-: SJC-13551.
Trustees of Boston University et al
versus the Clerk Magistrate of the Cambridge District Court.
-: Okay, we'll start with Attorney Pyle.
(Pyle clears throat)
-: May it please the court, Jeffrey Pyle for WBUR,
the Boston Globe and NBC10.
The Clerk Magistrate did not abuse her discretion
by deciding that these show cause hearings
should be held open to the public.
The Eagle Tribune case and the complaint standards say
that it's appropriate to open show cause hearings
where two conditions are met.
An application is one of special public significance
and legitimate public interests
outweigh the accused's right of privacy.
Both prongs were clearly met here,
and her decision to open the hearings was
therefore not an abuse of discretion or error of law.
There are three main reasons why that's the case.
First, these applications derive from a federal indictment
against an interstate brothel operation.
These are not your typical district court charges.
The indictment attracted national news coverage.
-: Counsel, can I interrupt you for a second
to ask a question just about the facts?
When did the interveners get notice of the request?
-: I do not believe, your Honor, that the record is clear
on that because it's my understanding
the notice would've come from the clerk.
There's no file, there's no document
in the record showing precisely when each
of the John Doe parties got notice.
Some of them stated in their applications
that it was sometime in January as, to my recollection.
-: And I'm sorry, so when was the request made
to open the hearings?
-: The request was made to open the hearings
in late December, I believe just before Christmas.
Wendlandt: Were they given an opportunity to be heard?
-: Not in the sense of going before the clerk
and asking that the hearings be maintained enclosed--
-: Right. -: In a closed case.
-: So I also didn't see any, I mean,
thank you for whoever it was who submitted RA35
because I noticed it, and I was concerned about that.
-: Thank you, your Honor. -: I take it that that request,
as far as we know, was never received by any of the Does?
-: As far as we know-- -: At least the record
doesn't show it. -: The record doesn't show
that it would've been, -: We couldn't assume
that they did. -: Correct.
-: We can't assume also that they received notice
through some other means, correct?
Other than perhaps some inference drawn
from their own papers.
-: At whatever time they were notified
of the scheduling of the Clerk Magistrate's hearing.
I suppose one could assume
they received some indication at that point.
Wendlandt: I didn't see anything on the docket.
-: No, your Honor-- -: Well, the docket
is the official record. -: Correct.
-: Right, and to the extent that there are any individuals
who may have received some form of actual notice,
let's call it.
We can't say, I take it, that all of them did?
-: Well, it depends on what time, I think,
what timeframe we're talking about here.
The request for access was made just before Christmas.
That was granted, I believe, just after Christmas,
the request for the applications
was made on or around December 27th.
By early January, we filed our application
for emergency review.
I believe the date there is January 12th.
-: Right, so let's talk about though before the motion
to open the hearing was allowed.
Do we have any information in the record
that the Does were given notice
and an opportunity to be heard?
-: No, your Honor, we did not. -: Okay.
And my second follow up question for that is,
everyone seems to treat all of the Does
as a clump as though every individual,
putative defendant or defendant charged person
as rights and interests are identical as a class.
And I'm just unaware of any criminal case
where that has been handled in that way.
Can you point me to one?
-: We've pointed to Wanda in the record,
it was a single justice appeal involving
the opening of a clerk's hearing
where there was a large melee somewhere up
on the North Shore and the single Justice treated all,
I believe, eight defendants in that case the same
and open up the clerk's hearings for them all as a group.
And that is not inappropriate or an abusive
of discretion under the standard that you have before you,
where the court has to look at the general balancing,
the privacy interest, yes, of individuals
against a general public interest in the incident itself.
And in this case you have-- -: Well, it might be if,
I mean in this case, the argument is
that the balancing entails consideration
of the defendant's status, occupations, things like that.
So why wouldn't it be the case when those types
of considerations are at issue that you would need
to have some kind of particularized treatment?
-: Well, there's no indication in the record
that the Clerk Magistrate did not review
the applications themselves when deciding
whether or not to open up the hearings.
And in that sense, the Clerk Magistrate,
I think could be presumed to have given some consideration
to each of the applications when she decided
to open them all up.
Yes, she treated them. -: Why would we make
that presumption or assumption
when she doesn't make a finding to say that she did that?
-: We know that all of the applications were also given
to the single justice during the proceedings
to decide whether or not she abused her discretion.
The single justice had those applications.
But it would seem to me that in reviewing this
under an abuse of discretion or error of law standard,
unless there has to be a showing of an abusive discretion
and the showing that she had all the applications,
I don't think that one would necessarily presume
that she didn't review the applications
that she had in her file or that the single justice
would not have reviewed the applications as well.
-: She didn't make a finding either that she did,
nor did she make a finding to say
that she based her decision upon her review of those.
How do we get to that conclusion you're asking us to draw?
