:58.620 --> 00:18:03.510
investigation with brothel from Massachusetts to Virginia.
378
00:18:03.510 --> 00:18:05.970
What precluded the United States attorney
379
00:18:05.970 --> 00:18:08.430
for making that you say, it's improper, why?
380
00:18:08.430 --> 00:18:11.400
I suggested it's improper based on Department
381
00:18:11.400 --> 00:18:14.490
of Justice policy where while there were
382
00:18:14.490 --> 00:18:17.460
indicted individuals in the federal case
383
00:18:17.460 --> 00:18:22.460
commenting on uncharged investigations is against DOJ policy
384
00:18:22.620 --> 00:18:24.990
I also wanna point out that the Mass rules
385
00:18:24.990 --> 00:18:29.147
of professional conduct has a specific section
386
00:18:31.080 --> 00:18:32.370
where it describes that prosecutors
387
00:18:32.370 --> 00:18:36.360
shouldn't be making comments on individuals
388
00:18:36.360 --> 00:18:38.360
that would heighten public condemnation.
389
00:18:39.990 --> 00:18:41.460
And with respect to that statement,
390
00:18:41.460 --> 00:18:44.250
it applied to this multi-state investigation
391
00:18:44.250 --> 00:18:46.200
from Massachusetts to Virginia.
392
00:18:46.200 --> 00:18:50.190
It didn't apply to the Cambridge John Doe specifically.
393
00:18:50.190 --> 00:18:53.070
And it's important to recognize that there were brothels
394
00:18:53.070 --> 00:18:55.975
just 14 miles outside of DC, the hub
395
00:18:55.975 --> 00:18:59.910
of this nation's public officials.
396
00:18:59.910 --> 00:19:04.620
Now unlike in the--
How does this statement
397
00:19:04.620 --> 00:19:08.250
that you're giving us affect our analysis
398
00:19:08.250 --> 00:19:11.970
as to whether or not the single justice abused
399
00:19:11.970 --> 00:19:13.860
his discretion when he concluded
400
00:19:13.860 --> 00:19:16.290
that the Clerk Magistrate did not abuse hers?
401
00:19:16.290 --> 00:19:18.330
Well, I think it's important to recognize
402
00:19:18.330 --> 00:19:21.750
that in the single justice's remand,
403
00:19:21.750 --> 00:19:25.770
he asked the Clerk Magistrate to address several questions,
404
00:19:25.770 --> 00:19:29.740
most importantly how the public interest balanced
405
00:19:30.870 --> 00:19:34.590
against the, and he underlined individual privacy rights
406
00:19:34.590 --> 00:19:36.960
of the accused of these non-public hearings.
407
00:19:36.960 --> 00:19:41.130
She didn't address that--
No, she addressed that.
408
00:19:41.130 --> 00:19:43.140
You may not like the balancing she did,
409
00:19:43.140 --> 00:19:48.140
but she clearly a addressed it, and she explained
410
00:19:48.180 --> 00:19:51.660
why she thought there was a significant public interest
411
00:19:51.660 --> 00:19:54.900
in assuring the public that powerful people would not
412
00:19:54.900 --> 00:19:58.290
be given preferential treatment behind closed doors.
413
00:19:58.290 --> 00:20:02.610
She explains that, you may think she drew the balance wrong,
414
00:20:02.610 --> 00:20:06.150
but our case law says she's supposed to do that type
415
00:20:06.150 --> 00:20:08.850
of balancing in a high profile case, isn't she?
416
00:20:08.850 --> 00:20:11.430
Well, I wanna suggest that she didn't,
417
00:20:11.430 --> 00:20:13.620
when I'm saying that she didn't address it,
418
00:20:13.620 --> 00:20:15.090
she didn't address the individual,
419
00:20:15.090 --> 00:20:19.650
and that was specifically underlined by Judge Gaziano
420
00:20:19.650 --> 00:20:21.960
because she didn't have the information
421
00:20:21.960 --> 00:20:24.030
about who these individuals were,
422
00:20:24.030 --> 00:20:25.980
what their privacy interests might be,
423
00:20:25.980 --> 00:20:27.480
what their occupations were.
424
00:20:27.480 --> 00:20:29.970
That was an individualized remand question
425
00:20:29.970 --> 00:20:33.390
that she didn't address.
But doesn't the public,
426
00:20:33.390 --> 00:20:35.760
the public is confronted with the fact
427
00:20:35.760 --> 00:20:39.840
that it can't distinguish the individuals
428
00:20:39.840 --> 00:20:41.610
and will be worried that people
429
00:20:41.610 --> 00:20:43.740
are getting preferential treatment?
430
00:20:43.740 --> 00:20:46.380
So I'm just not sure how.
431
00:20:46.380 --> 00:20:48.840
Well I think that's a policy decision,
432
00:20:48.840 --> 00:20:51.630
that's not for this.--
So it's the legal standard,
433
00:20:51.630 --> 00:20:52.463
isn't it?
434
00:20:52.463 --> 00:20:56.490
Well, I suggest that transparency and accountability--
435
00:20:56.490 --> 00:20:59.130
That's in the Eagle Tribune, that's what our case says.
436
00:20:59.130 --> 00:21:01.890
Those are the factors you have to consider.
437
00:21:01.890 --> 00:21:06.840
Again, you have to balance privacy versus the transparency.
438
00:21:06.840 --> 00:21:11.840
But she does that, we don't get to rebalance it
439
00:21:12.420 --> 00:21:15.480
unless it's an abuse of discretion, right?
440
00:21:15.480 --> 00:21:19.140
Well, I'm suggesting that she abused her discretion
441
00:21:19.140 --> 00:21:21.240
because she took that statement
442
00:21:21.240 --> 00:21:26.040
from the US attorney to use that in her decision,
443
00:21:26.040 --> 00:21:27.690
and I don't think that that was--
444
00:21:28.860 --> 00:21:32.430
No one's filed a board of bar overseers charge,
445
00:21:32.430 --> 00:21:36.600
that that's improper, including you, right?
446
00:21:36.600 --> 00:21:38.760
Right, well, whether it's improper or not,
447
00:21:38.760 --> 00:21:41.640
it shouldn't be grounds, this vague statement
448
00:21:41.640 --> 00:21:44.880
about a multi-state brothel investigation
449
00:21:44.880 --> 00:21:47.970
or sex traffic investigation to suggest
450
00:21:47.970 --> 00:21:51.480
that now 28 individuals with all separate interests
451
00:21:51.480 --> 00:21:53.130
should have their privacy rights stripped away
452
00:21:53.130 --> 00:21:55.410
because there's a chance that somebody
453
00:21:55.410 --> 00:21:57.543
within those 28 is a public official.
454
00:22:00.780 --> 00:22:02.760
But that's not what she said.
455
00:22:02.760 --> 00:22:06.360
She said that there's this perception
456
00:22:06.360 --> 00:22:10.157
if I don't open the hearings, that one or two
457
00:22:12.810 --> 00:22:16.320
or some of the 28 is getting preferential treatment
458
00:22:16.320 --> 00:22:19.020
if the complaint ultimately doesn't issue.
459
00:22:19.020 --> 00:22:23.220
And to avoid that and to double down
460
00:22:23.220 --> 00:22:26.850
on accountability, she opened them all.
461
00:22:26.850 --> 00:22:30.100
Well, I would suggest that if that's gonna be
462
00:22:31.230 --> 00:22:34.800
how a clerk decides whether or not to open these hearings,
463
00:22:34.800 --> 00:22:37.200
that opens the door to now prosecutors
464
00:22:37.200 --> 00:22:39.060
are just gonna leak information to the press
465
00:22:39.060 --> 00:22:41.730
and use that as a reason to have show cause hearings
466
00:22:41.730 --> 00:22:43.710
or even potentially grand jury hearings.
467
00:22:43.710 --> 00:22:46.170
If there's a leak that there's a public official
468
00:22:46.170 --> 00:22:48.990
among those being investigated by a grand jury,
469
00:22:48.990 --> 00:22:52.800
is this gonna open the door to now TV cameras being
470
00:22:52.800 --> 00:22:55.230
within grand jury proceedings?
