Above: one of the fixed cameras in Jury Room A.

Today marks the first full jury trial to be livestreamed out of Jury Room A at the Quincy District Courthouse. To our knowledge, this is the first criminal trial to ever be livestreamed in Massachusetts. Last week saw some false starts and this morning was marked by a last-second plea agreement in a trial that was expected to begin at the beginning of today’s business (9 a.m.). We’ve since streamed opening statements in a different case involving the alleged operation of a vehicle while under the influence of alcohol.

Our hardware setup includes four cameras affixed to the walls in the Jury Room A courtroom, each toggling to the active view depending on who is currently speaking. It’s a system designed by JAVS, the same company contracted by the state to record the official public record in the form of digital audio files.

It’s been a long road getting here but here we are. We’re currently livestreaming the remainder of the jury trial involving an alleged drunk driving incident. Tune in.

“There is no reason to single OpenCourt out and impose on it a variety of restrictions that do not apply to other media organizations,” Supreme Judicial Court Justice Margot Botsford wrote in a 10-page memorandum and judgment issued yesterday, August 14.

OpenCourt is a pilot project of WBUR, Boston’s NPR news station, designed to apply new approaches to coverage and technology in an effort to cultivate greater transparency in the American justice system. Among other initiatives, OpenCourt has been videostreaming live out of Quincy District Court, one of the busiest district courts in Massachusetts, since May 2011.

Following a a four-party hearing last week, Judge Botsford issued the order in denial of petitions from Norfolk County District Attorney Michael Morrissey as well as the Committee for Public Counsel Services (CPCS), which sought to stymie OpenCourt’s coverage pending an issuance of guidelines for the project from a state-sanctioned media committee.

Leading into this decision, on the heels of a June memo from Quincy District Court First Justice Mark Coven stating OpenCourt coverage of Courtroom A would commence on July 16, both the DA and CPCS had petitioned Norfolk County Superior Court for injunctive relief.

Following a Superior Court hearing before Judge Kenneth Fishman, Judge Fishman denied the plaintffs’ requests, referencing the hypothetical nature of the plaintiffs’ arguments did not seem to merit an order of relief from irreparable harm, and ultimately ruled that the case did not belong in his court’s jurisdiction.

Judge Fishman also witnessed an agreement, however (to which OpenCourt objected), between the plaintiffs and a Special Assistant to the Attorney General’s Office (SAAG) who was representing Quincy District Court Judges: to table coverage of Courtroom A pending a hearing before a justice of the Supreme Judicial Court.

This latest legal process is the second time since OpenCourt’s launch last year that a Justice of the SJC has been asked to decide whether to limit the scope of the project or cease its operation altogether. In March of this year in a ruling on the Commonwealth vs. Barnes case, Judge Botsford wrote on behalf of the full Supreme Judicial Court that OpenCourt could continue operating, and that movements by the state to redact footage legally recorded in a public courtroom would be a violation of First Amendment press protections.

Justice Botsford’s new ruling this week disagrees with the plaintiffs’ notion that operating in Courtroom A amounts to an expansion of the project, and ultimately echoes the sentiment of a portion of the Barnes ruling that OpenCourt may continue to operate under Rule 1:19, Massachusetts’ cameras-in-the-courtroom statute, while the SJC’s Media Judiciary Committee discusses its own guidelines for the project.

“The continuous coverage of jury trials in a different court room in the same court house constitutues part of the same OpenCourt ‘pilot project’ considered in Barnes,” Judge Botsford wrote. “As such, it fits within the provision permitting OpenCourt to continue its operations while formal guidelines are developed.”

Judge Botsford also addressed issues raised in petitions regarding attorney-client conversations.

“Although confidentiality of attorney-client communications is of paramount importance, we stated in Barnes that the fact that OpenCourt derived its audio feed from the same microphones used to create the official court record did not impair a defendant’s right to effective assistance of counsel, because attorneys and defendants must take the same precautions to ensure that they are not overheard as they would if no media were present,” Judge Botsford wrote, continuing:

“Given that OpenCourt’s microphones for its audio feed in Jury Room A will be placed on the room’s side walls rather than directly on the counsel tables, it is even less likely that confidential communications will be picked up. Additionally, the precautions attorneys must take when conversing with their clients would be the same if another media organization chose to record in the court room, and under Rule 1:19, another organization would be entitled to do so.”

View previous blog posts related to this decision:

• Listen to Thursday’s Full SJC Hearing (August 10)
• SJC Hearing Thursday For OpenCourt (August 8)
• District Attorney Moves to Block OpenCourt Media Access (July 25)

Recent news coverage of OpenCourt:

• Opening the courts | BostonHerald.com Editorial, August 18, 2012.
• OpenCourt wins another legal challenge to online streaming in the courtroom | Nieman Journalism Lab, August 14, 2012.
• OUR OPINION: Morrissey Wrong in Effort to Close OpenCourt | The Patriot Ledger, August 2, 2012.
• DA Singles Out OpenCourt in Bid to Censor Coverage | Boston Phoenix 15th Annual Muzzle Awards, July 13, 2012.

Read Judge Botsford’s full August 14 ruling embedded below, or download the PDF. Supreme Judicial Court Justice Rules in Favor of OpenCourt

The process is a lead-in for amended courtroom media rules that become effective next month. Key changes to Rule 1:19, the state’s cameras-in-the-courtroom statute, include:

• a redefining of the media to include citizen journalists “who are regularly engaged in the reporting and publishing of news or information about matters of public interest”
• allowance to, with permission of the judge, use laptop computers, tablets, smart phones and other devices to cover the proceedings, including live-blogging

Above: An iPad mounted in a keyboard case.

Once a news media organization or individual has registered, the state will return a signed acknowledgment form which must be presented alongside photo ID to courthouse officials if electronic devices would be brought into a courthouse or courtroom.

Additionally, as is the current policy, the news media must request permission beforehand from the presiding judge to use a pool camera or electronic device in the courtroom during those proceedings.

The SJC’s amended Rule 1:19 is effective on September 17, 2012.

Right-click to download or press play above to stream full audio of Thursday’s four-party hearing before Supreme Judicial Court Margot Justice Botsford.

John Adams Courthouse by mcritz on Flickr

A judge of the highest court in Massachusetts will hear arguments tomorrow (Thursday) for and against whether the state should prevent the operators of a media project from recording courtroom proceedings that are otherwise open to the public.

Right-click to download or press play above to stream full audio of Thursday’s four-party hearing before Supreme Judicial Court Margot Justice Botsford.

OpenCourt is a pilot project of WBUR, Boston’s NPR news station, designed to apply new approaches to coverage and technology in an effort to cultivate greater transparency in the American justice system. Among other initiatives, OpenCourt has been videostreaming live out of Quincy District Court, one of the busiest district courts in the state, since May 2011.

A hearing before Supreme Judicial Court Justice Margot Botsford is scheduled for 4 p.m. this Thursday, August 9, in the Holmes Courtroom of the John Adams Courthouse in Boston.

This is the second time since OpenCourt’s launch in May of 2011 that a Justice of the SJC has been asked to decide whether to limit the scope of the project or cease its operation altogether. In March of this year in a ruling on the Commonwealth vs. Barnes case, Judge Botsford wrote on behalf of the full court that OpenCourt could continue operating and that movements by the state to redact footage legally recorded in a public courtroom would be a violation of First Amendment press protections.

Since then, OpenCourt had moved forward with plans to start recording and livestreaming from Courtroom A at the Quincy District Court. Once a date was set to begin coverage on July 16, the Committee for Public Counsel Services (CPCS) joined Norfolk County District Attorney Michael Morrissey’s office in filing petitions for relief against Quincy District Court justices who would allow OpenCourt to record hearings in Courtroom A.

Tomorrow’s hearing includes four parties. The defendants are justices of the Quincy District Court, as represented by a Special Assistant to the Attorney General (SAAG). The plaintiffs are the Norfolk County District Attorney’s Office and CPCS, who each filed separate petitions for relief (SJ-2012-0306 and SJ-2012-0308). WBUR/OpenCourt is an intervenor in the case.

The Patriot Ledger wrote an editorial last week decrying District Attorney Michael Morrissey for his efforts to stymie OpenCourt’s operation.

Update (08/02/12): A Special Assistant Attorney General (SAAG) filed papers today to the Supreme Judicial Court in defense of permitting OpenCourt’s operation.

Update (07/27/12): OpenCourt filed a memo to the Massachusetts Supreme Judicial Court in response to petitions from the District Attorney and CPCS.

On July 16, OpenCourt had planned to start livestreaming from Courtroom A at the Quincy District Court. However, due to a suit filed by Norfolk County District Attorney Michael Morrissey against the judges of the Quincy District Court, livestreaming has been postponed indefinitely pending a decision by a justice from the State Supreme Judicial Court.

The Committee for Public Counsel Services (CPCS) has joined the DA’s office in moving for injunctive relief against Quincy District Court justices who would allow OpenCourt to record hearings in Courtroom A that are open to the public. OpenCourt successfully intervened to be party in the case, and arguments from the three parties were heard in Superior Court on July 12 before Justice Kenneth J. Fishman.

As of this writing, OpenCourt is the only news organization currently prohibited from covering trials in Courtroom A, also known as Jury Room A. Rule 1:19, the Massachusetts Camera in the Court statute, presumes that courtrooms are open to media.

In a written ruling following the Norfolk County Superior Court hearing, Judge Fishman denied the plaintffs’ requests, referencing the hypothetical nature of their arguments did not seem to merit an order of relief from irreparable harm, and ultimately ruled that the case did not belong in his court’s jurisdiction.

However, a lawyer from the Attorney General’s office, representing the defendant Quincy District Court Justices, volunteered an agreement during arguments: to postpone allowing OpenCourt to cover proceedings outside of First Session– from where OpenCourt has streamed since May 2011 — pending review by a Single Justice of the Massachusetts Supreme Judicial Court. OpenCourt objected to this agreement.

Members of OpenCourt have for months openly planned to begin coverage of Jury Room A, and were set to begin livestreaming proceedings on Monday, July 16. Those plans are currently in a temporary state of limbo as we await single justice review.