-: It strikes me, your Honor, that one would presume
that a clerk magistrate faced with a request
to open up the hearings would look at the applications
before deciding whether or not to open up
The hearing, it seems like-- -: Is her differential
treatment of the applications suggestive
that she has done that type of individualized consideration?
'Cause she's treating the complaints differently
because of the possibility of individual mistakes.
-: Well, certainly she is treating the complaints differently
And the question being, of course,
the decision to open up the hearings happened
before the decision to deny access to the complaints.
But it does strike me as a safe assumption
that the Clerk Magistrate would've looked
at the complaints in both instances,
and returning again to the standard of review
of abuse of discretion or error of law.
When you look at the factual circumstances
of these accused, they are alleged
to have supplied the demand side
for an interstate brothel operation
that resulted in a federal indictment--
-: I see your point on that, and I think we understand,
do you wanna address the differential treatment
of the complaints? -: Yes, thank you, your Honor.
You wanna affirm the first part,
but you wanna reverse the second part?
-: While you're thinking about the answer to that,
I guess I'm just wondering practically speaking,
why you would've appealed that order
or her decision not to release the complaints
or the names when at the hearing,
you would have gotten that information anyway?
-: Well, your Honor, we have a lot
of experienced journalists who work for the Globe
and for WBUR who have attended clerk's hearings before
and have a lot of experience with
how they operate in practice.
And the concern was that when you go to a hearing,
sometimes a name will get called out,
say John O'Brien and maybe John O'Brien is there
in the hearing room, or maybe he's not,
you're not required to be there in a clerk's hearing.
The Clerk Magistrate then said, okay,
a complaint shall issue.
And then that's the only information
that anybody attending the hearing would have.
You wouldn't be able to report which John O'Brien
of the many that exist in the greater Boston area
was charged with the crime. -: But once the complaint
issues then you are in a different regime, aren't you?
Because now there isn't a complaint,
probable cause has been found,
and presumably then the records are open?
-: Well, presumably after some period of time
when the paperwork is processed,
then maybe some days later there would be
some release of documents-- -: So yes, they'll be open
because of the limits of reality, it won't be instantaneous,
but why would it be a requirement that you get notice
a day before the day of, as opposed to attending
the hearing and then having the corrections
of any errors in John O'Brien's name
be corrected at that point?
-: Well, when you look at the First Amendment
in common law access cases, and I recognize
this is not a First Amendment or common law case.
They talk about how important it is
that news media access be simultaneous
with the actual event in court.
Delayed access is not the same as contemporaneous access--
-: Right, but you have the contemporaneous access
to the hearing. -: To the hearing,
but the concern again was it would be
in some cases almost an anonymous hearing
where you would not know exactly
which person was actually charged.
And what the news media, of course wants
to do is inform its readers-- -: Because of an inability
to comprehend the name called is that--
-: In the case of a very common name,
you wouldn't be able to distinguish
who was actually charged without access
to things like the address and the city
where the person comes from.
And also, there are some circumstances where the facts
that underlie probable cause may not be completely recited
in open court such that the news media wouldn't be able
to understand exactly what the reason
for the probable cause determination was.
There could be some parts of the police report,
for example, that are skipped over and not discussed.
And especially in the case of an accused party
who doesn't show up, there wouldn't necessarily be a need
for the police officer to recite
every single last word of the police report.
-: Can I ask, in your briefs, you criticize
the Clerk Magistrate for not allowing sort
of a last minute distribution of the complaints.
Did you even argue that to her?
-: Well, your Honor, based on the way things happened
procedurally, there was no occasion
to argue that to her at the time
Because-- -: Or brief it to her.
-: Because the hearings were scheduled
to be heard very shortly
after we made the request for the complaints.
And then when we filed our single justice application
on January 12th, our information was
they would be held on January.
So we would've gotten those applications
just before the hearing. -: And here we are in September
because now the matter was stayed
after we filed our application and after we filed our motion
the underlying Clerk Magistrate's hearings
were stayed pending the outcome of this access question.
But the standards that govern applications
for criminal process are the same
as those that govern access to the hearing.
The complaint standards say that they are the same standards
and this court has treated them the same in the global case.
-: Well, it's a balancing of interest,
privacy and transparency. -: In both cases, yes.
-: And she does a nuanced analysis
of why we should treat the complaints differently.
That there may be errors in them that could be corrected,
that they would be released ahead of time,
and then the people affected wouldn't have any chance
to respond, but in a hearing
they would have a chance to respond.
So she does a balancing of those interests carefully.
Can we really find that's an abuse of discretion?
-: I think, your Honor, that the abuse of discretion
or error of law is the assumption that as she says
in the findings in support of her decision,
that the release of the applications would have
to be weeks or longer before the hearings themselves.
-: But that's why I asked you that question.
You didn't really argue that to her.
-: Well, no, we didn't argue that
to her because of the-- -: Timing of it.