471
00:22:55.230 --> 00:22:59.010
So I think that that should not be grounds
472
00:22:59.010 --> 00:23:00.450
to open up the hearings based upon
473
00:23:00.450 --> 00:23:02.700
the United States Attorney's Statement.
474
00:23:02.700 --> 00:23:07.380
In terms of process, what happened after remand?
475
00:23:07.380 --> 00:23:08.643
Was there a hearing?
476
00:23:10.500 --> 00:23:13.260
The Clerk Magistrate issued a response,
477
00:23:13.260 --> 00:23:15.120
and then the single justice issued his decision.
478
00:23:15.120 --> 00:23:19.753
Okay, so the defendants were not heard,
479
00:23:22.680 --> 00:23:24.330
given an opportunity to be heard?
480
00:23:25.200 --> 00:23:27.270
Was there an opportunity given to be heard
481
00:23:27.270 --> 00:23:29.763
from the defendants upon remand?
482
00:23:30.750 --> 00:23:31.583
No, there was not.
483
00:23:31.583 --> 00:23:35.220
And I also wanna address the fact that upon the applications
484
00:23:35.220 --> 00:23:37.200
of the media to open up these hearings,
485
00:23:37.200 --> 00:23:39.150
the decision was issued two days later.
486
00:23:39.150 --> 00:23:41.350
The John Does didn't even know
487
00:23:41.350 --> 00:23:42.780
that they were defendants in this case, let alone notice
488
00:23:42.780 --> 00:23:44.160
to have an opportunity to be heard.
489
00:23:44.160 --> 00:23:47.580
And these are liberty interests because undoubtedly,
490
00:23:47.580 --> 00:23:49.950
even if there's no probable cause, once their name is
491
00:23:49.950 --> 00:23:53.220
out there in the media, livelihoods are gonna be ruined,
492
00:23:53.220 --> 00:23:56.460
occupations, likely lost families ripped apart,
493
00:23:56.460 --> 00:23:58.410
their children's families, excuse me,
494
00:23:58.410 --> 00:24:00.930
their children are gonna have to deal with this at school.
495
00:24:00.930 --> 00:24:04.290
So I would suggest that they did have a due process right
496
00:24:04.290 --> 00:24:06.180
to be heard.
And can you tell me
497
00:24:06.180 --> 00:24:09.603
anything about the status of Does 19 through 28?
498
00:24:10.500 --> 00:24:13.620
I cannot, what I can say is that the five John Does
499
00:24:13.620 --> 00:24:16.365
that I represent are not public officials,
500
00:24:16.365 --> 00:24:17.997
and this would be strictly them.
501
00:24:17.997 --> 00:24:20.970
Oh, I wasn't asking for anything outside the record.
502
00:24:20.970 --> 00:24:25.590
Just they haven't appeared, is that correct?
503
00:24:25.590 --> 00:24:27.630
I have no information.
Okay.
504
00:24:27.630 --> 00:24:31.110
So just to follow up on Justice Wolohojian's question
505
00:24:31.110 --> 00:24:35.387
about procedure, notice was obtained at some point
506
00:24:38.100 --> 00:24:40.710
in January by the Does?
Correct,
507
00:24:40.710 --> 00:24:42.060
after the magistrate's decision.
508
00:24:42.060 --> 00:24:45.870
After the magistrate, but before the single Justice, or?
509
00:24:45.870 --> 00:24:47.700
I'm just trying to get the timeline.
510
00:24:47.700 --> 00:24:51.450
Yes, notice was provided to the John Does
511
00:24:51.450 --> 00:24:54.920
and several of which appealed
Okay.
512
00:24:54.920 --> 00:24:56.310
To the single Justice.
Okay.
513
00:24:56.310 --> 00:24:57.840
As interveners?
Yes.
514
00:24:57.840 --> 00:25:02.840
Yes, okay, so at that point upon remand notice was had
515
00:25:03.120 --> 00:25:05.790
in, well, at least speaking for your clients,
516
00:25:05.790 --> 00:25:08.760
was there a request to be heard at that point?
517
00:25:08.760 --> 00:25:10.440
I don't believe so.
Okay, thank you.
518
00:25:10.440 --> 00:25:13.110
So explain to me the due process argument.
519
00:25:13.110 --> 00:25:18.110
So normally stigma is not enough
520
00:25:18.690 --> 00:25:21.600
for a due process violation, right?
521
00:25:21.600 --> 00:25:24.780
Right.
So tell me
522
00:25:24.780 --> 00:25:27.069
why your case is different?
523
00:25:27.069 --> 00:25:29.670
Why is this different?
524
00:25:29.670 --> 00:25:31.650
'Cause we have a bunch of cases
525
00:25:31.650 --> 00:25:34.653
that say this doesn't rise to a due process level.
526
00:25:35.520 --> 00:25:38.670
Right, well, stigma alone does not,
527
00:25:38.670 --> 00:25:42.540
but I would suggest that this is what's known as stigma plus
528
00:25:42.540 --> 00:25:45.960
Given the salacious nature of the allegations in this case,
529
00:25:45.960 --> 00:25:48.330
and given the widespread media coverage,
530
00:25:48.330 --> 00:25:51.030
in this day and age where everyone has
531
00:25:51.030 --> 00:25:52.650
that information at their fingertips
532
00:25:52.650 --> 00:25:57.360
pretty much 24 hours a day, a undoubtedly the media is gonna
533
00:25:57.360 --> 00:25:59.550
then lead to people losing their jobs
534
00:25:59.550 --> 00:26:02.734
and livelihoods, which is a liberty interest.
535
00:26:02.734 --> 00:26:05.070
You said that in your brief,
536
00:26:05.070 --> 00:26:07.370
and you've said it now twice at oral argument.
537
00:26:09.210 --> 00:26:11.370
Do I take judicial notice that undoubtedly
538
00:26:11.370 --> 00:26:13.170
these people will lose their jobs
539
00:26:13.170 --> 00:26:16.230
if probable cause is not found, and no complaint issues?
540
00:26:16.230 --> 00:26:17.940
I'd ask the court to do so.
541
00:26:17.940 --> 00:26:21.150
And what would be my legal authority for doing that?
542
00:26:21.150 --> 00:26:24.090
Well, I would suggest that especially
543
00:26:24.090 --> 00:26:28.950
if people have professional licensures,
544
00:26:28.950 --> 00:26:30.420
I just think that it's common sense
545
00:26:30.420 --> 00:26:33.660
that they will undoubtedly lose their jobs,
546
00:26:33.660 --> 00:26:36.693
lose their professions, and have their lives ripped apart.
547
00:26:39.180 --> 00:26:41.340
If the complaints had actually issued,
548
00:26:41.340 --> 00:26:46.113
I can see your argument maybe, but they're getting process,
549
00:26:47.430 --> 00:26:49.830
there will be a hearing, there's gonna be process.
550
00:26:49.830 --> 00:26:51.060
We don't even know how this hearing
551
00:26:51.060 --> 00:26:53.523
would be conducted exactly at this point.
552
00:26:54.900 --> 00:26:57.750
The Clerk Magistrate may put their own set
553
00:26:57.750 --> 00:26:59.673
of limitations on that hearing.
554
00:27:01.170 --> 00:27:05.253
So how does that really rise to a due process violation?
555
00:27:07.530 --> 00:27:10.650
'Cause you're gonna have a say, you're gonna be there
556
00:27:10.650 --> 00:27:14.310
arguing this seriously, you're going to be filing motions,
557
00:27:14.310 --> 00:27:19.310
keeping your clients name as private as possible,
558
00:27:19.320 --> 00:27:24.090
I'm sure, so how is that a due process violation?
559
00:27:24.090 --> 00:27:28.290
Well, I think that without giving them notice--
560
00:27:28.290 --> 00:27:29.850
Well, they have notice now.
561
00:27:29.850 --> 00:27:33.030
There's been no release of these people's
562
00:27:33.030 --> 00:27:38.030
private information yet, there's full notice at this point.