The SJC ruled in March on the Barnes case, which involved OpenCourt, that the state cannot order to stifle publication or redact footage of public proceedings legally recorded by a news organization on the constitutional grounds of how that would represent a prior restraint of First Amendment media rights. In the ruling, Justice Margot Botsford wrote that OpenCourt’s operations may continue on, with an expectation of responsible editorial guidelines the court would anticipate from “all news media organizations.”

Please view the documents below (the filings from CPCS, the DA’s office, the Special Assistant Attorney General, OpenCourt, and the Superior Court decision) for a fuller understanding each party’s legal stance. We’ll keep you posted with updates as they come.

CPCS Complaint for Injunctive Relief

District Attorney Complaint for Injunctive Relief

OpenCourt Memo of Law

Superior Court Order

OpenCourt Memo to Supreme Judicial Court — 07/27/2012

Quincy Court Justices Opposition Filing (SJC-2012-308)

In a scene Friday that echoed a plot line from the film Minority Report, CPCS defense attorney Ethan Yankowicz moved that a charge against his client should be dismissed on grounds the state would essentially be criminalizing a state of mind.

Both sides in the case agree the defendant, charged with attempt to commit a crime, seems to have prepared to rob a bank in Weymouth, acknowledging a witness and police report that describe a man sitting in the bank’s parking lot with a mask, wig, knife, rags obscuring his license plate, and a note for the teller.

Yankowicz argued the man would have had to have gone into the bank and passed said note in order to establish the probable cause necessary for the state to make that charge — that even if you have a note, a mask, and other accoutrements for robbing a bank, that his defendant should not be charged on the basis that he might have only been close to “doing something stupid.”

Assistant District Attorney Adam Lally, on behalf of The Commonwealth, countered that the man’s reason for abandoning his plan and driving away (before being eventually pulled over) was not “an act of volition” but because as he was preparing to enter the building, an officer parked a marked police cruiser across the street.

Where is the line? When does intent become a criminal act?

Jeff Hermes, Director of the Citizen Media Law Project at Harvard’s Berkman Center and a member of OpenCourt’s Advisory Board, wrote-in his thoughts:

You can’t be arrested for merely thinking about committing a crime. To be found guilty for an attempted crime, Massachusetts law requires that the defendant have committed an overt act in furtherance of the crime and that the defendant was reasonably close to following through. However, mere planning or even preliminary acts where the defendant could still change his mind are not sufficient. After all, we want people to feel free to change their minds about committing crimes.

Generally, the overt act is the “falling domino” — an act that would lead a reasonable person to believe the defendant, barring unforeseen events, was actually going to follow through with the crime. For example, stepping through the door of the bank with a drawn gun would qualify; even if the defendant might still change his mind and walk right back out, a reasonable person would believe that the defendant was going to rob the bank.

Would the hypothetical “reasonable person” decide that merely sitting in a car with the necessary accoutrements was sufficient indication that the defendant was going to follow through? It’s difficult to say; I’ve never met the “reasonable person” myself, and there are so many details that would make a difference. Was the defendant muttering to himself excitedly, trying to psych himself up for the crime? Was he sitting in the car crying at his own desperation before simply driving away, with the nearby cop as a mere coincidence?

Each side will try to paint its picture of events, and the jury will be left to use inevitably incomplete and biased information.

Click the video above to view the ruling.

The decision arrives during Sunshine Week, a national initiative to promote a dialogue about the importance of open government and freedom of information.

Read:

• full decision (scroll down on this post)
• full decision on the SJC’s site (click Commonwealth vs. Barnes)
• full decision as a rich text download
• the document as scanned on Scribd

Decision excerpts

On First Amendment:

“We conclude that any order restricting OpenCourt’s ability to publish–by “streaming live” over the Internet, publicly archiving on the Web site or otherwise–existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art.”

On Barnes:

“In the Barnes case, we vacate the order of the District Court judge requiring the redaction of the name of the minor alleged victim. [FN2] We expect and anticipate that OpenCourt will continue to adhere to its policy of not publishing the name of the minor, but agree that on the record of this case, the judge’s order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor’s privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests.”

On Diorio:

“In the Diorio case, we conclude that Diorio has not met the heavy burden of justifying an order of prior restraint with respect to the specific proceedings at issue in his petition for relief.”

Guidelines:

“Finally, we exercise our discretion pursuant to G.L. c. 211, § 3, to request that the Supreme Judicial Court’s judiciary-media committee submit for this court’s approval a set of guidelines for the operation of the OpenCourt pilot project.”

Listen:

Above: Click play to listen to Norfolk District Attorney Michael Morrissey’s thoughts on the decision. [download]

News coverage:

• Mass. Court OK Live, Unedited Court Proceedings (Associated Press via WBUR)
• SJC Strikes Down Objections To Court Recordings (WBUR Radio Boston)
• Massachusetts high court rules that Quincy District Court hearings can be livestreamed and archived (The Boston Globe)
• SJC rules that live Web video of courtrooms is protected (The Boston Globe)
• Free press victory (Boston Herald Editorial)
• Top Mass. court: OpenCourt can keep its cameras rolling (Nieman Journalism Lab)
• SJC ruling favors ‘live streaming’ of court cases (Mass Lawyers Weekly)
• WBUR can air Quincy District Court hearings, state supreme court rules (The Patriot Ledger)

Relevant OpenCourt blog posts:

• SJC Debrief (November 8, 2011)
• Reply Briefs Filed for Mass Supreme Court Case (October 31, 2011)
• Briefs Filed for November Supreme Court Hearing (October 18, 2011)
• DA Files Motion Requesting Redaction, OpenCourt Responds (September 26, 2011)
• Full Mass. Supreme Judicial Court to Hear OpenCourt Archive Arguments (August 4, 2011)
• Mass. Supreme Judicial Court to Hear Archive Appeals (June 30, 2011)

Full Ruling

COMMONWEALTH vs. Norman BARNES. vs. vs.

Trustees of Boston University

Commonwealth.

Charles Diorio

First Justice of the Quincy Division of the District Court Department.

Nos. SJC-11035, SJC-11036, SJC-11052.

November 8, 2011. – March 14, 2012.

Constitutional Law, Access to court proceedings, Freedom of speech and press. Practice, Criminal, Cameras in courtroom. Internet.

CIVIL ACTIONS commenced in the Supreme Judicial Court for the county of Suffolk on June 23, June 24, and August 3, 2011, respectively.

The cases were reported by Botsford, J.

Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

John Fennel, Committee for Public Counsel Services, for Charles Diorio.

Lawrence S. Elswit (Christopher T. Bavitz with him) for trustees of Boston University.

Present: Ireland, C.J., Spina, Botsford, Gants, & Duffly, JJ.

BOTSFORD, J.

On May 2, 2011, as part of a pilot project it has named “OpenCourt,” WBUR-FM, a National Public Radio station in Boston, began to broadcast live by “streaming” over the Internet video and audio recordings of certain proceedings taking place in the Quincy Division of the District Court Department (Quincy District Court). We consider here three petitions for relief under G.L. c. 211, § 3, that relate to the OpenCourt project and were reported to this court by a single justice. Each petition challenges one or more orders of a judge in the Quincy District Court concerning the broadcasts and online posting of particular proceedings in two different criminal cases. In the first case, the Commonwealth appealed from the judge’s order permitting OpenCourt to “post” to its public, online archives an audio and video recording of a criminal dangerousness hearing conducted pursuant to G.L. c. 276, § 58A. [FN1] The Commonwealth argues that the judge abused his discretion and failed to protect the alleged minor victim’s privacy. OpenCourt has brought a separate petition for relief in the Barnes case, challenging the judge’s orders that required OpenCourt to redact the alleged victim’s name from the recording and to stay temporarily public access to the online archive. As explained infra, OpenCourt has an internal policy prohibiting publication of the names of minor victims of sexual assault and does not wish to publish the name, but objects to the court order; OpenCourt’s argument is that any restriction on its right to publish the recordings constitutes a prior restraint that violates the First Amendment to the United States Constitution.

Charles Diorio brought the third petition for relief. He appeals from orders permitting the broadcasting and public online archiving of both his July 5, 2011, arraignment in the Quincy District Court, and a motion hearing held on July 25. Diorio contends that the judge abused his discretion and prejudiced Diorio’s constitutional right to a fair trial by allowing the hearings to be broadcast and by not requiring the recordings to be removed from OpenCourt’s online archives.

We conclude that any order restricting OpenCourt’s ability to publish–by “streaming live” over the Internet, publicly archiving on the Web site or otherwise–existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.

In the Barnes case, we vacate the order of the District Court judge requiring the redaction of the name of the minor alleged victim. [FN2] We expect and anticipate that OpenCourt will continue to adhere to its policy of not publishing the name of the minor, but agree that on the record of this case, the judge’s order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor’s privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests. In the Diorio case, we conclude that Diorio has not met the heavy burden of justifying an order of prior restraint with respect to the specific proceedings at issue in his petition for relief. Finally, we exercise our discretion pursuant to G.L. c. 211, § 3, to request that the Supreme Judicial Court’s judiciary-media committee submit for this court’s approval a set of guidelines for the operation of the OpenCourt pilot project.

1. Background. Rule 1:19 of the Rules of the Supreme Judicial Court, as amended, 430 Mass. 1329 (2000) (rule 1:19), has governed the use of cameras and other electronic recording devices in the court rooms of the Commonwealth.

[FN3] Pursuant to the rule, “[a] judge shall permit broadcasting, televising, electronic recording, or taking photographs of proceedings open to the public in the courtroom by the news media for news gathering purposes and dissemination of information to the public,” subject to certain limitations.
For example, a judge “may limit or temporarily suspend” media coverage “if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence,” rule 1:19(a) [FN4]; a judge also “should not permit broadcasting, televising, electronic recording, or taking photographs” of hearings on motions to suppress or dismiss, probable cause hearings, or voir dire hearings, rule 1:19(b) [FN5]; and a judge should not make “exclusive arrangement[s]” for news media coverage. Rule 1:19(g). [FN6]

OpenCourt, which was created in 2010, operates pursuant to a grant awarded by the Knight Foundation. It is intended to promote greater public access to courts through the use of digital technology. The project broadcasts or “streams live” over the Internet on a daily basis audio and video recordings of the proceedings taking place in the first session of the Quincy District Court. OpenCourt also posts the daily broadcasts to public archives on its Web site. The Supreme Judicial Court’s media-judiciary committee approved the OpenCourt project, but OpenCourt currently does not operate under any formal judicial rules or guidelines other than rule 1:19. OpenCourt began streaming live broadcasts on May 2, 2011, and opened its online archives to public access six weeks later on June 16.