-: The way in which-- -: But the fact that you want
the applications themselves and the reasons
that you've articulated now at oral argument
as to why really seems to me to buttress
the Clerk Magistrate's decision
because there's a difference in the level
and depth of information available in the applications
than might occur in the open hearings.
-: Well. -: And so although the factors
to be weighed are the same, the facts are different.
And so the outcome, although initially maybe odd
to open one and not the other is understandable
because of the level of detail in the applications
that may or may not come out during the show cause hearing,
-: Having not seen the applications,
of course, we can only speculate
however the US attorney's state--
-: But you just did at oral argument right now,
a few minutes ago you said, we need the applications
because we are experienced
with attending show cause hearings
and we understand that names can get botched,
details like address, whatever the reason
you want the complaint is exactly evidence
that they're different in kind.
And so to find that the Clerk Magistrate
abused your discretion would be
difficult given the differences
that you've articulated well.
-: Well, thank you your Honor.
My point in raising the fact that we have
to speculate is not to disparage speculation
in these circumstances, it's necessary,
but when the US attorney announced the charges,
they said essentially these people put their names
into web forms with their name,
email address, cell phone number,
and place of employment and a reference if they had one.
And that the probable cause,
I think, from the statement derives from the fact that
they got that information. Not all that information's
really relevant to the allegations, right?
You're gonna release information on where someone works.
I understand that may be important
if the person works at the State House,
but it may not be important if they work
at some business up the street
that the press and no one else
has any particular interest in, right?
-: Well, what the US attorney has said is
that these are high level customers of this brothel
who work in positions of public trust,
including elected officials, public officials,
high level pharma employees,
or scientists. -: Do you think
a press release is evidence
or to be given the same weight as an affidavit
or some statement made under oath?
-: No, your Honor, I wouldn't say as a general matter
that a press release is of the same ilk as that,
notwithstanding the public interest doesn't rely solely
on whether or not the statement is sworn.
What the public perception will be
if these hearings are closed or if these applications
don't allow for the proper reporting
of these hearings is that anybody
who is not charged will have not been charged
because they got some kind of preferential treatment
behind closed doors at the hearing,
and that is a significant concern
as this court has said in the Eagle Tribune case
and in the Boston Globe case.
And in fact there's other parties here
who have argued, well, what if there is no probable cause
then I won't be able to get my reputation back.
But this court in the Eagle Tribune case itself said
that even when there is no probable cause found,
that may be where access is the most important
because it helps to ensure the public
that equal justice is being done
among these different defendants
who come from different walks of life.
-: Okay, thank you very much. -: Thank you.
-: Attorney Urbelis.
-: Good morning your Honors, may it please the court,
Benjamin Urbelis for the John Doe appellants.
Just like grand jury proceedings, show cause hearings are
presumptively private and that's so
that the livelihoods and families of those
during an investigation aren't ripped apart
before there's even probable cause found.
That's been the standard with an 80 year history,
including the legislature twice rejecting bills
that would've made these hearings public.
We're only here today because the United States attorney
made an improper comment about public officials being among
the uncharged purchasers in a multi-state sex trafficking
investigation with brothel from Massachusetts to Virginia.
-: What precluded the United States attorney
for making that you say, it's improper, why?
-: I suggested it's improper based on Department
of Justice policy where while there were
indicted individuals in the federal case
commenting on uncharged investigations is against DOJ policy
I also wanna point out that the Mass rules
of professional conduct has a specific section
where it describes that prosecutors
shouldn't be making comments on individuals
that would heighten public condemnation.
And with respect to that statement,
it applied to this multi-state investigation
from Massachusetts to Virginia.
It didn't apply to the Cambridge John Doe specifically.
And it's important to recognize that there were brothels
just 14 miles outside of DC, the hub
of this nation's public officials.
Now unlike in the-- -: How does this statement
that you're giving us affect our analysis
as to whether or not the single justice abused
his discretion when he concluded
that the Clerk Magistrate did not abuse hers?
-: Well, I think it's important to recognize
that in the single justice's remand,
he asked the Clerk Magistrate to address several questions,
most importantly how the public interest balanced
against the, and he underlined individual privacy rights
of the accused of these non-public hearings.
She didn't address that-- -: No, she addressed that.
You may not like the balancing she did,
but she clearly a addressed it, and she explained
why she thought there was a significant public interest
in assuring the public that powerful people would not
be given preferential treatment behind closed doors.
She explains that, you may think she drew the balance wrong,
but our case law says she's supposed to do that type
of balancing in a high profile case, isn't she?
-: Well, I wanna suggest that she didn't,
when I'm saying that she didn't address it,
she didn't address the individual,
and that was specifically underlined by Judge Gaziano
because she didn't have the information
about who these individuals were,
what their privacy interests might be,
what their occupations were.
That was an individualized remand question
that she didn't address. -: But doesn't the public,
the public is confronted with the fact
that it can't distinguish the individuals
and will be worried that people
are getting preferential treatment?