563
00:27:38.490 --> 00:27:41.160
And they're all represented by counsel, I assume,
564
00:27:41.160 --> 00:27:43.773
and all counsel is gonna be present at this hearing,
565
00:27:45.810 --> 00:27:49.620
arguing as effectively as you're doing right now.
566
00:27:49.620 --> 00:27:51.750
Well, I would suggest that if there is a hearing
567
00:27:51.750 --> 00:27:53.610
prior to the show cause hearings
568
00:27:53.610 --> 00:27:55.500
where the clerk is gonna take these matters--
569
00:27:55.500 --> 00:27:57.480
We don't know how the hearing is gonna be conducted.
570
00:27:57.480 --> 00:27:59.673
There's gonna be process at that hearing.
571
00:28:00.527 --> 00:28:01.560
There are gonna be a set of rules
572
00:28:01.560 --> 00:28:04.050
in place for that hearing, I assume.
573
00:28:04.050 --> 00:28:06.741
And there may be extra protections provided.
574
00:28:06.741 --> 00:28:09.870
We're not deciding how that hearing's being conducted.
575
00:28:09.870 --> 00:28:12.150
The question is whether it's public or not.
576
00:28:12.150 --> 00:28:15.720
Right, well, I'm suggesting that if this court
577
00:28:15.720 --> 00:28:20.720
upholds that decision, then that's what this is about,
578
00:28:20.880 --> 00:28:23.280
the show cause hearings will be made public.
579
00:28:23.280 --> 00:28:25.920
There's no way to prevent that from happening
580
00:28:25.920 --> 00:28:27.480
and prevent their names and their identities
581
00:28:27.480 --> 00:28:28.630
from getting out there.
582
00:28:30.810 --> 00:28:34.000
Okay, thank you.
= Thank you
583
00:28:40.860 --> 00:28:41.853
Attorney Mahoney.
584
00:28:45.660 --> 00:28:49.653
Good morning your Honors, and then may I please the court,
585
00:28:50.910 --> 00:28:55.910
I think I'd like to start with the petitioner's brief,
586
00:28:57.510 --> 00:29:00.003
Mr. Pyle's brief, page 27.
587
00:29:00.900 --> 00:29:04.230
The petitioners may or may not determine that the identities
588
00:29:04.230 --> 00:29:09.230
of all 28 individuals are sufficiently newsworthy
589
00:29:09.510 --> 00:29:11.943
to publish in news reporting.
590
00:29:15.930 --> 00:29:20.370
So the Boston Globe would like all the information on all
591
00:29:20.370 --> 00:29:24.300
the individuals while at the same time conceding that some
592
00:29:24.300 --> 00:29:27.630
of these individuals might not interest them at all,
593
00:29:27.630 --> 00:29:29.700
that they might not even be worthy
594
00:29:29.700 --> 00:29:33.060
of a line in the newspaper.
595
00:29:33.060 --> 00:29:37.560
But the issue is whether the public is comfortable
596
00:29:37.560 --> 00:29:40.080
that there's not preferential treatment
597
00:29:40.080 --> 00:29:42.000
for the ones who are powerful.
598
00:29:42.000 --> 00:29:45.093
And how do you know if it's not public?
599
00:29:47.250 --> 00:29:50.520
That seemed to be the primary concern
600
00:29:50.520 --> 00:29:53.610
of the Clerk Magistrate, was the public perception,
601
00:29:53.610 --> 00:29:55.620
that she might not be even-handed.
602
00:29:55.620 --> 00:29:57.750
That seemed to be her primary concern.
603
00:29:57.750 --> 00:30:01.200
That's the judiciary's primary concern
604
00:30:01.200 --> 00:30:03.450
that we're even-handed, impartial.
605
00:30:03.450 --> 00:30:05.190
That's correct.
606
00:30:05.190 --> 00:30:07.530
And that's certainly the way it should be.
607
00:30:07.530 --> 00:30:12.530
Unfortunately, in order to achieve that goal,
608
00:30:16.920 --> 00:30:20.730
her decision results in other people
609
00:30:20.730 --> 00:30:23.112
who would not normally be caught up in this,
610
00:30:23.112 --> 00:30:25.710
would not normally be reported in the media
611
00:30:25.710 --> 00:30:27.693
whose hearings would never be open.
612
00:30:28.542 --> 00:30:33.357
They're sacrificed, and do we want
613
00:30:34.620 --> 00:30:39.620
to sacrifice individuals to maintain the perception
614
00:30:40.080 --> 00:30:43.450
of the public or the media that that this has been handled
615
00:30:44.850 --> 00:30:47.850
even-handedly all of these--
616
00:30:47.850 --> 00:30:50.150
Would your--
That's just a balancing test
617
00:30:51.355 --> 00:30:55.590
and you call it sacrificing the individuals,
618
00:30:55.590 --> 00:31:00.590
but I think the test has been well articulated as a balance.
619
00:31:00.810 --> 00:31:05.810
And so sometimes the individual's privacy interest
620
00:31:05.940 --> 00:31:09.600
is overridden by the public interest in matters
621
00:31:09.600 --> 00:31:11.970
of public concern that have received the type
622
00:31:11.970 --> 00:31:14.493
of notoriety that this one has.
623
00:31:18.360 --> 00:31:19.563
The brothel,
624
00:31:21.472 --> 00:31:24.660
and the potential participants, the customers.
625
00:31:24.660 --> 00:31:27.750
Yes, and I conceded that in my brief.
626
00:31:27.750 --> 00:31:30.150
There are individuals, as I understand it,
627
00:31:30.150 --> 00:31:33.570
based on Acting Attorney Joshua Levy's statement,
628
00:31:33.570 --> 00:31:36.660
that would absolutely be a public interest.
629
00:31:36.660 --> 00:31:39.930
If politicians visited that brothel,
630
00:31:39.930 --> 00:31:42.000
that's a matter of public interest
631
00:31:42.000 --> 00:31:44.253
for the reasons that I outlined in my brief.
632
00:31:45.600 --> 00:31:49.050
If someone with a security clearance could conceivably have
633
00:31:49.050 --> 00:31:52.353
been compromised, that's a matter of public interest.
634
00:31:53.670 --> 00:31:57.780
But when Acting US Attorney Joshua Levy identified
635
00:31:57.780 --> 00:31:59.430
these individuals by profession,
636
00:31:59.430 --> 00:32:02.850
he didn't say firefighter or plumber or electrician
637
00:32:02.850 --> 00:32:05.310
because nobody in the media would've cared.
638
00:32:05.310 --> 00:32:07.900
If those were the only professions that he listed
639
00:32:08.850 --> 00:32:10.770
Boston Globe wouldn't be seeking permission
640
00:32:10.770 --> 00:32:12.330
to open the hearings.
641
00:32:12.330 --> 00:32:14.970
Do you wanna address Justice Wolohojian's point
642
00:32:14.970 --> 00:32:16.740
that she brings up earlier that there has
643
00:32:16.740 --> 00:32:21.513
to be an individualized separate analysis,
644
00:32:22.350 --> 00:32:25.140
that it's required as part of the process?
645
00:32:25.140 --> 00:32:27.960
'Cause I don't think you're going to get very far
646
00:32:27.960 --> 00:32:31.020
by just arguing the point you're arguing
647
00:32:31.020 --> 00:32:33.370
unless you sort of connect it to a legal point.
648
00:32:34.890 --> 00:32:38.110
The legal point your Honor, is
649
00:32:39.702 --> 00:32:42.663
there should have been individualized findings.
650
00:32:43.770 --> 00:32:46.260
Because if we look at the actual language of the statute,
651
00:32:46.260 --> 00:32:50.733
it refers to an application or it refers to an incident.
652
00:32:51.930 --> 00:32:56.070
This was not one incident, this wasn't like the other matter
653
00:32:56.070 --> 00:32:58.350
where there was a melee, it was all one incident.
654
00:32:58.350 --> 00:33:00.540
These are all separate incidents.
655
00:33:00.540 --> 00:33:03.030
These are all separate individuals
656
00:33:03.030 --> 00:33:05.100
who are being accused of these crimes.
657
00:33:05.100 --> 00:33:09.870
And they didn't participate in anything jointly.