Each day, in order to record the proceedings, OpenCourt sets up a digital camera in the witness box of the first session. [FN7] Much of the business of the first session focuses on the beginning stages of criminal cases, including arraignments, but the session also entertains other types of proceedings, such as probation surrender hearings, hearings on protective substance abuse commitments and protective orders under G.L. c. 209A, summary process cases, and debt collection cases.

While the OpenCourt project is recording a court session, an OpenCourt producer sits at a desk in the court room’s witness box, to the right of the camera. No other members of the media or the public sit in the witness box. Currently, the OpenCourt producer is responsible for turning off the audio and video “feeds” for the broadcast when the judge directs that a particular matter should not be recorded. OpenCourt’s goal is to enable the judge presiding over each session to turn on or off the audio and video feeds by pressing a button on a computer installed on the bench.

OpenCourt uses the court room’s existing microphones to obtain the audio feed for its live streaming. WBUR-FM paid for the cost of installing and connecting an additional audio cable to the court room’s recording “mixer” so that OpenCourt could receive the audio feed from those microphones. Every sound that is broadcast through OpenCourt’s audio feed is also a part of the official court record, as both systems use the same audio feed. Prior to the launch of the OpenCourt live stream in May, 2011, OpenCourt held training sessions for court employees, defense attorneys, and prosecutors to demonstrate the sensitivity of the microphones. The project also posted signs near the microphones to alert attorneys and parties that their words could be picked up by the microphones. After OpenCourt began broadcasting, its producers noticed that some confidential conversations between defense attorneys and their clients had been recorded inadvertently. In response, OpenCourt employees contacted several defense attorneys to warn them not to speak too near the microphones.

In accordance with the limitations set out in rule 1:19 and after consultation with its advisory board [FN8] and others, OpenCourt adopted voluntary guidelines for when the project will go “offline.” Under these guidelines, OpenCourt does not broadcast or record hearings on motions to suppress or dismiss, bench conferences, or probable cause or voir dire hearings. [FN9] At the present time, the project also does not broadcast or record hearings of applications for protective orders under G.L. c. 209A unless they are connected with a criminal matter involving allegations of domestic violence, but OpenCourt will reconsider this policy in the future. All other situations “will be decided on a case-by-case basis by the presiding judge.” OpenCourt also has a policy against broadcasting the identity of victims of sexual assault, minor victims of crimes, informants, or undercover law enforcement personnel.

After a proceeding or hearing in the first session is “live streamed,” OpenCourt delays two business days before posting the archived recording to its Web site. The delay allows OpenCourt time to redact any portion of the recording that it deems inappropriate, such as “the ‘blurting’ of a minor victim’s name.” [FN10] Recordings are posted to the online archives in their entirety unless OpenCourt makes its own redactions or chooses to grant a request for redaction. [FN11] Any interested party or parties, including attorneys, defendants, victim advocates, or affected individuals, may request redaction before or after the archive has been made public. In order to gain access to the online archives, users must register on the OpenCourt Web site and accept the terms of use. There is no charge for registration.

2. Discussion. Central to the resolution of these cases are the freedoms of speech and press guaranteed by the First Amendment and the cognate provisions of art. 16. This court has long recognized:

“It is desirable that [judicial proceedings] should take place under the public eye … because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”

Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004), quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.), and citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508-509 (1984) ( “openness enhances appearance of fairness essential to public confidence in criminal justice system”). See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604-605 (1982) (one purpose of First Amendment right of press access to criminal trials is to ensure effective participation of citizens in self-government and informed discussion of governmental affairs).

The First Amendment entitles the press and public to be present at criminal trials and preliminary hearings, in most circumstances, and to report their observations of what occurred in the court room. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986) (preliminary hearings); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (trials). Court rooms may be closed only when the closure is necessary to serve “a compelling governmental interest” and “narrowly tailored” to meet that need. Globe Newspaper Co. v. Superior Court, 457 U.S. at 606-607. Whether an asserted governmental interest is sufficiently compelling to merit closure must be determined on a case-by-case basis and supported by factual findings. Id. at 607-608. And when a court room is open and the court proceeding public, a court’s authority to prohibit or restrain reports by members of the public or press about what has occurred in the proceeding is extremely limited, as we discuss more fully infra.

Although the public has the right to be physically present in a court room, there is no constitutional right to bring cameras into or to make audio or video recordings of court room proceedings. Nixon v. Warner Communications, Inc., 435 U.S. 589, 610 (1978). However, if a court chooses in its discretion to allow recording, the person or entity making it has the same First Amendment freedom to disseminate the information it records as any other member of the print media or public, and the court is limited by the prior restraint doctrine in its ability to restrain the publication of the recording.

We first consider whether the constitutional doctrine of prior restraint applies to court orders restricting the dissemination of OpenCourt’s recordings. Because we conclude that it does, we then address whether a prior restraint can be constitutionally justified in either the Barnes or Diorio case.

a. Prior restraint doctrine. “The term ‘prior restraint’ is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’ ” Alexander v. United States, 509 U.S. 544, 550 (1993), quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984). “Temporary restraining orders and permanent injunctions–i.e., court orders that actually forbid speech activities–are classic examples of prior restraints.” Alexander v. United States, supra.

From the beginning, the liberty of the press guaranteed by the First Amendment and art. 16 was understood as primarily a guarantee of freedom from prior restraints, such as the licensing system employed by the British government in the Sixteenth and Seventeenth Centuries to prevent the publication of material it deemed unsuitable. See A. Lewis, Freedom for the Thought that We Hate: A Biography of the First Amendment 1-3, 6 (2007). Reflecting this history, the Supreme Court has been clear that prior restraints “require an unusually heavy justification under the First Amendment.” New York Times Co. v. United States, 403 U.S. 713, 733 (1971) (Pentagon Papers ) (White, J., concurring). Put another way, there is a “heavy presumption” against the constitutionality of prior restraints. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 558 (1976), quoting Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). A prior restraint cannot be upheld unless “justified by a compelling State interest to protect against a serious and identified threat of harm.” George W. Prescott Publ. Co. v. Stoughton Div. of the Dist. Court Dep’t of the Trial Court, 428 Mass. 309, 311 (1998) (Prescott ). “[A]ny order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available.” Id., quoting Care & Protection of Edith, 421 Mass. 703, 705 (1996). Furthermore, “[t]here is a particularly high burden of justification where, having opened the proceedings and the court records … to the public, the judge [seeks] to restrict the press from reporting fully on the cases.” Prescott, supra. [FN12]

The Commonwealth argues that we need not apply prior restraint analysis to the OpenCourt project because OpenCourt was only able to make the challenged recordings of court proceedings through the permission and cooperation of the Quincy District Court. [FN13] Because there is no constitutional right to record or broadcast court room proceedings, the Commonwealth contends that the court retains the ultimate power and authority to direct how OpenCourt may broadcast, archive, or otherwise disseminate the audio and video recordings it creates; in any event, according to the Commonwealth, the judge has violated rule 1:19 because the Quincy District Court has made an exclusive media coverage arrangement with OpenCourt. See rule 1:19(g). [FN14] Diorio advances a separate but related claim, namely, that the court has provided such significant encouragement and support for OpenCourt that all its recordings must be deemed court documents–with the consequence that, like any other court filing, they are subject to redaction or impoundment for good cause without implicating First Amendment concerns.

The Quincy District Court’s cooperation with OpenCourt is not extensive enough to permit us to draw the conclusions urged by the Commonwealth and Diorio. OpenCourt is a project of WBUR-FM, a private entity. OpenCourt and WBUR-FM employ their own production staff and OpenCourt retains the recordings it makes on its own Web site, rather than a court Web site. WBUR-FM paid for the camera and audio cable OpenCourt needed to secure its video and audio feeds; the Quincy District Court did not. Although the Commonwealth and Diorio both allege that OpenCourt enjoys exclusive access to court proceedings, OpenCourt only records hearings that are open to the public and other media organizations. To the extent that OpenCourt is operating in a manner different from any other media organization, OpenCourt states that it is the only news medium that has requested permission to broadcast live by streaming video recording. Moreover, OpenCourt’s unique methods derive from its status as a pilot project rather than from an exclusive arrangement with the court. We understand that OpenCourt’s recording of court room proceedings on a daily basis permits a new and different application of our rule and policy generally authorizing cameras in and electronic access to Massachusetts court rooms. See rule 1:19. [FN15] It is for this reason, and because OpenCourt is a pilot project, that we believe it appropriate to develop guidelines to govern OpenCourt’s operations, as we discuss infra.

The limitations on recording that are set out in rule 1:19, and particularly rule 1:19(a), [FN16] which authorizes judges temporarily to suspend electronic recording of a proceeding if there is “a substantial likelihood of harm to any person,” are important for judges to consider when deciding whether to authorize audio and video recording of proceedings. Once a proceeding is recorded, the ability of the judge or an appellate court to control what media organizations do with the recording is highly constrained. Thus, even if an appellate court should conclude that there was an abuse of discretion in permitting the proceeding to be recorded, there can be no restraint on publication of the recording unless the court also determines that such a restraint is necessary to protect a compelling governmental interest and is the least restrictive reasonable method to do so. See Prescott, 428 Mass. at 311.

We turn to whether the Commonwealth and Diorio have met their burden of demonstrating that such findings can be made in the two cases at issue.

(i) Application to Barnes. Norman Barnes is alleged to have kidnapped a fifteen year old girl (minor) and enticed her into prostitution. See note 1, supra. The dangerousness hearing at issue in the case was held on May 27, 2011. [FN17] During the hearing, two State troopers testified concerning their interactions and conversations with the minor and with her aunt and uncle. Despite the judge’s instruction at the beginning of the hearing that the minor’s name was not to be revealed, defense counsel accidentally stated the minor’s name three times: her full name once, her first name once, and her surname once. In addition, the name of the street where the minor encountered the defendant and the name of her high school were disclosed. Her aunt and uncle’s full names were repeated several times.