So I'm just not sure how.
-: Well I think that's a policy decision,
that's not for this.-- -: So it's the legal standard,
isn't it?
-: Well, I suggest that transparency and accountability--
-: That's in the Eagle Tribune, that's what our case says.
Those are the factors you have to consider.
Again, you have to balance privacy versus the transparency.
But she does that, we don't get to rebalance it
unless it's an abuse of discretion, right?
-: Well, I'm suggesting that she abused her discretion
because she took that statement
from the US attorney to use that in her decision,
and I don't think that that was--
-: No one's filed a board of bar overseers charge,
that that's improper, including you, right?
-: Right, well, whether it's improper or not,
it shouldn't be grounds, this vague statement
about a multi-state brothel investigation
or sex traffic investigation to suggest
that now 28 individuals with all separate interests
should have their privacy rights stripped away
because there's a chance that somebody
within those 28 is a public official.
-: But that's not what she said.
She said that there's this perception
if I don't open the hearings, that one or two
or some of the 28 is getting preferential treatment
if the complaint ultimately doesn't issue.
And to avoid that and to double down
on accountability, she opened them all.
-: Well, I would suggest that if that's gonna be
how a clerk decides whether or not to open these hearings,
that opens the door to now prosecutors
are just gonna leak information to the press
and use that as a reason to have show cause hearings
or even potentially grand jury hearings.
If there's a leak that there's a public official
among those being investigated by a grand jury,
is this gonna open the door to now TV cameras being
within grand jury proceedings?
So I think that that should not be grounds
to open up the hearings based upon
the United States Attorney's Statement.
-: In terms of process, what happened after remand?
Was there a hearing?
-: The Clerk Magistrate issued a response,
and then the single justice issued his decision.
-: Okay, so the defendants were not heard,
given an opportunity to be heard?
Was there an opportunity given to be heard
from the defendants upon remand?
-: No, there was not.
And I also wanna address the fact that upon the applications
of the media to open up these hearings,
the decision was issued two days later.
The John Does didn't even know
that they were defendants in this case, let alone notice
to have an opportunity to be heard.
And these are liberty interests because undoubtedly,
even if there's no probable cause, once their name is
out there in the media, livelihoods are gonna be ruined,
occupations, likely lost families ripped apart,
their children's families, excuse me,
their children are gonna have to deal with this at school.
So I would suggest that they did have a due process right
to be heard. -: And can you tell me
anything about the status of Does 19 through 28?
-: I cannot, what I can say is that the five John Does
that I represent are not public officials,
and this would be strictly them.
-: Oh, I wasn't asking for anything outside the record.
Just they haven't appeared, is that correct?
-: I have no information. -: Okay.
-: So just to follow up on Justice Wolohojian's question
about procedure, notice was obtained at some point
in January by the Does? -: Correct,
after the magistrate's decision.
-: After the magistrate, but before the single Justice, or?
I'm just trying to get the timeline.
-: Yes, notice was provided to the John Does
and several of which appealed -: Okay.
-: To the single Justice. -: Okay.
As interveners? -: Yes.
-: Yes, okay, so at that point upon remand notice was had
in, well, at least speaking for your clients,
was there a request to be heard at that point?
-: I don't believe so. -: Okay, thank you.
-: So explain to me the due process argument.
So normally stigma is not enough
for a due process violation, right?
-: Right. -: So tell me
why your case is different?
Why is this different?
'Cause we have a bunch of cases
that say this doesn't rise to a due process level.
-: Right, well, stigma alone does not,
but I would suggest that this is what's known as stigma plus
Given the salacious nature of the allegations in this case,
and given the widespread media coverage,
in this day and age where everyone has
that information at their fingertips
pretty much 24 hours a day, a undoubtedly the media is gonna
then lead to people losing their jobs
and livelihoods, which is a liberty interest.
-: You said that in your brief,
and you've said it now twice at oral argument.
Do I take judicial notice that undoubtedly
these people will lose their jobs
if probable cause is not found, and no complaint issues?
Urbelis: I'd ask the court to do so.
-: And what would be my legal authority for doing that?
-: Well, I would suggest that especially
if people have professional licensures,
I just think that it's common sense
that they will undoubtedly lose their jobs,
lose their professions, and have their lives ripped apart.
-: If the complaints had actually issued,
I can see your argument maybe, but they're getting process,
there will be a hearing, there's gonna be process.
We don't even know how this hearing
would be conducted exactly at this point.
The Clerk Magistrate may put their own set
of limitations on that hearing.
So how does that really rise to a due process violation?
'Cause you're gonna have a say, you're gonna be there
arguing this seriously, you're going to be filing motions,
keeping your clients name as private as possible,
I'm sure, so how is that a due process violation?
-: Well, I think that without giving them notice--
-: Well, they have notice now.
There's been no release of these people's
private information yet, there's full notice at this point.