658
00:33:09.870 --> 00:33:14.490
So for each individual, there should have been an assessment
659
00:33:14.490 --> 00:33:18.690
because if an assessment is done and the individual is
660
00:33:18.690 --> 00:33:21.360
of no interest to the public,
661
00:33:21.360 --> 00:33:24.120
no interest to the public whatsoever,
662
00:33:24.120 --> 00:33:26.730
does not hold an office of any note,
663
00:33:26.730 --> 00:33:28.713
no position of any prominence.
664
00:33:30.900 --> 00:33:33.270
But how can you make that determination as an abstraction?
665
00:33:33.270 --> 00:33:38.270
Okay, so one of your clients has an ordinary job.
666
00:33:38.400 --> 00:33:41.520
He doesn't work at the State House.
667
00:33:41.520 --> 00:33:43.410
We don't know if he's related to someone
668
00:33:43.410 --> 00:33:45.480
who works at the State House or friends
669
00:33:45.480 --> 00:33:48.930
with somebody who has powerful connections, right?
670
00:33:48.930 --> 00:33:53.930
So I'm not sure how this works 'cause we can't judge
671
00:33:54.990 --> 00:33:59.160
just by someone's job whether they're connected, right?
672
00:33:59.160 --> 00:34:04.160
I agree, I agree that that's a valid point,
673
00:34:05.880 --> 00:34:10.770
but I think that should be part of the clerk's analysis
674
00:34:10.770 --> 00:34:14.760
before she makes a decision for each individual.
675
00:34:14.760 --> 00:34:18.060
I know that the Attorney General has brought up the fact
676
00:34:18.060 --> 00:34:22.650
that this might be difficult time-wise
677
00:34:22.650 --> 00:34:27.650
for the clerk to manage, but she could schedule a hearing
678
00:34:29.940 --> 00:34:32.376
without notifying the public.
679
00:34:32.376 --> 00:34:34.740
She could hold that hearing behind closed doors,
680
00:34:34.740 --> 00:34:36.180
and during the course of that hearing,
681
00:34:36.180 --> 00:34:38.280
she could make an individual assessment as to whether or not
682
00:34:38.280 --> 00:34:39.990
But isn't that exactly--
This should be open.
683
00:34:39.990 --> 00:34:44.100
The situation the Clerk Magistrate articulated
684
00:34:44.100 --> 00:34:48.750
she wanted to avoid, that she would be treating
685
00:34:48.750 --> 00:34:51.480
or perceived to be treating individuals
686
00:34:51.480 --> 00:34:55.443
differently based on position and power?
687
00:34:58.110 --> 00:34:59.040
That is correct.
688
00:34:59.040 --> 00:35:02.050
You have a behind closed doors hearing
689
00:35:04.290 --> 00:35:06.930
whether or not it's true, the perception is
690
00:35:06.930 --> 00:35:09.153
that people are being treated differently.
691
00:35:10.620 --> 00:35:14.370
But may I say that in every Clerk Magistrate's hearing
692
00:35:14.370 --> 00:35:16.530
that is closed to the public--
693
00:35:16.530 --> 00:35:19.380
Which is the default.
Would that not also
694
00:35:19.380 --> 00:35:22.470
be a concern that individuals whose matters
695
00:35:22.470 --> 00:35:26.010
have not been reported and do have some connections are
696
00:35:26.010 --> 00:35:29.043
in there in a closed door meeting with the clerk magistrate,
697
00:35:29.972 --> 00:35:32.640
and using the influence that that individual possesses
698
00:35:32.640 --> 00:35:35.640
to persuade the Clerk Magistrate to dismiss the matter?
699
00:35:35.640 --> 00:35:38.520
I mean, isn't that always a concern?
700
00:35:38.520 --> 00:35:41.550
You're making her point.
Yeah, I think that's--
701
00:35:41.550 --> 00:35:42.960
But if it's always a concern,
702
00:35:42.960 --> 00:35:45.660
then why wouldn't we open all the hearings
703
00:35:45.660 --> 00:35:47.640
to dispel that concern?
704
00:35:47.640 --> 00:35:49.050
Why would the default position be
705
00:35:49.050 --> 00:35:53.430
that the hearings are closed when that issue
706
00:35:53.430 --> 00:35:55.800
could surface in any hearing?
707
00:35:55.800 --> 00:35:58.710
But now we have a situation that has rightly
708
00:35:58.710 --> 00:36:02.670
or wrongly received public notoriety.
709
00:36:02.670 --> 00:36:07.650
And so we have these 28 potential defendants,
710
00:36:07.650 --> 00:36:11.430
and to treat them differently behind closed doors
711
00:36:11.430 --> 00:36:14.853
is the reason why the Clerk Magistrate said,
712
00:36:15.703 --> 00:36:16.882
"I can't do that."
713
00:36:16.882 --> 00:36:21.882
It would indicate to the public that of the 28,
714
00:36:21.930 --> 00:36:23.820
a few of them are being treated differently
715
00:36:23.820 --> 00:36:25.893
and the public would never know why.
716
00:36:29.513 --> 00:36:32.580
In part of my brief, what I emphasized was
717
00:36:32.580 --> 00:36:36.870
that the system to function properly
718
00:36:36.870 --> 00:36:39.393
and to protect individuals like my client,
719
00:36:40.560 --> 00:36:43.560
it requires a certain amount of trust.
720
00:36:43.560 --> 00:36:47.250
And then I went on to say that we all have our positions
721
00:36:47.250 --> 00:36:50.100
and certainly the justices of the Supreme Judicial Court
722
00:36:50.100 --> 00:36:53.010
are the highest attorneys in the Commonwealth.
723
00:36:53.010 --> 00:36:55.380
And you wouldn't have achieved these positions
724
00:36:55.380 --> 00:36:57.240
unless you were trustworthy.
725
00:36:57.240 --> 00:37:00.540
The clerk, Ms. Casey, she's a very trustworthy individual.
726
00:37:00.540 --> 00:37:03.090
There has to be at least some trust
727
00:37:03.090 --> 00:37:05.763
in the system for it to function.
728
00:37:07.080 --> 00:37:10.020
If everything was out in the open,
729
00:37:10.020 --> 00:37:12.303
if there were no sidebar conferences,
730
00:37:13.448 --> 00:37:14.850
because there would be the perception of the jury
731
00:37:14.850 --> 00:37:18.360
that information is being withheld from them.
732
00:37:18.360 --> 00:37:20.760
If the grand jury proceedings were open to the public
733
00:37:20.760 --> 00:37:22.620
because there might be the perception
734
00:37:22.620 --> 00:37:25.270
that the District Attorney's Office hadn't
735
00:37:26.550 --> 00:37:29.130
presented the evidence in an objective
736
00:37:29.130 --> 00:37:33.600
and fair manner, then none of this,
737
00:37:33.600 --> 00:37:35.850
the system would stop functioning.
738
00:37:35.850 --> 00:37:38.550
So there has to be some things
739
00:37:38.550 --> 00:37:41.340
where there's some confidentiality,
740
00:37:41.340 --> 00:37:43.860
and everybody in certainly the court
741
00:37:43.860 --> 00:37:47.970
and the Clerk Magistrate, and Justice Frank,
742
00:37:47.970 --> 00:37:50.280
and the Cambridge District Court have all earned
743
00:37:50.280 --> 00:37:55.110
that trust, we have to have some trust
744
00:37:55.110 --> 00:37:59.070
in the system for it to function because if there's no trust
745
00:37:59.070 --> 00:38:01.860
and everything is open to the possibility
746
00:38:01.860 --> 00:38:05.130
that there's some corruption or some undo influence,
747
00:38:05.130 --> 00:38:07.350
the system is gonna completely break down
748
00:38:07.350 --> 00:38:10.800
because the purpose of these Clerk Magistrates hearings
749
00:38:10.800 --> 00:38:13.560
in almost every case, and I've done a lot
750
00:38:13.560 --> 00:38:16.872
of Clerk Magistrates hearings in that courthouse,
751
00:38:16.872 --> 00:38:19.230
in almost every case, the probable cause standard is met,
752
00:38:19.230 --> 00:38:21.353
it's gotta be greater than 90%.