The Commonwealth moved to turn off OpenCourt’s camera before the hearing began; the judge denied the motion. [FN18], [FN19] After the minor’s name was blurted during the hearing, however, the judge allowed the Commonwealth’s motion to stay public access to OpenCourt’s archived recording because of the disclosure of the name. On June 16, 2011, the judge reversed his previous allowance of the Commonwealth’s motion but ordered OpenCourt to redact the minor’s name from the recording. On June 20, the judge granted an emergency stay of his order allowing public access to the archived recording, pending the Commonwealth’s emergency petition to a single justice of this court under G.L. c. 211, § 3.

The Commonwealth challenges, as an abuse of discretion, the judge’s decision permitting OpenCourt to post the hearing on its Web site. The Commonwealth’s argument is that the posting and subsequent archiving violated the minor’s right to privacy and jeopardized her safety, [FN20] and protecting the privacy of minor sexual assault victims is a compelling State interest that justifies a judicial order forbidding posting the hearing on OpenCourt’s Web site.

The judge’s decisions to permit the recording of a G.L. c. 276, § 58A, dangerousness hearing involving a fifteen year old alleged victim of sexual assault, and to permit recording to continue after defense counsel had stated the minor’s name, were probably unwise. Given the nature of the crimes charged in the Barnes case of kidnapping and enticing a child under sixteen years, and the recognized sensitivities of adolescents to invasions of privacy, cf. Safford United Sch. Dist. No. 1 v. Redding, 129 S.Ct. 2633, 2641 (2009) (discussing “adolescent vulnerability” in relation to invasion of privacy during school strip search), there was at least a reasonable likelihood that the recording and public archiving of the dangerousness proceedings would cause emotional distress and related harm to the minor if she were to be accidentally identified (which, in fact, occurred). See rule 1:19(a).

[FN21] But regardless of our assessment of the judge’s decision, we are bound by the fact that he allowed OpenCourt to make a recording of the dangerousness hearing that is now in OpenCourt’s possession. Accordingly, we may only grant the relief the Commonwealth seeks if we conclude that an order forbidding archiving or requiring redaction meets the extremely high bar for constitutional prior restraints.

The United States Supreme Court has held that “safeguarding the physical and psychological well-being of a minor” may be a compelling interest, but a determination of the measures necessary to protect that interest must occur on a case-by-case basis, considering factors such as the “minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.” Globe Newspaper Co. v. Superior Court, 457 U.S. at 607-608. Cf. Commonwealth v. Weston W., 455 Mass. 24, 34 (2009), quoting Blixt v. Blixt, 437 Mass. 649, 656 (2002), cert. denied, 537 U.S. 1189 (2003) (in context of strict scrutiny analysis, government has compelling interest in “protect[ing] children from actual or potential harm”). Although the Commonwealth argued to the judge that psychological or physical harm could result from broad publicity about the charges and the minor’s connection to them, it did not provide affidavits or other evidence that would enable the judge to verify these contentions in this specific case, nor did the Commonwealth present evidence relating to this particular minor’s psychological state, her particular interests, or the extent to which she or her family has sought privacy.

Furthermore, the Commonwealth has failed to show that forbidding OpenCourt to post the archived recording on its Web site is the least restrictive reasonable alternative available. See Prescott, 428 Mass. at 311. See also Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175, 183 (1968) (“An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order”). [FN22]

We also conclude, as OpenCourt urges, that the judge’s June 16 order requiring the redaction of the minor’s name from the recording of the hearing is an unconstitutional prior restraint, because it lacks “detailed findings of fact” that are necessary to “demonstrate that no reasonable, less restrictive alternative to the order” would protect the minor’s privacy interests. See Prescott, 428 Mass. at 311. The judge stated: “The court believes that redacting the minor’s name from the video and audio archives balances the public interest with the victim’s right to protect her privacy and is less restrictive of First Amendment concerns.” As indicated, while the Commonwealth presented its argument that the minor would suffer harm from the disclosure of her name, it did not submit affidavits or other evidence substantiating its claims. Nor did the judge hold a hearing or make any further factual findings as to whether the Commonwealth’s assertions were true. Based on this record, we conclude that the order cannot stand. [FN23], [FN24]

(ii) Application to Diorio. On July 5, 2011, Charles Diorio was arraigned in the Quincy District Court on charges including armed assault in a dwelling and kidnapping, in violation of G.L. c. 265, §§ 18A and 26, respectively. Prior to the arraignment, Diorio filed a motion to preclude cameras in the court room; he argued this was necessary in order to protect his constitutional right to an impartial jury and a fair trial. Specifically, Diorio claimed that there was an issue of identification in another case pending against him in the Chelsea Division of the District Court Department in Suffolk County, and that his appearance on the OpenCourt broadcast of the arraignment in the Quincy District Court in Norfolk County would create a risk of an improperly suggestive identification in the Suffolk County case. [FN25] The judge denied this motion and permitted OpenCourt to record and broadcast the proceeding. On July 18, Diorio filed an emergency motion to suspend permanently the posting and archiving of his July 5 arraignment on OpenCourt’s Web site. The parties returned to court on July 25 for a pretrial hearing. At that time, Diorio moved to preclude the broadcast and archiving of the pretrial hearing. The judge denied the motion. Diorio’s counsel then waived Diorio’s appearance in the court room due to concern about the possible Suffolk County case identification issues, and the judge heard argument by counsel on the motion permanently to suspend archiving of the July 5 arraignment proceeding.
[FN26] In a memorandum of decision issued on July 29, the judge denied Diorio’s motion because he determined that there was no substantial likelihood of harm deriving from the archiving. He found that Diorio’s claims of harm did not go beyond “speculation or a remote possibility of archival retrieval by interested witnesses in the Suffolk County criminal proceedings.” The judge further noted that any bias due to pretrial media exposure could be remedied by juror voir dire and cross-examination of witnesses at the defendant’s subsequent trial in Suffolk County.

Diorio argues that the judge abused his discretion by permitting the recording and archiving of the two hearings, and presses his point that the judge’s ruling harmed his rights to a fair trial and effective assistance of counsel. If potential witnesses or jurors in the pending Suffolk County case against Diorio were to watch the archived July 5 arraignment, they could see Diorio shackled in the prisoner’s dock while the clerk read the charges against him; in Diorio’s view, the availability of this image on the Web site creates a substantial likelihood of harm to his fair trial rights because it could prejudice viewers to believe that he had committed the charged Suffolk County crimes. He claims also that permitting OpenCourt to use the court room microphones for its audio feed during the July 5 arraignment violated his right to effective assistance of counsel, because the microphones can pick up court room whispers, preventing him from speaking confidentially with his attorney during the proceeding. Permitting recording prejudiced Diorio’s right to assistance of counsel on July 25 as well, he contends, because he was forced to choose between remaining in the lockup during that hearing or attending the hearing and being filmed.

The judge did not abuse his discretion. We agree with the judge that there was no substantial likelihood of harm to Diorio’s fair trial right, because the case against Diorio in which identification was at issue took place in another county, and many alternatives to protect the right existed, including juror voir dire and cross-examination during any subsequent trial on those charges. “[P]retrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial.” Nebraska Press Ass’n v. Stuart, 427 U.S. at 565.

Nor did recording the hearing pose a substantial likelihood of harm to Diorio’s right to counsel. Because the OpenCourt project uses the same microphones as those used by the court system to make the official court recording, anything a defendant says to his attorney that is picked up by OpenCourt is also captured on the official court recording. The defendants and their counsel must take exactly the same precautions to ensure that their conversations are not recorded as they would if OpenCourt were not present in the court room.
[FN27]

Diorio also contends that this court may order OpenCourt to redact his image from its online archive. Such a prior restraint is justified, he asserts, because redaction is the least restrictive reasonable method to protect his right to a fair trial. Because Diorio did not move in the District Court for redaction of his image, [FN28] we deem the issue waived. [FN29] See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).

b. Revision of rule 1:19. As the foregoing discussion reflects, constitutional prerogatives make crafting an effective remedy for what an appellate court might later conclude was an erroneously granted authorization to record a particular court proceeding both delicate and difficult. Although an appellate court can overturn a judge’s decision to deny video and audio recording, the converse is not true. This structural concern is magnified by the nature of the OpenCourt pilot project. In the past, media requests to record court proceedings under rule 1:19 and S.J.C. Rule 3:09, Canon 3(A)(7), as appearing in 387 Mass. 1218 (1983), generally have been limited to trials and other court proceedings of particular public interest and, of significance, have been made before the scheduled trial or proceeding date. As a result, it has been possible for judges and appellate courts to give careful, case-by-case, and advance consideration to requests or motions to allow or deny recording. See, e.g., Commonwealth v. Perkins, 450 Mass. 834, 846-848 (2008); Commonwealth v. Cordeiro, 401 Mass. 843, 845-848 (1988). In contrast, OpenCourt records every proceeding, other than those involving protective orders, that occurs in the first session of the Quincy District Court, unless recording is forbidden by rule 1:19(b) [FN30] or by the judge in his or her discretion.

As the Commonwealth points out, when one of our courts establishes or permits a pilot project relating to an area of its work, it is generally the case that a set of guidelines or rules are issued to govern the pilot’s operation. In the present case, particularly in light of the fact that the OpenCourt project differs from the traditional media approach to the use of cameras in the court room under rule 1:19, we think it appropriate and in the spirit of that rule for a set of guidelines to be prepared and submitted to this court for review and approval. We therefore refer the task to the Supreme Judicial Court’s judiciary-media committee. While the contents of the guidelines are for that committee to develop, issues that might be considered include whether there are any additional types of proceedings beyond those currently enumerated in rule 1:19 at which live-streaming and archiving on the Internet should be restricted. [FN31] It may be helpful also to provide guidance with respect to appropriate procedures to follow in cases where a party or OpenCourt itself indicates an intent to appeal from a judge’s decision denying or allowing a motion to prohibit or limit OpenCourt’s recording of a particular proceeding.