And they're all represented by counsel, I assume,
and all counsel is gonna be present at this hearing,
arguing as effectively as you're doing right now.
-: Well, I would suggest that if there is a hearing
prior to the show cause hearings
where the clerk is gonna take these matters--
-: We don't know how the hearing is gonna be conducted.
There's gonna be process at that hearing.
There are gonna be a set of rules
in place for that hearing, I assume.
And there may be extra protections provided.
We're not deciding how that hearing's being conducted.
The question is whether it's public or not.
-: Right, well, I'm suggesting that if this court
upholds that decision, then that's what this is about,
the show cause hearings will be made public.
There's no way to prevent that from happening
and prevent their names and their identities
from getting out there.
-: Okay, thank you. = Thank you
-: Attorney Mahoney.
-: Good morning your Honors, and then may I please the court,
I think I'd like to start with the petitioner's brief,
Mr. Pyle's brief, page 27.
The petitioners may or may not determine that the identities
of all 28 individuals are sufficiently newsworthy
to publish in news reporting.
So the Boston Globe would like all the information on all
the individuals while at the same time conceding that some
of these individuals might not interest them at all,
that they might not even be worthy
of a line in the newspaper.
-: But the issue is whether the public is comfortable
that there's not preferential treatment
for the ones who are powerful.
And how do you know if it's not public?
-: That seemed to be the primary concern
of the Clerk Magistrate, was the public perception,
that she might not be even-handed.
That seemed to be her primary concern.
-: That's the judiciary's primary concern
that we're even-handed, impartial.
-: That's correct.
And that's certainly the way it should be.
Unfortunately, in order to achieve that goal,
her decision results in other people
who would not normally be caught up in this,
would not normally be reported in the media
whose hearings would never be open.
They're sacrificed, and do we want
to sacrifice individuals to maintain the perception
of the public or the media that that this has been handled
even-handedly all of these--
-: Would your-- -: That's just a balancing test
and you call it sacrificing the individuals,
but I think the test has been well articulated as a balance.
And so sometimes the individual's privacy interest
is overridden by the public interest in matters
of public concern that have received the type
of notoriety that this one has.
-: The brothel,
and the potential participants, the customers.
Yes, and I conceded that in my brief.
There are individuals, as I understand it,
based on Acting Attorney Joshua Levy's statement,
that would absolutely be a public interest.
If politicians visited that brothel,
that's a matter of public interest
for the reasons that I outlined in my brief.
If someone with a security clearance could conceivably have
been compromised, that's a matter of public interest.
But when Acting US Attorney Joshua Levy identified
these individuals by profession,
he didn't say firefighter or plumber or electrician
because nobody in the media would've cared.
If those were the only professions that he listed
Boston Globe wouldn't be seeking permission
to open the hearings.
-: Do you wanna address Justice Wolohojian's point
that she brings up earlier that there has
to be an individualized separate analysis,
that it's required as part of the process?
'Cause I don't think you're going to get very far
by just arguing the point you're arguing
unless you sort of connect it to a legal point.
-: The legal point your Honor, is
there should have been individualized findings.
Because if we look at the actual language of the statute,
it refers to an application or it refers to an incident.
This was not one incident, this wasn't like the other matter
where there was a melee, it was all one incident.
These are all separate incidents.
These are all separate individuals
who are being accused of these crimes.
And they didn't participate in anything jointly.
So for each individual, there should have been an assessment
because if an assessment is done and the individual is
of no interest to the public,
no interest to the public whatsoever,
does not hold an office of any note,
no position of any prominence.
-: But how can you make that determination as an abstraction?
Okay, so one of your clients has an ordinary job.
He doesn't work at the State House.
We don't know if he's related to someone
who works at the State House or friends
with somebody who has powerful connections, right?
So I'm not sure how this works 'cause we can't judge
just by someone's job whether they're connected, right?
-: I agree, I agree that that's a valid point,
but I think that should be part of the clerk's analysis
before she makes a decision for each individual.
I know that the Attorney General has brought up the fact
that this might be difficult time-wise
for the clerk to manage, but she could schedule a hearing
without notifying the public.
She could hold that hearing behind closed doors,
and during the course of that hearing,
she could make an individual assessment as to whether or not
-: But isn't that exactly-- -: This should be open.
-: The situation the Clerk Magistrate articulated
she wanted to avoid, that she would be treating
or perceived to be treating individuals
differently based on position and power?
-: That is correct.
-: You have a behind closed doors hearing
whether or not it's true, the perception is
that people are being treated differently.
-: But may I say that in every Clerk Magistrate's hearing
that is closed to the public--
-: Which is the default. -: Would that not also
be a concern that individuals whose matters
have not been reported and do have some connections are
in there in a closed door meeting with the clerk magistrate,
and using the influence that that individual possesses
to persuade the Clerk Magistrate to dismiss the matter?
I mean, isn't that always a concern?