753
00:38:22.320 --> 00:38:24.990
But then the clerk has some discretion,
754
00:38:24.990 --> 00:38:26.760
and that's where we as defense attorneys,
755
00:38:26.760 --> 00:38:29.130
we explain to the Clerk Magistrate something
756
00:38:29.130 --> 00:38:31.440
about our client and maybe our client
757
00:38:31.440 --> 00:38:32.850
could do some community service
758
00:38:32.850 --> 00:38:35.550
or maybe our client could atone in some other manner,
759
00:38:35.550 --> 00:38:37.290
pay restitution to a victim.
760
00:38:37.290 --> 00:38:40.050
We talk about the history of our client
761
00:38:40.050 --> 00:38:42.750
and the personal attributes of our client.
762
00:38:42.750 --> 00:38:44.460
All of that is done behind closed doors
763
00:38:44.460 --> 00:38:47.700
because it really serves as sort of a criminal mediation.
764
00:38:47.700 --> 00:38:51.510
And when you open that hearing up to the public
765
00:38:51.510 --> 00:38:55.320
in its broadcast, then the mediation function,
766
00:38:55.320 --> 00:38:58.290
it doesn't really function as it's designed.
767
00:38:58.290 --> 00:39:00.870
And let's be honest, most of the defense attorneys
768
00:39:00.870 --> 00:39:03.750
and their clients are probably not gonna attend
769
00:39:03.750 --> 00:39:05.940
because we're not gonna be able to make that presentation
770
00:39:05.940 --> 00:39:07.380
because that's kind of the presentation
771
00:39:07.380 --> 00:39:09.900
where you reveal personal issues
772
00:39:09.900 --> 00:39:12.120
with your client or personal attributes.
773
00:39:12.120 --> 00:39:13.920
That's something that really is better done
774
00:39:13.920 --> 00:39:17.853
behind closed doors where you can have a good conversation.
775
00:39:20.130 --> 00:39:21.660
Thank you.
Thank you.
776
00:39:21.660 --> 00:39:22.660
Thank you very much.
777
00:39:25.020 --> 00:39:26.703
Okay, Attorney Thornton,
778
00:39:29.370 --> 00:39:31.050
Good morning, may it please the court,
779
00:39:31.050 --> 00:39:33.060
Assistant Attorney General Gabriel Thornton
780
00:39:33.060 --> 00:39:36.090
for the Clerk Magistrate of the Cambridge District Court.
781
00:39:36.090 --> 00:39:38.610
The Clerk Magistrate did not abuse her discretion
782
00:39:38.610 --> 00:39:41.311
in concluding that the public interest
783
00:39:41.311 --> 00:39:42.630
in accessing the hearings outweighed
784
00:39:42.630 --> 00:39:44.583
the individual's right of privacy.
785
00:39:45.780 --> 00:39:48.180
The Clerk Magistrate appropriately supported her decision
786
00:39:48.180 --> 00:39:50.913
to open the hearings with the following findings.
787
00:39:51.750 --> 00:39:53.880
First, as to the public interest, she found
788
00:39:53.880 --> 00:39:55.477
that the underlying criminal case, quote,
789
00:39:55.477 --> 00:39:58.860
"Was widely publicized and the subject matter, conduct
790
00:39:58.860 --> 00:40:02.760
generated significant interest by the public," closed quote.
791
00:40:02.760 --> 00:40:04.680
Neither the petitioners nor the interveners
792
00:40:04.680 --> 00:40:06.123
dispute that finding here.
793
00:40:06.960 --> 00:40:09.930
Opening the proceeding for such a well-publicized case,
794
00:40:09.930 --> 00:40:12.540
the Clerk Magistrate observed could prevent questions
795
00:40:12.540 --> 00:40:14.070
of, quote, "Whether justice has been done
796
00:40:14.070 --> 00:40:15.960
behind the closed doors of the hearing room."
797
00:40:15.960 --> 00:40:17.940
Could you address justice Wolohojian's question
798
00:40:17.940 --> 00:40:21.330
about how individualized this process has to be?
799
00:40:21.330 --> 00:40:25.560
'Cause the Clerk Magistrate is dealing with them
800
00:40:25.560 --> 00:40:28.410
as a group the way the US attorney's office dealt
801
00:40:28.410 --> 00:40:30.754
with them as sort of as a group.
802
00:40:30.754 --> 00:40:32.670
And I'm just trying to understand again,
803
00:40:32.670 --> 00:40:36.090
how granular this needs to be?
804
00:40:36.090 --> 00:40:38.340
So when the single justice remanded the matter
805
00:40:38.340 --> 00:40:40.770
to the Clerk Magistrate, he ordered
806
00:40:40.770 --> 00:40:44.580
that she conduct an individual analysis,
807
00:40:44.580 --> 00:40:48.540
and after it was remanded, she considered
808
00:40:48.540 --> 00:40:50.760
all the different factors, certainly did not abuse
809
00:40:50.760 --> 00:40:52.590
her discretion and determined
810
00:40:52.590 --> 00:40:55.800
that the interests in opening the hearings
811
00:40:55.800 --> 00:41:00.185
outweighed whatever the individual interests might be.
812
00:41:00.185 --> 00:41:02.760
When you say she did that on an individualized basis,
813
00:41:02.760 --> 00:41:06.450
what in her decision on remand shows
814
00:41:06.450 --> 00:41:10.680
that she considered the Does individually,
815
00:41:10.680 --> 00:41:12.633
as opposed to a group of 28?
816
00:41:13.770 --> 00:41:16.230
Specific language would be helpful.
817
00:41:16.230 --> 00:41:17.490
Yes, your Honor.
818
00:41:17.490 --> 00:41:19.620
I can't think of any specific language
819
00:41:19.620 --> 00:41:21.360
off the top of my head.
820
00:41:21.360 --> 00:41:22.710
She did have the applications
821
00:41:22.710 --> 00:41:24.750
and the police reports in front of her.
822
00:41:24.750 --> 00:41:28.860
Right, but that seems to me to argue against,
823
00:41:28.860 --> 00:41:31.170
to go run against this argument of yours
824
00:41:31.170 --> 00:41:34.800
because with respect to the applications,
825
00:41:34.800 --> 00:41:36.243
she ruled the other way.
826
00:41:39.450 --> 00:41:41.240
Do you see what I'm saying?
827
00:41:41.240 --> 00:41:42.327
I see what you're saying, your Honor.
828
00:41:42.327 --> 00:41:44.460
But I wouldn't agree that it cuts against the argument
829
00:41:44.460 --> 00:41:47.040
because with respect to the applications,
830
00:41:47.040 --> 00:41:49.623
the analysis still wasn't an abuse of discretion.
831
00:41:50.790 --> 00:41:52.320
She could essentially consider them
832
00:41:52.320 --> 00:41:54.750
as a group of 28 just as she did.
833
00:41:54.750 --> 00:41:59.650
Do we have any other balancing test in a criminal context
834
00:42:00.750 --> 00:42:02.823
where the defendant's privacy,
835
00:42:03.690 --> 00:42:05.790
and also we're talking here about a presumption
836
00:42:05.790 --> 00:42:09.660
that ordinarily applies in favor of the charged person,
837
00:42:09.660 --> 00:42:14.660
accused person where people who have committed crimes
838
00:42:14.820 --> 00:42:19.820
on different days, allegedly committed crimes
839
00:42:19.830 --> 00:42:23.040
on different days, there's no allegation
840
00:42:23.040 --> 00:42:26.250
that this is a joint enterprise on their part.
841
00:42:26.250 --> 00:42:28.860
They are charged individually with committing
842
00:42:28.860 --> 00:42:32.340
individual crimes separately on different days
843
00:42:32.340 --> 00:42:37.230
that their due process and interests
844
00:42:37.230 --> 00:42:40.413
have been considered as a clump.
845
00:42:42.030 --> 00:42:45.060
Well, it's not a clump, the federal case is unified.
846
00:42:45.060 --> 00:42:50.060
So we have a unified federal prosecution of the traffickers.