We will not require OpenCourt to suspend its operations pending the preparation, submission, and approval of these project guidelines. We expect, however, that in the interim, OpenCourt, like all news media organizations, will work with the court system, prosecutors’ offices, and the defense bar to safeguard the rights of criminal defendants as well as those of witnesses and alleged victims of crime. “The extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly…. It is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors.” Nebraska Press Ass’n v. Stuart, 427 U.S. at 560.

3. Conclusion. We remand these matters to the single justice to issue an order denying the Commonwealth’s petition in S.J.C. No. SJ-2011-0261 and Diorio’s petition in S.J.C. No. SJ-2011-0340, and granting OpenCourt’s petition in S.J.C. No. SJ-2011-0265.

So ordered.

FN1. Norman Barnes is alleged to have kidnapped a fifteen year old girl and enticed her into prostitution, in violation of G.L. c. 265, §§ 26 and 26C (b ), respectively.

FN2. The separate order of the District Court judge temporarily staying the archiving of the recording, challenged by OpenCourt, has expired, and we do not address it. The order of the single justice staying public access to OpenCourt’s video and audio archives is to be vacated.

FN3. Rule 1:19 of the Rules of the Supreme Judicial Court, as amended, 430 Mass. 1329 (2000) (rule 1:19), recently was amended and retitled “Electronic Access to the Courts.” See S.J.C. Rule 1:19, as appearing in post 1301 (2012), effective July 1, 2012 (revised rule 1:19). Because these cases arose under rule 1:19 as amended in 2000, references to rule 1:19 in this opinion will be to that version of the rule. References to the analogous provisions of revised rule 1:19 will appear in footnotes, and we will discuss provisions that have been added or changed in revised rule 1:19 where to do so will illuminate the issues.

FN4. See revised rule 1:19(2)(a).

FN5. Revised rule 1:19(2)(b) prohibits recording of voir dire hearings but not recording of motions to suppress or dismiss and probable cause hearings.

FN6. See revised rule 1:19(2)(f).

FN7. WBUR-FM purchased the video camera with its own funds.

FN8. Members of the advisory board include judges, law professors, an assistant district attorney, the chief of victim witness services in the Attorney General’s office, and the president of the Massachusetts Bar Association.

FN9. As previously mentioned (see note 5, supra ), the revised version of rule 1:19 does not bar the recording of motions to suppress, motions to dismiss, or probable cause hearings.

FN10. OpenCourt uses the term “blurt” to refer to a statement made by an attorney, witness, or other participant at a hearing that reveals the name of someone whom the participant had been instructed not to identify, or some other statement containing information that is required by law to be kept confidential, such as the name of a rape victim. See G.L. c. 265, § 24C.

FN11. Under OpenCourt’s guidelines, if OpenCourt disagrees with the request, the person seeking redaction has the option to request mediation. If mediation is requested, OpenCourt will delay release of the archived recording until the
mediation is completed.

FN12. The passages from George W. Prescott Publ. Co. v. Stoughton Div. of the Dist. Court Dep’t of the Trial Court, 428 Mass. 309, 311 (1998), quoted in the text are based on this court’s analysis of art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution, but the constitutional principles embodied in art. 16 are not “significantly different” from the principles underlying the First Amendment to the United States Constitution. Care & Protection of Edith, 421 Mass. 703, 705 (1996), citing Krebiozen Research Found. v. Beacon Press, Inc., 334 Mass. 86, 96-97, cert. denied, 352 U.S. 848 (1956).

FN13. In support of its point, the Commonwealth points to the fact that the Quincy District Court allowed OpenCourt to install and connect another audio cable to the court’s recording mixer in order to provide the audio feed for the broadcasts and to use court room space in the witness box for OpenCourt’s camera and producers.

FN14. See also revised rule 1:19(2)(f).

FN15. See also revised rule 1:19.

FN16. See revised rule 1:19(2)(a).

FN17. Pursuant to G.L. c. 276, § 58A, a dangerousness hearing may be held to determine whether the release on personal recognizance of a defendant accused of a felony would pose a danger to “any other person or the community,” or would not reasonably assure the appearance of the defendant. If so, the judge may order the defendant held without bail or impose other conditions on release. See id. See also Commonwealth v. Arrington, 455 Mass. 437, 439 n. 2 (2009).

FN18. The Commonwealth does not appeal from the judge’s denial.

FN19. Revised rule 1:19(2)(c) prohibits photographing minors and sexual assault victims absent the judge’s consent. However, this revision would not have affected the Barnes case because the minor did not testify at the dangerousness hearing.

FN20. The Commonwealth also asserts that the judge’s ruling violates rule 1:19(g) (prohibiting “exclusive arrangement[s]” for news media coverage). However, there is no evidence in the record that other media organizations have
been excluded from the court room or denied permission to record court room proceedings.

FN21. See also revised rule 1:19(2)(a).

FN22. The Commonwealth contends that such a prohibition is the least restrictive alternative, because quite apart from the minor’s name, there were so many identifying details disclosed during the hearing’s course that the minor’s identity can be readily determined and consequently her privacy and well-being will be injured by making any portion of the hearing available to the public. We disagree. Much of the identifying information other than the minor’s name already has been reported in the print media, including the name of the street where she met the defendant, the names of the motels where she was taken, and the high school she attends. Given the existing and ready availability of this information in the public domain, an order forbidding any posting of these details on the Web site would fail to achieve its intended protective purpose, and therefore is broader than constitutionally allowed. See Oklahoma Publ. Co. v. District Court, 430 U.S. 308, 310 (1977) (“the First and Fourteenth Amendments [to the United States Constitution] will not permit a state court to prohibit the publication of widely disseminated information obtained at court proceedings which were in fact open to the
public”).

FN23. As noted, OpenCourt has agreed voluntarily to redact the minor’s name from the archived recording as well as “any information it deems necessary to protect the identity of the minor in this case or in any cases that OpenCourt records.”

FN24. This conclusion does not mean that a prior restraint may never issue to prevent the publication of information that has been revealed in a court proceeding. The Supreme Court “has frequently denied that First Amendment rights are absolute and has consistently rejected the proposition that a prior restraint can never be employed.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 570 (1976), and cases cited. See Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971); Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). If a judge takes measures to prevent information from being released to the public, but the information is nonetheless inadvertently disclosed (as in this case), the judge must consider whether prohibiting further publication of that information would serve a compelling interest and whether there is any less restrictive reasonable alternative to a prior restraint on publication. If the judge determines that the answers to the questions are, respectively, “yes” and “no,” an order of prior restraint, supported by the requisite factual
findings, may be constitutionally permissible.

FN25. The charges against Diorio in the Chelsea Division of the District Court Department include assault with intent to murder by means of a firearm, G.L. c. 265, § 18 (b ); aggravated assault and battery, G.L. c. 265, § 13A (b ); armed carjacking, G.L. c. 265, § 21A; assault by means of a dangerous weapon, G.L. c. 265, § 15B (b ); and various firearms offenses. According to Diorio’s counsel in that case, none of the victims had identified Diorio as their attacker as of July 22, 2011. Diorio makes no claim that the criminal case in Norfolk County involves an identification issue.

FN26. Due to technical difficulties, OpenCourt was unable to archive any proceeding that took place on July 5, including Diorio’s arraignment. Accordingly, Diorio’s challenge to the order allowing his arraignment to be archived is moot. We reach the issue, however, because it is important and fully briefed by the parties. See Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943).

FN27. Our rejection of Diorio’s arguments challenging the recording and archiving of his arraignment and OpenCourt’s use and placement of microphones calls for a similar rejection of his claim that he was denied his right to the
assistance of counsel because the judge’s ruling forced him to remain in the court’s lockup facility rather than attend the July 25, 2011, hearing in the court room. That is, because we have concluded that the broadcast and archiving of public proceedings in Diorio’s Norfolk County case did not impermissibly burden his right to a fair trial in his Suffolk County case, the decision of Diorio’s counsel to have Diorio remain in the court house lockup facility rather than attend the hearing in the court room–a decision in which Diorio appears to have joined or at least acquiesced–must be viewed as a voluntary, strategic choice, not an impermissibly compelled one.

FN28. Diorio’s July 5 motion requested only that the court “suspend any authorization allowing video and audio recording in the courtroom during the scheduled hearing.” His July 18 motion requested that posting of his July 5 arraignment be “permanently suspend[ed].”

FN29. Even if we were to consider the argument, it is unlikely that such an order could be justified. Although a defendant’s right to a fair trial is an important State interest, as suggested earlier in the text, less restrictive methods exist to protect this right. We see no reason to believe that publication of the defendant’s image in OpenCourt’s archive would lead to an unfair trial in the Suffolk County case. In any event, because of the
technical problems that made it impossible for OpenCourt to preserve the recording of the July 5 arraignment (see note 26, supra ), and because Diorio did not appear in court on July 25, there does not appear to be any recording of Diorio’s image in OpenCourt’s possession.

FN30. See revised rule 1:19(2)(b).

FN31. For example, in order to protect privacy interests, many jurisdictions prohibit or restrict the recording of proceedings involving minors or sexual assault victims. See, e.g., Administrative Order No. 6(c)(5) of the Supreme Court of Arkansas, Ark.Code Ann., Court Rules at 1100 (LexisNexis 2011); Rule 1001 of the Rules of the Supreme Court of Kansas, Kansas Rules of Court and Procedure at 749 (West 2012); Rule 4.02(c)(vi) of the Minnesota General Rules of Practice for the District Courts, Minnesota Rules of Court at 518 (West 2011); Rule 3 (d ) of the Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings, Miss.Code, Court Rules at 1697 (2011); Supreme Court of Missouri, Mo. Court Rules at 727 (West 2011); Guideline 2(c) of the Supreme Court Guidelines for Still and Television Camera and Audio Coverage of Proceedings in the Courts of New Jersey (2003) (promulgated under Canon 3A [9] of N.J.Code of Judicial Conduct).

In addition, because OpenCourt has indicated that the project may be
interested in recording protective order hearings under G.L. c. 209A in the future, we suggest that our judiciary-media committee consider whether it is appropriate to permit unrestricted recording, broadcasting, and posting of these hearings.

