SJC Affirms Public's Right to View Jury Selection

The Massachusetts Supreme Judicial Court issued an important decision today underscoring the right of the public and the press to sit in on jury selection in criminal cases. The opinion, Commonwealth v. Cohen, concludes that even a partial closure of the courtroom -- with some family members and non-parties allowed in -- can violate both the First Amendment rights of the public and press and the Sixth Amendment rights of the defendant.

The public trial right applies to jury selection proceedings ... which are "a crucial part of any criminal case." ... At that stage, "the primacy of the accused's right [to a public trial] is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness." ... The "sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known." ... Throughout a trial, an open court room "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." ... Thus, courts recognize a "strong presumption in favor of a public trial," ... "overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

The case arose out of jury empanelment in the criminal prosecution of David M. Cohen, an attorney and former Stoughton, Mass., police sergeant. On the fourth day of empanelment, Cohen's defense counsel noticed a sign on the courtroom door that said, "Jury empanelment. Do not enter." After learning that the sign had been on the door throughout the empanelment process, the lawyer moved for a mistrial. The judge denied the motion. The lawyer repeated his motion for a mistrial later the same day, after learning that members of the public were removed from the courtroom. Again, the judge denied the motion.

"The defendant has thus established that the jury selection procedures used in this case violated his Sixth Amendment right to a public trial; he has also shown that he did not waive this right," the SJC concluded. Finding that there would be no other way to remedy the violation, the court ordered that Cohen be granted a new trial.

Boston Flips Open Government on it Face

How does that saying go about the devil reading the Bible to his own ends? That was all I could think of as I read a report arguing that the First Amendment gives Boston city councilors the right to conduct the people's business behind closed doors. I first heard about it through a story in the Boston Herald (Secret society: City Council mulls end to open meetings) and then obtained a copy through a post to a listserv. Part of a longer report, the discussion about the open meeting law is titled Remedial response to adverse judicial decisions interpreting the state's Open Meeting Law (PDF). The most recent of those "adverse decisions" was McCrea v. Flaherty, in which the state Appeals Court ruled that the Boston City Council has repeatedly violated the open meeting law.

Thankfully, the absurdity of the report has already been pointed out by Dan Kennedy, Sam Bayard and the editorial page of the Boston Herald. I say "thankfully" because the report is so patently absurd that I would not know where to start. As someone who has spent much of the last four years working for reform of the Massachusetts open meeting laws, I can say that I agree with one conclusion of the report: the laws need reform. From there, we part company and head off in diametrically different directions.

The report is based on two premises that are not merely weak, but downright wrong. The first is that the open meeting law prohibits public officials from speaking "offline" -- from exchanging "their views, concerns, strategies and/or suggestions in private with one another." It does not. As the commentators cited above all correctly note, it prohibits private meetings only among a quorum of officials. The second premise is that this "prohibition" on private speech between public officials violates their free-speech rights. That is the most extreme contortion of the First Amendment I've ever heard or read.

The report goes on for some 30 pages before ending with three alternative recommendations for addressing this "problem":

• Option 1: Amend the open meeting law to say: "Nothing contained in this Act shall preclude an individual legislator from meeting with colleagues to build support for, gather consensus toward, or solicit cosigner for or against proposed legislation or a committee report, nor shall a gathering of members in private to discuss strategy or ascertain the level of support for an item before or coming before the body constitute a violation of this act. The term quorum shall not apply to such gatherings."

• Option 2: Delete from the law the phrase, "No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except as provided by this section," and then add language redefining the word "meeting" so that it would not apply to "deliberative exchanges, verbal or otherwise, between elected officials, singularly or collectively, seeking support for, building consensus toward or devising strategies to support or defeat legislation, or any other matter that may come before the body."

• The final recommendation -- one the report calls "the ideal arrangement" -- would be to amend the open meeting law to exempt from its coverage "local legislative bodies." In other words, just let the city council meet in private as much as it wants.
  