847
00:42:53.130 --> 00:42:55.530
But on the state side, this is gonna be
848
00:42:55.530 --> 00:42:57.720
as Justice Wolohojian said, an individualized one.
849
00:42:57.720 --> 00:43:02.340
So they're not a clump, but the federal organizing principle
850
00:43:02.340 --> 00:43:05.940
doesn't neatly apply on the state side, does it?
851
00:43:05.940 --> 00:43:06.773
Or does it?
852
00:43:06.773 --> 00:43:07.606
I just don't know.
853
00:43:09.150 --> 00:43:11.040
Pardon me if this doesn't directly answer the question,
854
00:43:11.040 --> 00:43:14.220
but if we go back to base principles of due process,
855
00:43:14.220 --> 00:43:16.980
there is no liberty or property interest here,
856
00:43:16.980 --> 00:43:21.150
there is no constitutional right
857
00:43:21.150 --> 00:43:22.680
that we're talking about in this context.
858
00:43:22.680 --> 00:43:25.500
We're talking about a Massachusetts statute.
859
00:43:25.500 --> 00:43:27.303
So counsel, are you saying,
860
00:43:28.267 --> 00:43:31.050
which is the government's position?
861
00:43:31.050 --> 00:43:36.050
Is the position that individualized hearings were not
862
00:43:36.750 --> 00:43:39.840
required because there is no liberty interest?
863
00:43:39.840 --> 00:43:44.340
Or is it that per the single justice's order,
864
00:43:44.340 --> 00:43:46.680
the magistrate conducted and considered
865
00:43:46.680 --> 00:43:48.420
individually the complaints?
866
00:43:48.420 --> 00:43:50.010
The former, your Honor.
Okay.
867
00:43:50.010 --> 00:43:52.290
So she didn't consider the individual complaints
868
00:43:52.290 --> 00:43:53.943
as the government's position?
869
00:43:55.590 --> 00:43:57.630
The government's position.
And that was okay
870
00:43:57.630 --> 00:43:59.730
because there's no due process implicated.
871
00:43:59.730 --> 00:44:01.380
The government's position is
872
00:44:01.380 --> 00:44:04.260
that there's no constitutional or statutory
873
00:44:04.260 --> 00:44:07.023
or common law requirement,
874
00:44:12.030 --> 00:44:14.670
that nothing the Clerk Magistrate did here was an abuse
875
00:44:14.670 --> 00:44:17.250
of discretion in terms of constitutional statutory law
876
00:44:17.250 --> 00:44:19.650
or common law or the complaint standards.
877
00:44:19.650 --> 00:44:22.620
But that once the matter was remanded to her,
878
00:44:22.620 --> 00:44:25.470
she conducted the analysis of the single justice ordered.
879
00:44:29.310 --> 00:44:33.360
We have cases like this, protests for example,
880
00:44:33.360 --> 00:44:35.703
100 people are brought in at once, right?
881
00:44:36.990 --> 00:44:41.040
So is there a legal requirement?
882
00:44:41.040 --> 00:44:43.830
At the show cause hearing there's going
883
00:44:43.830 --> 00:44:46.920
to be an individualized analysis, right?
884
00:44:46.920 --> 00:44:50.190
That's correct.
And the way
885
00:44:50.190 --> 00:44:54.510
the Clerk Magistrate dealt with the applications provides
886
00:44:54.510 --> 00:44:58.230
for an individualized look in this interim period.
887
00:44:58.230 --> 00:45:02.196
So is there anything that legally requires her
888
00:45:02.196 --> 00:45:04.170
prior to the show cause hearing
889
00:45:04.170 --> 00:45:08.220
to again break this down individual by individual,
890
00:45:08.220 --> 00:45:10.140
or can she do it at the show cause hearing?
891
00:45:10.140 --> 00:45:14.370
I take it that's within her powers.
892
00:45:14.370 --> 00:45:16.740
Your Honor, it wasn't an abuse of discretion here.
893
00:45:16.740 --> 00:45:18.450
I suppose if we look at some of the language,
894
00:45:18.450 --> 00:45:20.580
and there's not a lot of case law here, of course,
895
00:45:20.580 --> 00:45:22.770
about Boston Globe or Eagle Tribune,
896
00:45:22.770 --> 00:45:24.240
that there could be language there
897
00:45:24.240 --> 00:45:26.830
that suggests at least in some circumstances
898
00:45:28.240 --> 00:45:31.350
an individual analysis would be appropriate.
899
00:45:31.350 --> 00:45:32.700
But--
There is going
900
00:45:32.700 --> 00:45:34.530
to be an individualized analysis.
901
00:45:34.530 --> 00:45:36.480
The question is when, right?
902
00:45:36.480 --> 00:45:41.480
There has to be, there's going to be an individualized case
903
00:45:43.200 --> 00:45:44.430
by case determination, right?
904
00:45:44.430 --> 00:45:47.370
'Cause it's not a joint venture here.
905
00:45:47.370 --> 00:45:49.080
Yes, your Honor, there's gonna be an individualized
906
00:45:49.080 --> 00:45:51.510
analysis for the probable cause determination.
907
00:45:51.510 --> 00:45:54.060
The determination whether a complaint should issue.
908
00:45:55.170 --> 00:45:58.500
There's nothing that requires necessarily an individualized
909
00:45:58.500 --> 00:46:01.350
analysis in the question of whether hearings should be open
910
00:46:01.350 --> 00:46:04.140
to the public or whether applications
911
00:46:04.140 --> 00:46:06.060
for complaints should be released prior to a hearing.
912
00:46:06.060 --> 00:46:09.870
But if you have an individualized analysis at this point,
913
00:46:09.870 --> 00:46:11.460
don't you run into the problem
914
00:46:11.460 --> 00:46:14.550
where you're treating different people differently
915
00:46:14.550 --> 00:46:16.980
and the public doesn't know whether
916
00:46:16.980 --> 00:46:18.720
everyone's being treated fairly?
917
00:46:18.720 --> 00:46:21.900
Yes, your Honor, certainly in these circumstances,
918
00:46:21.900 --> 00:46:24.390
the Clerk Magistrate in this scenario,
919
00:46:24.390 --> 00:46:26.460
let's say 28 applications for complaint,
920
00:46:26.460 --> 00:46:30.090
let's say she decided to open 27 of the hearings,
921
00:46:30.090 --> 00:46:31.923
but not one of them, or vice versa,
922
00:46:32.790 --> 00:46:35.730
open one of the hearings, not the other 27.
923
00:46:35.730 --> 00:46:38.430
The public would wonder legitimately,
924
00:46:38.430 --> 00:46:40.530
whether justice had been done.
925
00:46:40.530 --> 00:46:42.900
The court in Boston Globe, the 2019 case,
926
00:46:42.900 --> 00:46:45.510
talks about the interests of transparency,
927
00:46:45.510 --> 00:46:48.900
accountability, and public confidence in the judiciary.
928
00:46:48.900 --> 00:46:51.360
What the Clerk Magistrate did here was
929
00:46:51.360 --> 00:46:52.830
in line with that language, and it certainly
930
00:46:52.830 --> 00:46:54.270
wasn't an abuse of discretion,
931
00:46:54.270 --> 00:46:57.540
Do you have any authority for the notion
932
00:46:57.540 --> 00:47:02.320
that the request to open the hearings
933
00:47:03.450 --> 00:47:07.287
could be or should be allowed before any
934
00:47:08.790 --> 00:47:12.320
of the Does received notice that the request had been made
935
00:47:12.320 --> 00:47:14.763
or an opportunity to be heard on the matter?
936
00:47:16.083 --> 00:47:17.216
Your Honor, I'm--
I'm looking
937
00:47:17.216 --> 00:47:19.440
for some legal authority here.
938
00:47:19.440 --> 00:47:20.910
Right.
Case, statute
939
00:47:20.910 --> 00:47:22.020
I'm not aware--
Rule.
940
00:47:22.020 --> 00:47:25.410
Of authority that necessarily points either way.
941
00:47:25.410 --> 00:47:26.790
Again, if we go back to basic--
942
00:47:26.790 --> 00:47:29.250
Well, there is a presumption, right?