OpenCourt has been streaming public court hearings from the First Session courtroom in Quincy since May of 2011. We’ve received feedback about how our viewers use and value the footage, and we we realize it would be useful to show more of the court’s daily business — not just the cross-section that comes through the First Session.

While holding to our goal to carve a plausible model for other courthouses, we’ve often asked ourselves how we and other journalists around the country could do a better job shedding light on a bigger portion of the iceberg’s tip, and not necessarily using as much expensive technology.

In other words, just how much business does all of Quincy District Court do in a single day? How can we more fully capture the breadth of cases heard, day in and day out?

Cooperative Coverage

To help answer these questions, last month we hosted a cooperative coverage event at the court, an open invitation to citizen and traditional journalists alike to help us gather notes about everything that transpires in the building’s six public courtrooms.

Our combined notes, below — gathered between myself, Val, two Patriot Ledger reporters, two Harvard Berkman interns, one State House News reporter, and three citizen journalists — are inevitably incomplete. But we hope this coming together shows more fully the wide array of hearings before the court, the sheer volume of cases, and the fact that this is all happening every day, outside of normal public view.

We realized it’s easier than you might think for loosely affiliated citizens to collaborate on a one-off project (read: Twitter + Google Docs).

There were unsurprisingly a wide variety of cases. Some rough tallies: Assault & Battery (15, of which 3 were labeled as domestic violence), disorderly conduct (4), trespassing (3), resisting arrest (1), uninsured and/or unlicensed motor vehicle operation (5), speeding (3), shoplifting (5), larceny over $250 (1), receiving stolen property (2), distribution of an illegal substance (3), section 35 (1), sealed record request (3), interpreter needed (1).

This day was exceptional not by any standard of caseload or substance, only that more of us were there to see it and relay stories. For me and Val, the longer we’re in court streaming, the clearer it is that we’re sitting on a relatively unchecked sociological goldmine.

Opening Court Data

These notes from last month’s experiment are, at the least, a compelling glance at the river of data flowing through our local courts every single day.

At best they offer a new angle on approaching larger questions: how do we get to a place where public court data is more accessible? Why aren’t the stats being tracked more extensively and automatically in the name of scientifically diagnosing societal ills?

The Boston Globe recently published an extensive three-part series on Massachusetts OUI prosecutions, which undoubtedly required massive reporting energy. While that energy will always be required for strong narrative journalism, shouldn’t reporters and the public at large alike have easier access to court proceedings to begin with? Wouldn’t the State be better off if tracking the operation of its courts didn’t require the Herculean effort of a crack, paid investigative team?

Thanks again to everyone who helped make this possible. Our aim at this point, as always, is to provide a window into the everyday landscape of our legal system. Beyond that, we hope efforts like this lead to smarter methods to inform and awaken the public: to be a better radar for a community’s prevalent crimes.

What do you think? What do you see? What should we do differently if we host another event like this?

Cooperative Coverage Notes: December 5, 2011

First Session – Judge Mark Coven

1. 10:21 – Man charged with Assault and Battery and threats to commit a crime on Dec. 3
2. 10:22: Trespassing and disorderly. Dismissed on $250 in court costs, $100 court costs.
3. 10:23: Resisting arrest, disorderly conduct. DA will take look at it to see if can resolve today. Def will waive right to lawyer.
4. 10:25 Disorderly conduct (2 defendants). No lawyer appointed because no possibility of jail time. Can resolve today. Defs will waive right to lawyer and talk to DA. 2nd call
5. 10:28: Registration suspension, operating uninsured vehicle. No accident. Will talk to DA. 2nd call
6. 10:29: On a warrant. 6/5. Numbered plate violation, concealing, other charges… Will talk to DA.
7. 10:31: Domestic A&B. Does not qualify for court-appointed lawyer. Will hire a lawyer. Will wait for domestic DA. 2nd call.
8. 10:32: Owes $500. Posted $250 bail in Holbrooke. Has $100 today. She says will have remaining $150 by next week. Put over until 12/19.
9. 10:34: Domestic A&B. Doesn’t qualify for lawyer. 2nd call
10. 10:35: Defaulted because she was in Plymouth Highpoint program. Now in Adcare program. Next date 2/16.
11. 10:37: Custody. Probationer. Thought he cut his bracelet (but he didn’t). Didn’t answer his phone. Officers came to house and held overnight. Released and asked to meet w/ P.O.
12. 10:38: Custody. Larceny over $250 from Wal-mart.10:40: Receiving stolen motor vehicle.  Ordered to stay away from the victim until further hearing. Needs to perform community service to pay for court costs and will reappear Feb. 17.
13. 10;44 Wife is applying for possibly Section 35 for husband, who has a drinking problem. He’s not in court, he wouldn’t come in by himself. Issued warrant of apprehension.
14. 10:46: #6 is back. Count 2: $50. Count 3: $300. Not responsible on civil infraction. Numbered plate (2), driving uninsured (3)
15. 10:47 Custody. Fugitive from justice on court warrant from Maine. Receiving stolen property. DA makes a bail argument. Comm. vs Upton – only applies to light felonies. No new charges in Mass. At McDonald’s, ran her license, found fugitive. Def lawyer bail argument: 3 children who live w/ her parents in milton. Radiology degree. 3 contacts with law. No warrants in Mass. Open cases. Probation says she has a straight warrant out of Plymouth. Shouldn’t be held on bail. Bail $6,800 cash. Waiving rendition today. 2nd call
16. 10:53: #4 are back. Will plead guilty. Boilerplate: waiving right to lawyer, trial, presumption of innocence. Voluntary? Under threat? Under influence? Immigration warning. Asked age and how far he’s gone in school. do you understand everything? Still wish to plead guilty? Yes. Police report: DA: Fight in progress. Group of people arguing. Group wouldn’t leave when asked. Def. continued to fight, was handcuffed. Def #2 screamed at police, to let his friend go. Sentencing: Guilty file for 6 mo. + $50 victim witness fee
17. 10:58: #5 is back. $50 (count 1) $200 (count 2). Has until Jan 9 to pay
18. 11:00: Def gets lawyer assigned
19. 11:01: Domestic A&B. Private lawyer? 2nd call
20. 11:02: A&B with dangerous weapon. Non-domestic. Stay away from Clash of the Ash bar in Quincy. Young woman.
21. 11:09: Dist Class B, conspiracy to violate drug laws. Will hire private lawyer.
22. 11:10: Unlicensed operation of MV, failing to stop at intersection. Looking for portuguese interpreter. 2nd call (comes after #24). Will meet with DA to resolve case. Unclear about it. Asks judge to repeat.
23. 11:11: Custody. Possession to distribute Class D. Disorderly. disruption court proceedings. Allegedly tried to sell drugs in the courtroom. Went outside and causes ruckus in hallway. Allegedly attempted to swallow drugs.
24. 11:16: Default, didn’t come in. French speaker.
25. 11:19: #23: $100 on count 1, not respon on count 2
26. 11:21: Request for record being sealed. Having trouble getting job. Boston Financial. She had job and they ccalled her in and retracted .
27. 11:22: Request for recrod to be sealed. Can’t find job. In HR for 20 years. Someone told me off the recrod (a friend) but not on the recrod.
28. 11:24: Request for record being sealed. Career change, class said they he would have trouble getting job. Class B driver’s license.
29. 11:26: Shoplifting, 3rd offense. Bail argument DA: wal-mart, officer chasing boot on one foot, sandal on other foot through woods. asked cashier for bags. Filled bags with items and walked out. Ran. Working w/ 2 other woman. $606.10. 32 page record. 84 contacts w/ police. 305 guilties. 18 mos committed in 2008. 36 guilties for larceny over $250. Guilty for escape in 2008. asking $3K bail. BAIL DEF: Northeastern U graduate in accounting. Says she bleeding, 8.5 months pregnant. On probation in 5 courts. 2nd call. Bail on new case: $3K. Final surrender hearing for probation, held w/ o bail.
30. 11:37: Maine fugitive back up. Judge says that the defendant will be transported to Maine, bail is set at $6800 and is set to return to court on Dec. 29.
31. 11:46 – A Weymouth man charged with liscence suspension and speeding, he claims that he was not the guilty party and that someone “used my name”. Weymouth man is ordered to have a seat until an attorney is appointed.
32. 11:48 – Woman with two old cases owes some money to the court, she claims to have the money and is prepared to pay today. She is sent downstairs to pay the defaults.
33. 11:49 – A man in a wheelchair is claimed to have defaulted on a prior appearance. He had been held on a bail, on charges in June and missed a court date in August. He is scheduled to be back in court on Feb. 12.
34. 11:52 – Man owes $510 to the court, says he has the money and prepared to pay in full.
35. 11:54: Domestic DA. Dangerousness hearing – officers here, just waiting for police tape. Hearing at 2 pm. Case moved to Feb. 10.
36. 11:55: Domestic A&B case. Next date: 2/10
37. 11:58: Custody. Portuguese speaking provided translator. Motor vehicle violations. OUI charges. Right to operate suspended. A Portugese-speaking man, provided a translator, is being held on moving violations and OUI charges, his right to operate a vehichle is supsended. He pleads guilty to amended charges, will lose right to operate for at least two year.
38. 12:11: Custody. Domestic A&B. BAIL DA: Locked victim outside bc she wouldn’t pick him up bc there will children at home. Fire Department opened door. $1K cash BAIL DEF: Were at fundraiser together. She wouldn’t pick up, he walked to friend’s house, borrowed car. He threw phone out to her. Judge releases on personal recognizance.
39. LIVESTREAM OFF FOR RESTRAINING ORDER – Husband saw her walking w/ a friend, became enraged, she stayed at a friend’s house. He pushed her and hit her on the head. Is not asking for him to stay away from 3 kids. He will not testify. Wants RO for 3 months. Missing keys to car, computer. He will still coach son’s hockey.
40. 12:26: Domestic A&B. Pretrial: 2/24
41. 12:29 – Weymouth man charged with Class A substance possession in June. He made bail in Stoughton on similar charge this morning and has been in correction house, prison, since Sept. Judge sets bail at $200.
42. 12:30: Custody. Warrant has been out on him since June. In possession of large bag of heroin. Willing to go get treatment for addiction.
43. 12:37: Drug Court participant didn’t report to court until this morning. Final surrender hearing. She took a pill, that was not a narcotic, which is against the rules. The woman was in the sober house longer than normal because it was difficult to find work. The woman requested drug court for a shoplifting charge, but the case is recommended to be dismissed.  Probation (Jo) says woman was discharged from Edwina Martin in Sept, didn’t report to court until this morning. Very involved, has been calling Jo, has been going to meetings, has been afraid of coming in to court. Find her in violation and dismisses case. She won’t come back to Drug Court.
44. 12:43. Man charged with OUI, leaving the scene of an accident and other motor vehicle charges.
45. 12:49: Marijuana, poss w/ intent to sell
46. 12:55: Domestic A&B.
47. 12:57: In custody. Man charged with raping a child w/ force, 2 counts. Indecent A&B child under 14 several count. March 2002. Motion to turn camera off — denied. DA asks for $25K bail. GPS monitoring. Stay away from alleged victim and all children. Surrender passport. Friday: QPD report: rape happened 9 years ago, when she lived near def’s children in Hull. March 2002 visited him in quincy. Spent night in def’s daughter’s bedroom. Early morning hours. def placing hand over mouth and nose. Def. Climbed into bed. Smelled of diesel fuel. Big glasses. Ran hand over her body, forced hand into underwwear, put finger into vagina, She bit him. Def’s daughter didn’t wake up. Vaginally raped until ejaculated. He stifled cries. Pulled hand away from face. Hyperventilating. Whipsered. don’t tell anyone. this is what adults do when they’re in love. kiss her on neck. Parents picked her up. Told best friend who is def’s niece. Niece’s mother said to stop telling lies about her family. He was arrested for sexually assaulting other children recently, so she came forward. 6th young woman to come forward for rape of a child. As young as 6 yo. Has hosted foreign exchange students. BAIL DEF: Plumber who works w/ son. Case 2 weeks ago – GPS. (Here?) BAIl: $5K cash, same pretrial conditions. Out of range 2x. Coven will revoke bail and hold w/o bail if that happens again. Next case: 1/19
48. 1:17: Mistaken identity
49. 2:50 p.m. — 1.5k bail set for sex offense, drinks with friend of 10 years, sexual assault, phone battery stolen to prevent calling the police. Friend says wont testify against defendant.
50. 2:58 p.m. — offline for a restraining order hearing. guy threatened his kids. $350 cash bail set at $350. #assault.
51. 3:04 p.m. — Man requests that camera STAY ON. Camera shut off due to SJC directive against recording restraining order hearings.
52. 3:25 p.m. — $10,000 cash bail revoke bail on another. tried to sell drugs in court. propositioned court official. swallowing plastic bag. believed to be marijuana. crowd gathered outside courtrooms. 20 contacts with the court. two violations of probation. defense argues could have been gum in his mouth. was bailed on $100 in that arrest. $5,000 bail set.
53. 3:35 p.m. — #section 35. wife petitioning for restraining order. man becomes suicidal when drinking. ‘he has never physically harmed me.’ but ‘i am in fear at the moment.’ defense: voluntarily partaking in MATC program. granted restraining order for a year. no contact except by telephone. not to be within 100 yards.
54. 3:40 p.m. — Charged with breaking and entering (#b&e). Appointed attorney to represent during bail hearing. Attorney and defendant step out into hall to discuss the matter. assault and battery (#a&b) with a dangerous weapon. shoplifting. charged with malicious in boston district court on dec 9. this is new offense to that open offense. danger to community. filled cart with meat from a store and left. they approached him in the parking lot. threatened them with a knife. 8-inch blade. and 7-inch blade. ranted about taking food because hungry. wanted ‘that sweat white meat.’ 27 prior contacts. 18 guilties. 12 prior defaults. ADA asks $25k cash bail. defense: mental health problems. mr. smith 52 years old, graduated tech school. collects SSDI. on psychotropic medication. truly indigent. pray the court release him. judge says would like to get him help. but won’t happen today. if it protects him it protects society. he’ll be returned to roxbury. $1,000 cash on this case. stayaway from stop and shop. december 23 date.
55. 3:52  — larceny over. opiates oxycodone and heroin. MATC bed available.
56. 3:53 — vandalizing property. $5,000 cash bail asked for. randolph police report: breaking and entering. victim said rang
57. doorbell, loud bangs at back door. stay away from the victim. no contact whatsoever. he was held on DYS detainer. brockton.
58. 4:00 — mr. ortiz. released possession with intent to distribute class a (heroin).
59. 4:02 — surrender date. picked her up on warrants from breaking and enterings.
60. 4:07 — judge overrules motion to shut off the camera. note the ADA’s objection.victim testimony: 25 year relationship. violence within the relationship. found another lady. don’t do it when the kids are around. Ages of children: 24, 23, 7, and 2. don’t do that in front of the kids. he swears a lot. mf-er, fu – kinds of things he’ll say. he pushed me, i fell and he kicked me. daughter called the cops when he was choking her when he was drunk and she came home late. older daughter was there. 14 at the time. the day it happened he was arrested. he was getting a restraining order, she didn’t realize i had to go to court. son passsed away because of that? (huh?) says he doesn’t remember anything the next day. i don’t even thinks he gets that drunk anymore it’s just a game so he can say whatever he wants. had a big fight he was choking her on the ground after she said ‘you have to leave.’ the kids where there. older daughter yelling for her to get out get out. said he was going to kill me and kill the kids. kept punching the doors. he was drinking the night before. she went to the hospital.cross-exam: brings up that this could be solved if he didn’t live at home. asks whether she drinks.police testimony: blotchy neck upon arrival. crying. wants this to stop. daughter was upset. ambulance took her to hospital. at hospital, he called the on-call judge who called him back at the hospital. restraining order was issued.cross to police: was he doing anything when you arrived? police say he said ‘can you tell her to stop doing what she’s doing?’ he was agitated. he didn’t know details of domestic. he observed things thrown out into the driveway. ‘can you tell her to stop throwing stuff out the house.’ no alcohol on his breath or anything. agitated that he was thrown out. when you spoke to her.. spoke for 10 mins. after i went back in, i wanted to get the facts from her. when i went back in at de-escalated. he didn’t observe them the first time around. only saw the blotches the second time not the first time.
    closing by ada: only way to safety is to
    closing by defense: operates gas tanker truck.Ruling: declared dangerous and held without bail. january 6 hearing.