-: You're making her point. -: Yeah, I think that's--
-: But if it's always a concern,
then why wouldn't we open all the hearings
to dispel that concern?
Why would the default position be
that the hearings are closed when that issue
could surface in any hearing?
-: But now we have a situation that has rightly
or wrongly received public notoriety.
And so we have these 28 potential defendants,
and to treat them differently behind closed doors
is the reason why the Clerk Magistrate said,
"I can't do that."
It would indicate to the public that of the 28,
a few of them are being treated differently
and the public would never know why.
-: In part of my brief, what I emphasized was
that the system to function properly
and to protect individuals like my client,
it requires a certain amount of trust.
And then I went on to say that we all have our positions
and certainly the justices of the Supreme Judicial Court
are the highest attorneys in the Commonwealth.
And you wouldn't have achieved these positions
unless you were trustworthy.
The clerk, Ms. Casey, she's a very trustworthy individual.
There has to be at least some trust
in the system for it to function.
If everything was out in the open,
if there were no sidebar conferences,
because there would be the perception of the jury
that information is being withheld from them.
If the grand jury proceedings were open to the public
because there might be the perception
that the District Attorney's Office hadn't
presented the evidence in an objective
and fair manner, then none of this,
the system would stop functioning.
So there has to be some things
where there's some confidentiality,
and everybody in certainly the court
and the Clerk Magistrate, and Justice Frank,
and the Cambridge District Court have all earned
that trust, we have to have some trust
in the system for it to function because if there's no trust
and everything is open to the possibility
that there's some corruption or some undo influence,
the system is gonna completely break down
because the purpose of these Clerk Magistrates hearings
in almost every case, and I've done a lot
of Clerk Magistrates hearings in that courthouse,
in almost every case, the probable cause standard is met,
it's gotta be greater than 90%.
But then the clerk has some discretion,
and that's where we as defense attorneys,
we explain to the Clerk Magistrate something
about our client and maybe our client
could do some community service
or maybe our client could atone in some other manner,
pay restitution to a victim.
We talk about the history of our client
and the personal attributes of our client.
All of that is done behind closed doors
because it really serves as sort of a criminal mediation.
And when you open that hearing up to the public
in its broadcast, then the mediation function,
it doesn't really function as it's designed.
And let's be honest, most of the defense attorneys
and their clients are probably not gonna attend
because we're not gonna be able to make that presentation
because that's kind of the presentation
where you reveal personal issues
with your client or personal attributes.
That's something that really is better done
behind closed doors where you can have a good conversation.
-: Thank you. -: Thank you.
Thank you very much.
-: Okay, Attorney Thornton,
-: Good morning, may it please the court,
Assistant Attorney General Gabriel Thornton
for the Clerk Magistrate of the Cambridge District Court.
The Clerk Magistrate did not abuse her discretion
in concluding that the public interest
in accessing the hearings outweighed
the individual's right of privacy.
The Clerk Magistrate appropriately supported her decision
to open the hearings with the following findings.
First, as to the public interest, she found
that the underlying criminal case, quote,
"Was widely publicized and the subject matter, conduct
generated significant interest by the public," closed quote.
Neither the petitioners nor the interveners
dispute that finding here.
Opening the proceeding for such a well-publicized case,
the Clerk Magistrate observed could prevent questions
of, quote, "Whether justice has been done
behind the closed doors of the hearing room."
-: Could you address justice Wolohojian's question
about how individualized this process has to be?
'Cause the Clerk Magistrate is dealing with them
as a group the way the US attorney's office dealt
with them as sort of as a group.
And I'm just trying to understand again,
how granular this needs to be?
-: So when the single justice remanded the matter
to the Clerk Magistrate, he ordered
that she conduct an individual analysis,
and after it was remanded, she considered
all the different factors, certainly did not abuse
her discretion and determined
that the interests in opening the hearings
outweighed whatever the individual interests might be.
-: When you say she did that on an individualized basis,
what in her decision on remand shows
that she considered the Does individually,
as opposed to a group of 28?
Specific language would be helpful.
-: Yes, your Honor.
I can't think of any specific language
off the top of my head.
She did have the applications
and the police reports in front of her.
-: Right, but that seems to me to argue against,
to go run against this argument of yours
because with respect to the applications,
she ruled the other way.
Do you see what I'm saying?
-: I see what you're saying, your Honor.
But I wouldn't agree that it cuts against the argument
because with respect to the applications,
the analysis still wasn't an abuse of discretion.
She could essentially consider them
as a group of 28 just as she did.
-: Do we have any other balancing test in a criminal context
where the defendant's privacy,
and also we're talking here about a presumption
that ordinarily applies in favor of the charged person,
accused person where people who have committed crimes
on different days, allegedly committed crimes
on different days, there's no allegation
that this is a joint enterprise on their part.
They are charged individually with committing
individual crimes separately on different days
that their due process and interests
have been considered as a clump.
-: Well, it's not a clump, the federal case is unified.