943
00:47:29.250 --> 00:47:32.433
So that's a legal authority pointing one way.
944
00:47:33.480 --> 00:47:36.330
It's hard for me, frankly, to conceive
945
00:47:36.330 --> 00:47:39.090
of overcoming a presumption or a presumption
946
00:47:39.090 --> 00:47:41.190
that runs in favor of a defendant without giving
947
00:47:41.190 --> 00:47:43.353
that defendant an opportunity to be heard.
948
00:47:44.751 --> 00:47:45.780
'Cause the motion was allowed here,
949
00:47:45.780 --> 00:47:47.400
and if I have the chronology correct,
950
00:47:47.400 --> 00:47:50.670
but correct me if I don't, the motion was allowed
951
00:47:50.670 --> 00:47:55.500
before any of the Does received notice
952
00:47:55.500 --> 00:47:57.450
or an opportunity to be heard.
953
00:47:57.450 --> 00:48:00.270
That's correct, that's correct.
954
00:48:00.270 --> 00:48:02.580
And again, if we go back to basic principles--
955
00:48:02.580 --> 00:48:05.250
But before any action was took place,
956
00:48:05.250 --> 00:48:08.520
because of the single justice and because of the remand,
957
00:48:08.520 --> 00:48:11.820
notice was fully provided before any action,
958
00:48:11.820 --> 00:48:14.220
before the action we're dealing with was, right?
959
00:48:15.150 --> 00:48:16.157
The timeline is--
The horse may have got out
960
00:48:16.157 --> 00:48:19.083
of the barn, but it was put back in before, right?
961
00:48:20.040 --> 00:48:22.140
To be clear, the timeline, as I understand it,
962
00:48:22.140 --> 00:48:26.550
is media organizations asked for hearings to be opened.
963
00:48:26.550 --> 00:48:30.930
Clerk Magistrate decided that the hearings would be open.
964
00:48:30.930 --> 00:48:32.850
Media organizations then asked
965
00:48:32.850 --> 00:48:35.220
for applications for complaint.
966
00:48:35.220 --> 00:48:38.070
Clerk Magistrate said, "No."
967
00:48:38.070 --> 00:48:41.613
Media organizations filed the single justice petition.
968
00:48:43.350 --> 00:48:45.750
The record, seems to me, is silent
969
00:48:45.750 --> 00:48:48.073
on when the John Does received notice.
970
00:48:48.073 --> 00:48:50.253
And why is that not a problem?
971
00:48:51.750 --> 00:48:56.730
So these show cause hearings as they're called
972
00:48:56.730 --> 00:48:59.580
are presumptively closed.
973
00:48:59.580 --> 00:49:04.580
So that's a right that these potential defendants have.
974
00:49:06.180 --> 00:49:11.180
And it was taken away without so much as a word.
975
00:49:13.050 --> 00:49:16.210
Your Honor, I'm not aware of any case law
976
00:49:17.098 --> 00:49:20.850
in the Commonwealth, any constitutional requirements,
977
00:49:20.850 --> 00:49:23.130
federal or state--
So in deciding whether
978
00:49:23.130 --> 00:49:26.730
to open the show cause hearings,
979
00:49:26.730 --> 00:49:30.480
the magistrate was supposed to consider
980
00:49:30.480 --> 00:49:35.480
the interest in privacy of the individuals.
981
00:49:37.650 --> 00:49:40.020
And how could she have done that
982
00:49:40.020 --> 00:49:42.450
without even giving them the opportunity
983
00:49:42.450 --> 00:49:45.753
to marshal arguments as they have here,
984
00:49:46.950 --> 00:49:50.910
as to why their privacy interest should trump?
985
00:49:50.910 --> 00:49:53.190
Clerk Magistrate's decision speaks for itself,
986
00:49:53.190 --> 00:49:55.320
and there was no abuse of discretion here.
987
00:49:55.320 --> 00:49:57.213
She did consider those factors,
988
00:49:58.117 --> 00:50:00.967
and there's nothing in this--
But in our legal system,
989
00:50:02.910 --> 00:50:06.933
it relies on the so-called crucible of litigation.
990
00:50:09.360 --> 00:50:12.870
And in the absence we have one side arguing one thing,
991
00:50:12.870 --> 00:50:15.570
and we have nobody on the other side.
992
00:50:15.570 --> 00:50:17.130
Understood, your Honor.
993
00:50:17.130 --> 00:50:19.560
Nothing the Clerk Magistrate did here is contrary
994
00:50:19.560 --> 00:50:23.880
to the state's common law or statutory law.
995
00:50:23.880 --> 00:50:27.420
I suppose if this court wanted to prospectively,
996
00:50:27.420 --> 00:50:30.239
it could mandate--
And that may be just
997
00:50:30.239 --> 00:50:31.939
because no one's done this before.
998
00:50:32.881 --> 00:50:35.520
It may be, it may be,
999
00:50:35.520 --> 00:50:38.193
but again there's nothing in the complaint standards,
1000
00:50:39.057 --> 00:50:40.010
in this court's decisional law,
1001
00:50:40.010 --> 00:50:42.330
in the appeals court's decisional law
1002
00:50:42.330 --> 00:50:46.750
that required notice and a right to be heard in this context
1003
00:50:47.910 --> 00:50:51.000
Can you address the stigma plus argument
1004
00:50:51.000 --> 00:50:55.170
that this does rise to a due process violation?
1005
00:50:55.170 --> 00:50:57.060
Because it's not just stigma,
1006
00:50:57.060 --> 00:51:00.210
but it's gonna have consequences.
1007
00:51:00.210 --> 00:51:02.223
You may lose your job.
1008
00:51:04.200 --> 00:51:07.320
Yes, your Honor, for there to be stigma plus,
1009
00:51:07.320 --> 00:51:10.710
my understanding is there would need to be a denial,
1010
00:51:10.710 --> 00:51:14.070
a deprivation of governmental benefits.
1011
00:51:14.070 --> 00:51:14.940
We don't have that here.
1012
00:51:14.940 --> 00:51:17.310
At least we don't have evidence of it.
1013
00:51:17.310 --> 00:51:18.150
It seems it would've been easy enough for any
1014
00:51:18.150 --> 00:51:21.000
of the John Does to put forth some sort of evidence
1015
00:51:21.000 --> 00:51:23.970
of what type of governmental benefit
1016
00:51:23.970 --> 00:51:26.340
they might lose or were at risk of losing
1017
00:51:26.340 --> 00:51:27.900
that is to happen here.
When they have done that
1018
00:51:27.900 --> 00:51:31.200
without notice?
They could have done it
1019
00:51:31.200 --> 00:51:32.790
before the single justice, they could have done it
1020
00:51:32.790 --> 00:51:34.350
before this court, and they have not.
1021
00:51:34.350 --> 00:51:37.170
So you think that latter process fixes
1022
00:51:37.170 --> 00:51:40.323
the original potential error in process?
1023
00:51:41.280 --> 00:51:42.540
Not necessarily, your Honor,
1024
00:51:42.540 --> 00:51:43.710
and again, I wouldn't concede
1025
00:51:43.710 --> 00:51:45.900
that there was an error in the original process.
1026
00:51:45.900 --> 00:51:48.210
Everything the Clerk Magistrate did in the original process
1027
00:51:48.210 --> 00:51:51.243
was in accord with the Law of the Commonwealth.
1028
00:51:52.650 --> 00:51:55.740
I'm confused here, but I'm also new here.
1029
00:51:55.740 --> 00:51:58.590
So do the parties normally have the ability
1030
00:51:58.590 --> 00:52:02.580
to put new information in front of the single justice
1031
00:52:02.580 --> 00:52:04.830
when they're asking the single justice
1032
00:52:04.830 --> 00:52:07.860
to review the lower court judge's decision
1033
00:52:07.860 --> 00:52:09.360
for abuse of discretion?
1034
00:52:09.360 --> 00:52:11.260
Because I thought that wasn't allowed.
1035
00:52:12.300 --> 00:52:13.133
Yes, your Honor.