Third Session – Judge Heather Bradley

1. 9:10 a.m. – 9:45 a.m. – Judge Bradley went through a list of defendants with matters before the court and applicants for harassment/209A protection orders. Of the three dozen she named, about 10 hadn’t arrived in court on time and were assessed $50 default fees. Lawyers in each of the matters identified themselves and many cases were quickly scheduled for trials in February.
2. 9:50 a.m. – Judge Bradley denied a motion by one defendant to waive her $50 default fee, claiming she arrived just moments after her name was called. “It’s more important that you step into court when court starts so that you’re not defaulting,” Bradley said. “Even if you don’t see your attorney, you have to be in court.”
3. 10:12 a.m. – Judge Bradley hears arguments from ADA on a matter in which a defendant was nabbed by what police said was an illicit drug transaction in a parking lot. Defendant’s lawyer said she had been forthcoming with police and had a minimal prior record, in addition she works 40 hours a week and is pregnant. Bradley continued the case without a finding, ordering that the defendant submit to random drug screenings for a year. “After you give birth and certainly while you are pregnant, it’s in your best interest and your child that you remain drug-free,” Bradley said.
4. 10:23 a.m. – Judge Bradley heard arguments in a case in which Quincy police pulled over a motorist in a GMC Sierra who turned out to be unregistered and uninsured. In addition, he was driving with a suspended license. His record included a drug conviction in district court and two prior “operating after suspensions.” Although prosecutors and the defense attorney recommended continuing the case, Bradley rejected the deal. “He’s got a prior dismissal on an OAS. And he’s got a continuance without a finding on an OAS. Once you get that continuance without a finding, it’s not something you should be getting again,” she said. “This is an offense, sir, that you can go to jail for.” Bradley recommended a guilty verdict with a $500 fine on one of the counts and a guilty verdict on driving while unregistered. The defendant rejected Bradley’s recommendation and a trial was scheduled for March.
5. 10:40 a.m. – Bradley heard arguments in a case in which a defendant, while driving, sideswiped a car’s mirror and fled the scene. The ADA said the victim is not requesting any restitution because the damage was covered by an insurance company. The defense attorney described his client as a 25-year-old lobsterman who didn’t even realize he had made contact with the other car. Bradley continued the case without a finding, requiring the defendant to take a driving course.
6. 11:30 a.m. – Bradley next heard a case with a male and female defendant in which police searched the female defendant’s car and discovered hypodermic needles belonging to the male. The female defendant’s attorney described her as a clean 22-year-old who was forthcoming with police and agreed to go to AA/NA meetings twice a week. Bradley stipulated that the female defendant abstain from drugs and alcohol and submit to random testing
7. 11:45 a.m. – A defendant seeking a harassment prevention order against an ex-girlfriend, describing repeated phone calls and texts every day, including three while he was sitting in the courtroom. He said she would stop by parents’ house. Bradley issued a temporary order prohibiting the ex-girlfriend from coming within 100 yards of the applicant or from visiting his residence. She will have a chance to oppose the order on Dec. 14.
8. 12: 11 p.m. – Bradley heard arguments in a matter in which a defendant was accused of violating his probation by assaulting a girlfriend in October, his third assault charge this year. According to the ADA, the defendant, 21, had consumed alcohol and punched his girlfriend in the eye. In May, he had been arrested for pulling her hair while driving and causing a car accident. In September, his brother called the police, claiming that the defendant had punched him in the fact. While incarcerated for the earlier incidents, the defendant was diagnosed with bipolar disorder and has been taking medications.Although the Probation Department recommended a continuance, Bradley rejected the offer. “This type of escalation of behavior has to have consequences. I appreciate that probation is recommending the continuance. You’re not entitled to a continuance without a finding. It’s a gift. Probation is a gift.” Bradley recommended a guilty finding with a year suspended sentence. She also ordered the defendant to wear a GPS bracelet and abstain from alcohol, submit to random alcohol testing and participate in a batterers program. She also said that he needed to immediately enter mental health treatment, find a counselor and maintain his treatment regimen. “What I want to see is continuity,” she said. “As long as you do all that and you don’t get charged with anything else, at the end of the year this gets terminated.”break // afternoon session
9. 2-party hearing for an abuse prevention order. Ms Yang: asking the court to issue the orders for as long as possible against Francis Yu. Mr Yu opposes extension of harassment prevention order. Therefore the judge says that the court needs a full hearing. Judge asks bailiff to get records. Ms Yang is married to Francis Yu. She seeks abuse prevention order against husband Francis Yu because she claims husband physically abused her during altercation while young son was present on September 2, 2011.She reports 5 or 6 incidents of physical abuse in addition to the September incident. She summarized
   these for the judge. (Fumbles through plastic expanding file folder for snapshots of results of abuse).2:55: Her doctor urged her to report incident to police back in 2000 she sought medical treatment after one of
   the incidents. She also reports prior threats. She reports an incident happening while they were living in San Francisco, where they had lived from 2004 to early 2011. On May 4, 2011, she said Francis kept her in her room (?), under pretense of asking for sex, when she needed to pick up her son. She was able to call the police who intervened.She said that she is afraid that Francis is threatening to leave her and their son. Judge reminds her that the abuse prevention order is issued when there is a threat of abuse and asks her if she understands that.3:05 Court recess for 5 minutes.3:15 Judge received copy of court of probation records. She scans the documents.Ms Yang now reports that she and her son feel very scared. (I overheard a friend? Lawyer? Advise her to
   make sure she told the judge that she felt afraid.)She said John Chung Ye Lu has come by the house several times. I think this is the stepbrother. On one
   night in particular, she and her son pretended to not be home. Frankly she tells winding stories that are quite difficult to follow given her poor command of English. Judge asks what the relationship is between husband and stepbrother.3:35 Hearing suspended while she gathers together lawyersNew case: Michael Connors (sp?) and ..?She is seeking and abuse prevention order. Judge reviews affidavit. Mr and Mrs Connors are married but separated.*** A police officer in the courtroom told me I could not take notes during a restraining order hearing.