So we have a unified federal prosecution of the traffickers.
But on the state side, this is gonna be
as Justice Wolohojian said, an individualized one.
So they're not a clump, but the federal organizing principle
doesn't neatly apply on the state side, does it?
Or does it?
I just don't know.
-: Pardon me if this doesn't directly answer the question,
but if we go back to base principles of due process,
there is no liberty or property interest here,
there is no constitutional right
that we're talking about in this context.
We're talking about a Massachusetts statute.
-: So counsel, are you saying,
which is the government's position?
Is the position that individualized hearings were not
required because there is no liberty interest?
Or is it that per the single justice's order,
the magistrate conducted and considered
individually the complaints?
-: The former, your Honor. -: Okay.
So she didn't consider the individual complaints
as the government's position?
-: The government's position. -: And that was okay
because there's no due process implicated.
-: The government's position is
that there's no constitutional or statutory
or common law requirement,
that nothing the Clerk Magistrate did here was an abuse
of discretion in terms of constitutional statutory law
or common law or the complaint standards.
But that once the matter was remanded to her,
she conducted the analysis of the single justice ordered.
-: We have cases like this, protests for example,
100 people are brought in at once, right?
So is there a legal requirement?
At the show cause hearing there's going
to be an individualized analysis, right?
-: That's correct. -: And the way
the Clerk Magistrate dealt with the applications provides
for an individualized look in this interim period.
So is there anything that legally requires her
prior to the show cause hearing
to again break this down individual by individual,
or can she do it at the show cause hearing?
I take it that's within her powers.
-: Your Honor, it wasn't an abuse of discretion here.
I suppose if we look at some of the language,
and there's not a lot of case law here, of course,
about Boston Globe or Eagle Tribune,
that there could be language there
that suggests at least in some circumstances
an individual analysis would be appropriate.
But-- -: There is going
to be an individualized analysis.
The question is when, right?
There has to be, there's going to be an individualized case
by case determination, right?
'Cause it's not a joint venture here.
-: Yes, your Honor, there's gonna be an individualized
analysis for the probable cause determination.
The determination whether a complaint should issue.
There's nothing that requires necessarily an individualized
analysis in the question of whether hearings should be open
to the public or whether applications
for complaints should be released prior to a hearing.
-: But if you have an individualized analysis at this point,
don't you run into the problem
where you're treating different people differently
and the public doesn't know whether
everyone's being treated fairly?
-: Yes, your Honor, certainly in these circumstances,
the Clerk Magistrate in this scenario,
let's say 28 applications for complaint,
let's say she decided to open 27 of the hearings,
but not one of them, or vice versa,
open one of the hearings, not the other 27.
The public would wonder legitimately,
whether justice had been done.
The court in Boston Globe, the 2019 case,
talks about the interests of transparency,
accountability, and public confidence in the judiciary.
What the Clerk Magistrate did here was
in line with that language, and it certainly
wasn't an abuse of discretion,
-: Do you have any authority for the notion
that the request to open the hearings
could be or should be allowed before any
of the Does received notice that the request had been made
or an opportunity to be heard on the matter?
-: Your Honor, I'm-- -: I'm looking
for some legal authority here.
-: Right. -: Case, statute
-: I'm not aware-- -: Rule.
-: Of authority that necessarily points either way.
Again, if we go back to basic--
-: Well, there is a presumption, right?
So that's a legal authority pointing one way.
It's hard for me, frankly, to conceive
of overcoming a presumption or a presumption
that runs in favor of a defendant without giving
that defendant an opportunity to be heard.
'Cause the motion was allowed here,
and if I have the chronology correct,
but correct me if I don't, the motion was allowed
before any of the Does received notice
or an opportunity to be heard.
-: That's correct, that's correct.
And again, if we go back to basic principles--
-: But before any action was took place,
because of the single justice and because of the remand,
notice was fully provided before any action,
before the action we're dealing with was, right?
-: The timeline is-- -: The horse may have got out
of the barn, but it was put back in before, right?
-: To be clear, the timeline, as I understand it,
is media organizations asked for hearings to be opened.
Clerk Magistrate decided that the hearings would be open.
Media organizations then asked
for applications for complaint.
Clerk Magistrate said, "No."
Media organizations filed the single justice petition.
The record, seems to me, is silent
on when the John Does received notice.
-: And why is that not a problem?
So these show cause hearings as they're called
are presumptively closed.
So that's a right that these potential defendants have.
And it was taken away without so much as a word.
-: Your Honor, I'm not aware of any case law
in the Commonwealth, any constitutional requirements,
federal or state-- -: So in deciding whether
to open the show cause hearings,
the magistrate was supposed to consider
the interest in privacy of the individuals.
And how could she have done that
without even giving them the opportunity
to marshal arguments as they have here,
as to why their privacy interest should trump?
-: Clerk Magistrate's decision speaks for itself,
and there was no abuse of discretion here.