1036
00:52:13.133 --> 00:52:15.697
It seems that that would not be allowed.
1037
00:52:15.697 --> 00:52:19.620
Right, so going back to Justice Wendlandt's question then,
1038
00:52:19.620 --> 00:52:21.390
when would they have had the opportunity
1039
00:52:21.390 --> 00:52:23.880
to put in this additional information you're suggesting
1040
00:52:23.880 --> 00:52:26.250
they could have when they didn't receive notice
1041
00:52:26.250 --> 00:52:30.150
of the initial request, and they can't supplement
1042
00:52:30.150 --> 00:52:33.420
the record when it goes up before the single justice.
1043
00:52:33.420 --> 00:52:35.550
Although they could have even asked for the matter
1044
00:52:35.550 --> 00:52:38.940
to be remanded for the Clerk Magistrate
1045
00:52:38.940 --> 00:52:40.950
to consider that information.
1046
00:52:40.950 --> 00:52:43.230
But I think it's telling, especially where the John Does
1047
00:52:43.230 --> 00:52:46.050
have not hesitated at all to argue facts,
1048
00:52:46.050 --> 00:52:48.420
to talk about facts outside of the record.
1049
00:52:48.420 --> 00:52:52.050
They did not list any facts outside of the record
1050
00:52:52.050 --> 00:52:55.050
about what governmental benefits they might be losing.
1051
00:52:55.050 --> 00:52:58.260
And also the issue is not a factual issue there,
1052
00:52:58.260 --> 00:53:00.420
it's a legal issue there.
1053
00:53:00.420 --> 00:53:02.550
The issue is notice and the ability
1054
00:53:02.550 --> 00:53:06.153
to argue privacy versus accountability.
1055
00:53:07.170 --> 00:53:09.450
We're not fighting the facts here
1056
00:53:09.450 --> 00:53:14.450
or at the Clerk Magistrate level until the hearing, right?
1057
00:53:14.670 --> 00:53:15.900
So I'm not sure--
That's right--
1058
00:53:15.900 --> 00:53:18.450
Well, the hearing is the show cause hearing
1059
00:53:18.450 --> 00:53:20.490
to determine probable cause as to whether
1060
00:53:20.490 --> 00:53:22.080
or not they actually committed the crime
1061
00:53:22.080 --> 00:53:24.180
suggested in the application.
1062
00:53:24.180 --> 00:53:28.080
This is about whether or not that hearing will be public.
1063
00:53:28.080 --> 00:53:30.960
But your Honor, it's a matter of due process,
1064
00:53:30.960 --> 00:53:33.630
as a matter of constitutional law,
1065
00:53:33.630 --> 00:53:36.690
the right to notice, the right to be heard
1066
00:53:36.690 --> 00:53:38.190
actually doesn't even arise until
1067
00:53:38.190 --> 00:53:39.783
after the show cause hearing.
1068
00:53:39.783 --> 00:53:41.720
It's a matter of constitutional analysis.
1069
00:53:41.720 --> 00:53:43.350
Is that substantive due process
1070
00:53:43.350 --> 00:53:45.030
or procedural due process?
1071
00:53:45.030 --> 00:53:47.380
I believe it would be procedural, your Honor,
1072
00:53:49.663 --> 00:53:51.063
the notice and a right to be heard.
1073
00:53:51.063 --> 00:53:53.307
The notice is the charging document,
1074
00:53:53.307 --> 00:53:55.380
and the hearing is the arraignment.
1075
00:53:55.380 --> 00:53:58.530
So the test for opening the hearing though is a balance
1076
00:53:58.530 --> 00:54:01.140
between the privacy interests
1077
00:54:01.140 --> 00:54:05.010
of the potential defendants and the public interest.
1078
00:54:05.010 --> 00:54:08.970
How would you get that first side if you don't have notice?
1079
00:54:08.970 --> 00:54:10.680
I'm just a little stuck on that.
1080
00:54:10.680 --> 00:54:13.401
The side of the individual's interest.
1081
00:54:13.401 --> 00:54:14.234
Yeah, you're supposed supposed to weigh
1082
00:54:14.234 --> 00:54:16.740
the public interest against the private interest
1083
00:54:16.740 --> 00:54:19.110
before you open it, that's the test, right?
1084
00:54:19.110 --> 00:54:23.340
Well, in this case, again the Clerk Magistrate's decision
1085
00:54:23.340 --> 00:54:25.890
speaks for itself, but there was no abuse of discretion.
1086
00:54:25.890 --> 00:54:27.390
She clearly accounted for it.
1087
00:54:27.390 --> 00:54:28.680
Could she have had more information?
1088
00:54:28.680 --> 00:54:29.961
Of course.
1089
00:54:29.961 --> 00:54:30.794
Could she have better information?
1090
00:54:30.794 --> 00:54:31.627
Possibly.
1091
00:54:31.627 --> 00:54:33.540
But she did--
Could she have information
1092
00:54:33.540 --> 00:54:38.130
from the source whose interests were jeopardized?
1093
00:54:38.130 --> 00:54:40.623
That doesn't seem required at all to you?
1094
00:54:41.610 --> 00:54:43.110
There's no requirement in the law
1095
00:54:43.110 --> 00:54:44.670
of the Commonwealth for that.
1096
00:54:44.670 --> 00:54:47.160
So the only information, and I may be wrong
1097
00:54:47.160 --> 00:54:50.010
on this as well, I understood she had was
1098
00:54:50.010 --> 00:54:52.290
a press release from the US Attorney's Office
1099
00:54:52.290 --> 00:54:54.750
that was the only, let's call it,
1100
00:54:54.750 --> 00:54:57.190
factual information that she had
1101
00:54:58.740 --> 00:55:02.370
in conducting her balancing of interests.
1102
00:55:02.370 --> 00:55:04.227
She had the applications for complaints
1103
00:55:04.227 --> 00:55:07.320
and the police reports in support of the applications.
1104
00:55:07.320 --> 00:55:10.110
True, thank you.
And I'm trying to understand
1105
00:55:10.110 --> 00:55:14.490
the remedy, so when the Clerk Magistrate,
1106
00:55:14.490 --> 00:55:18.897
after receiving the single justice questions,
1107
00:55:20.250 --> 00:55:24.090
is she presented with briefing from the John Does or not?
1108
00:55:24.090 --> 00:55:26.550
Does she have legal analysis
1109
00:55:26.550 --> 00:55:29.100
from the John Does at that point?
1110
00:55:29.100 --> 00:55:30.750
I don't believe she did.
1111
00:55:30.750 --> 00:55:33.420
I don't believe she had legal analysis
1112
00:55:33.420 --> 00:55:35.700
from any of the sides at that point.
1113
00:55:35.700 --> 00:55:40.530
But I may be wrong on that.
So I'm just trying
1114
00:55:40.530 --> 00:55:45.460
to understand the remedy, if you lost, the remedy would be
1115
00:55:46.860 --> 00:55:49.740
more that it would go back to the Clerk Magistrate
1116
00:55:49.740 --> 00:55:54.570
with an opportunity for briefing by the John Does?
1117
00:55:54.570 --> 00:55:55.893
Is that what the, 'cause?
1118
00:55:57.030 --> 00:56:00.510
I suppose, your Honor, and it gets tricky,
1119
00:56:00.510 --> 00:56:03.120
and in the brief we argue the resources issue
1120
00:56:03.120 --> 00:56:05.730
and we argue sort of the difficulty
1121
00:56:05.730 --> 00:56:07.620
of there being hearings about hearings,
1122
00:56:07.620 --> 00:56:09.930
or hearings about hearings about hearings.
1123
00:56:09.930 --> 00:56:12.780
Right.
But it certainly
1124
00:56:12.780 --> 00:56:15.990
doesn't seem unreasonable for accused individuals
1125
00:56:15.990 --> 00:56:17.550
like the accused individuals here
1126
00:56:17.550 --> 00:56:21.690
to be given a chance to submit written materials
1127
00:56:21.690 --> 00:56:24.450
just in the way that the media organizations submitted
1128
00:56:24.450 --> 00:56:27.100
written materials to ask for the hearings to be open.