The Boston Herald's editorial is square on point when it refers to this report as arrogant and insulting. A Boston City Council committee was scheduled to discuss it yesterday. I have not heard what came out of that meeting. Let us hope that the councilors sent this report straight to the circular file. Yes, we need reform of the open meeting law in this state. But we need reform that strengthens and protects the public's right to know, not "reform" that protects politicians from public scrutiny.

Read the report and decide for yourself: remedialresponse.pdf.

Podcast: MBTA v. Anderson

It all started when three MIT students put together a presentation for their network security class at MIT about their findings regarding the security vulnerabilities of the Massachusetts Bay Transportation Authority's CharlieCard fare-pass system. Just as the students were about to present their findings at DEFCON, the MBTA went to federal court and won a gag order preventing them from speaking.

The case raises many issues of free speech and computer law. On this week's installment of our legal-affairs podcast Lawyer2Lawyer, we discuss these issues with our guests Tuna Chaterjee, a fellow at the Berkman Center for Internet Law and Society and a staff attorney with the Citizen Media Law Project, and Marc Randazza, First Amendment attorney with the Florida law Weston, Garrou, Walters & Mooney and author of the blog The Legal Satyricon.

Listen to our download the show from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

SJC Upholds Child Porn Law

The Massachusetts Supreme Judicial Court today issued a decision, Commonwealth v. Kenney, upholding the First Amendment constitutionality of the state law that makes it a crime to possess child pornography. The court rejected the defendant's contentions that the statute violates the First Amendment because it is vague and overbroad.

With regard to overbreadth, the defendant argued that the statute would apply to films with artistic merit, citing as an example Hounddog, a film recently released at the Sundance Film Festival that depicts the rape of 12-year-old girl. The SJC answered that argument by saying that it does not invalidate the statute and that claims of artistic merit would have to be evaluated on a case-by-case basis.

The defendant also argued that the statute is unconstitutional because it contains an impermissible scienter requirement insofar as it applies to situations in which a defendant "knows or reasonably should know" that the person is under age 18. The SJC replied that, if a defendant disputes actual or constructive knowledge of a child's age, the state meets its burden of proof by showing that the physical disparity between the subject and a person who is 18 is such that it would be obvious, beyond a reasonable doubt, to a reasonable person.

First Amendment Protects Posting of Unlawful Video

An important decision of First Amendment and Internet law came down today from the 1st U.S. Circuit Court of Appeals: Jean v. Massachusetts State Police. The court ruled that the First Amendment prevents law enforcement officials from interfering with an individual's Internet posting of an audio and video recording of an arrest and warrantless search of a private residence, even though the individual had reason to know the recording was made illegally.

The case involves Mary T. Jean, a Worcester political activist who maintained a Web site critical of former Worcester District Attorney John Conte. In October 2005, Paul Pechonis contacted Jean through her Web site. He said that on Sept. 29, eight armed State Police troopers arrested him in his home on a misdemeanor charge. After handcuffing him at his front door, the officers conducted a warrantless search of his entire house. A motion-activated "nanny cam" caught the incident on tape. Pechonis gave a copy of the tape to Jean, who posted it on her Web site.

After State Police officers learned of the posting, they wrote to Jean telling her that her posting of the tape was illegal. They gave her 48 hours to take it down or face prosecution. A month later, the police "clarified" the previous letter to demand that she take down only the audio portion of the recording.

Citing the First Amendment, Jean went to federal court seeking a TRO and an injunction against the police and the attorney general. The district court granted the TRO and, after a hearing, entered a preliminary injunction. The police appealed.

In today's decision, the 1st Circuit affirmed the district court, relying on Bartnicki v. Vopper, 532 U.S. 514 (2001), a case in which the Supreme Court found that the First Amendment protected the replaying of an intercepted cell phone conversation concerning a matter of unquestionable public concern, when, although the interception was unlawful, the possessor of the tape obtained it lawfully. That precedent controlled here, the circuit court said:

"We conclude that the government interests in preserving privacy and deterring illegal interceptions are less compelling in this case than in Bartnicki, and Jean’s circumstances are otherwise materially indistinguishable from those of the defendants in Bartnicki, whose publication of an illegally intercepted tape was protected by the First Amendment. Jean's publication of the recording on her website is thus entitled to the same First Amendment protection."