She did consider those factors,
and there's nothing in this-- -: But in our legal system,
it relies on the so-called crucible of litigation.
And in the absence we have one side arguing one thing,
and we have nobody on the other side.
-: Understood, your Honor.
Nothing the Clerk Magistrate did here is contrary
to the state's common law or statutory law.
I suppose if this court wanted to prospectively,
it could mandate-- -: And that may be just
because no one's done this before.
-: It may be, it may be,
but again there's nothing in the complaint standards,
in this court's decisional law,
in the appeals court's decisional law
that required notice and a right to be heard in this context
-: Can you address the stigma plus argument
that this does rise to a due process violation?
Because it's not just stigma,
but it's gonna have consequences.
You may lose your job.
-: Yes, your Honor, for there to be stigma plus,
my understanding is there would need to be a denial,
a deprivation of governmental benefits.
We don't have that here.
At least we don't have evidence of it.
It seems it would've been easy enough for any
of the John Does to put forth some sort of evidence
of what type of governmental benefit
they might lose or were at risk of losing
that is to happen here. -: When they have done that
without notice? -: They could have done it
before the single justice, they could have done it
before this court, and they have not.
-: So you think that latter process fixes
the original potential error in process?
-: Not necessarily, your Honor,
and again, I wouldn't concede
that there was an error in the original process.
Everything the Clerk Magistrate did in the original process
was in accord with the Law of the Commonwealth.
I'm confused here, but I'm also new here.
So do the parties normally have the ability
to put new information in front of the single justice
when they're asking the single justice
to review the lower court judge's decision
for abuse of discretion?
Because I thought that wasn't allowed.
-: Yes, your Honor.
It seems that that would not be allowed.
-: Right, so going back to Justice Wendlandt's question then,
when would they have had the opportunity
to put in this additional information you're suggesting
they could have when they didn't receive notice
of the initial request, and they can't supplement
the record when it goes up before the single justice.
-: Although they could have even asked for the matter
to be remanded for the Clerk Magistrate
to consider that information.
But I think it's telling, especially where the John Does
have not hesitated at all to argue facts,
to talk about facts outside of the record.
They did not list any facts outside of the record
about what governmental benefits they might be losing.
-: And also the issue is not a factual issue there,
it's a legal issue there.
The issue is notice and the ability
to argue privacy versus accountability.
We're not fighting the facts here
or at the Clerk Magistrate level until the hearing, right?
So I'm not sure-- -: That's right--
-: Well, the hearing is the show cause hearing
to determine probable cause as to whether
or not they actually committed the crime
suggested in the application.
This is about whether or not that hearing will be public.
-: But your Honor, it's a matter of due process,
as a matter of constitutional law,
the right to notice, the right to be heard
actually doesn't even arise until
after the show cause hearing.
It's a matter of constitutional analysis.
Wolohojian: Is that substantive due process
or procedural due process?
-: I believe it would be procedural, your Honor,
the notice and a right to be heard.
The notice is the charging document,
and the hearing is the arraignment.
-: So the test for opening the hearing though is a balance
between the privacy interests
of the potential defendants and the public interest.
How would you get that first side if you don't have notice?
I'm just a little stuck on that.
-: The side of the individual's interest.
Wendlandt: Yeah, you're supposed supposed to weigh
the public interest against the private interest
before you open it, that's the test, right?
-: Well, in this case, again the Clerk Magistrate's decision
speaks for itself, but there was no abuse of discretion.
She clearly accounted for it.
Could she have had more information?
Of course.
Could she have better information?
Possibly.
But she did-- -: Could she have information
from the source whose interests were jeopardized?
That doesn't seem required at all to you?
-: There's no requirement in the law
of the Commonwealth for that.
-: So the only information, and I may be wrong
on this as well, I understood she had was
a press release from the US Attorney's Office
that was the only, let's call it,
factual information that she had
in conducting her balancing of interests.
-: She had the applications for complaints
and the police reports in support of the applications.
-: True, thank you. -: And I'm trying to understand
the remedy, so when the Clerk Magistrate,
after receiving the single justice questions,
is she presented with briefing from the John Does or not?
Does she have legal analysis
from the John Does at that point?
-: I don't believe she did.
I don't believe she had legal analysis
from any of the sides at that point.
But I may be wrong on that. -: So I'm just trying
to understand the remedy, if you lost, the remedy would be
more that it would go back to the Clerk Magistrate
with an opportunity for briefing by the John Does?
Is that what the, 'cause?
-: I suppose, your Honor, and it gets tricky,
and in the brief we argue the resources issue
and we argue sort of the difficulty
of there being hearings about hearings,
or hearings about hearings about hearings.
-: Right. -: But it certainly
doesn't seem unreasonable for accused individuals
like the accused individuals here
to be given a chance to submit written materials
just in the way that the media organizations submitted
written materials to ask for the hearings to be open.