Fourth Session

Minor Motor Vehicle Hearings in front of Clerk Magistrate Bob Bloom. All quotes are from Clerk.

1. 9:15 Unsafe lane change. (lady with child called first) no responsibity
2. 9:16 Truman & North, ran stop sign, taking roommate to hospital, not responsible
3. 2 defendants not there
4. 9:18 ran red light, half into intersection, no history, not responsible
5. 9:19 red lights, blue lights in car, have been removed, defendant has pictures, not responsible
6. 1 defendant not here
7. 9:20 u turn, rushing didn’t see sign ” Clerk: “no signs on 128, can’t turn there either” not responsible this time
8. 9:22 failed to yield to pedestrian, red light violation. Driver said pedestrian cleared crosswalk. Responsible for red light violation. Defendant confused. Found responsible for whole thing, will appeal
9. 9:25 red light. Light turned yellow, could not stop safely. Well prepared defendant. “never see the officers, they’re disguised as trees” – clerk. I swear didn’t run the red light, Not responsible, “after all that”
10. 9:30 60 in a 30, car axle broken, couldn’t be doing 60. Maybe doing 35, 40. Responsible. No appeal.
11. 9:32 speeding, clocked by radar. Responsible 40 mph, $100, no appeal
12. 9:35 48 in 30, radar, by radar, responsible for 40, $100, no appeal
13. 9:37 marked lane violation, not carrying a license at time of violation. produces license, not responsible.
14. 9:38 red light, not responsible.
15. Defendant not here
16. 9:40 red light, in intersection on green, slowed down for turning traffic, surprised by being pulled over “I’ve been surprised many times” not responsible.
17. 9:42 texting while driving, “who were you messaging, the president?” Cop didn’t have paperwork, not responsible
18. 9:43, u turn, dropping kid off at school, not responsible
19. 9:44 red light, long history of tickets, not responsible
20. 9:45 unregistered vehicle, produces registration, not responsible
21. 9:47 failing to yield at accident scene, left arrow green, I did yield. Responsible. Not appealed.
22. 9:51 not signaling turn, open container. Someone says I threw out a bottle. Not 1st time with a bottle. Clerk looks at history: “You throw everything out the window.” Responsible for signal, $25 fine. Defendant says he’ll appeal. Clerk change mind, decides he’s not responsible, Commonwealth appealing.
    –
    Calling roll, sorting out who’s here, whose lawyer couldn’t show, where the police are.
    –
23. 10:07 driving with a suspended license, put in front of judge, if license reinstated will be dismissed
24. 10:09 commercial vehicle, parking illegally. Defendant has no other transport, has to park there. Judge.
25. 10:11 pool, no bottom, no fence or gate around pool. Filling pool. Confusion about filling pool as in water, or filling as in putting dirt back in the hole. Defendant says they’re filling the hole. Officer says they’re filling it in with debris, cited by building inspector for throwing tree into hole. Out to talk with officer.
26. 10:14 registration produced by 9 am session person, not responsible.
27. 10:15 vandalism, smashed car window with left hand. Long story that defies linear note taking about a party, a sister, and breaking a window an hour later of an uninvolved stranger. Already paid restitution. Judge.
28. 10:22 failing to stop for officer, driving to endanger. Cop turned and motioned in way driver thought was meant to proceed says driver. Demonstrates. Well prepared defendant, talking about officer training for traffic details, wanting officers record. Clerk not interested. “Don’t need to go to MIT to learn how to direct traffic.” Dismissing driving to endanger. Responsible for failing to stop, civil not criminal.
29. 10:33 operating without insurance, mass plates on car, proof of insurance from Illinois. Took plate from another car, daughter bring plates from Chicago. Judge.
30. 10:38 filled pool back, adjourned for 30 days to resolve (fill the hole appropriately)
31. 10:39 unregistered vehicle. Judge, will be dismissed if registered.
32. Julianne Green (spelling?) (10:41 AM) Vehicle in collision registered to Julie Green– Green called and said she was the operator of the red Volvo.Green said she was frightened by Miranda (operator of the other car) as Miranda got out of the car, and drove away (thought Miranda could get her license plate as she drove away) and took her son to a soccer game. Didn’t call the police because she said her phone had died.Green: I didn’t rear-end her; front left of Green’s car hit the front right of Miranda’s car; Miranda swerved as Green tried to get off the exit; called the police after the gameJudge: Why would Miranda swerve and deliberately stop in front of you? (10:46 AM) “That’s what driving’s all about– people move, change their minds, that doesn’t mean they should get hit.”
33. 10:52 vandalism, bat thrown through car windshield of car in woman’s driveway by woman. 2 previous restraining orders against ex-boyfriend driving car. Ex boyfriend believed email that said “come over and I’ll beat your ass” was a joke and an invitation. $8900 worth of damage. Ex-boyfriend says brother called him, told him to come over and work things out. Cross restraining orders. Ex-boyfriend arrested in June for breaking and entering for the purpose of harassment. Woman moved out of town to escape ex-boyfriend, who found her via obituary for her father. Hundreds of mails, stack 8-10 inches thick handed to clerk. Bat wielding woman in fear due to breaking and entering. Ex boyfriend says his account hijacked for purposes of sending email. Emails include pictures of ex boyfriend sending email. Dismissed. If women doesn’t pay what ex-boyfriend is out of pocket for the windshield (his insurance deductible), take her to small claims court.Same case, different notes:Crystal Flint (10:53 AM) – 10/17/11 – Report of vandalism; traveling up Williams and someone threw an object that damaged his windshield. When victim was asked who was it? He said it was the kid with pierced ears that lived across the street from Crystal. He also said he and Crystal used to date.Crystal said she warned him about staying away from her– two prior restraining orders against him (but had already expired)– said she broke the windshield.Crystal said she was scared and took matters in her own hands.Victim: $8900 worth of damages because windshield was shattered (2010 Mercedes); wanted to add assault to suit potentially because he was in the car. Got a call from Crystal’s brother asking him to be at the house at 9:30 PM (to work things out re: money Crystal’s mom owed him), I wasn’t expecting that I was uninvited.
34. 11:20 charge not read, but mention of a “saloon’s worth” of alcohol in car. Electrical engineering student is defendant. Clerk notes a conviction would keep him from getting engineering license. Dismissed.
35. 11:24 “another phd student. Wait til you hear this one” 17 yr old female. shoplifting of honey barbecued chicken wings worth $6. Are they good? Asks clerk. Yes says police officer. Is that expert testimony? “if you’re going to steal chicken wings for friends, at least make it enough wings to go around” $100 court costs, dismissed.
36. 11:30 no charge read. “Bizarre behavior” “naturalist” naked in the Blue Hills. Raised as a “naturalist” nudist, was out on a Friday 4pm, cold and rainy day, didn’t expect to see anyone. Apologized to man who saw him. Put aside to for discussion.
37. 11:35 private complaint. Assault and battery, two times. Husband accused by wife, divorce pending, husband got upset, hit and shook her June and Sept 15 again. Sham marriage says defense lawyer, working with immigration, trying to get this women out of his life. “They’re trying to get me deported” says wife. “You said that, not us” answers lawyer. Husband is battered man, suffers from battering syndrome says lawyer. “That’s his child, he must have found some tenderness along the way” He has restraining against her. Continued to allow divorce and other proceedings to take their course.
38. 11:50 Back in the Blue Hills. Naturist, naturalist. Police officer points out that nudists are naturists, not naturalists. People hike in the Blue Hills. Even children. Open and gross lewdness. Wasn’t open and gross. Indecent exposure. Was trying to avoid people, not flashing. Discussion of defendant’s business, owns small business employing 10 people, high end clients. Defendant talking, saying this is a one time thing, never happen again. “People pay lawyers then they talk themselves” “Jails are full of one time thing.” open and lewd charge dismissed. What would defense suggest for court costs? $250 for speeding says lawyer, would accept that. $1000 in court costs says clerk. Dismissed. (Hard to hear that last give and take as anything other than “how much are you willing to pay to make this go away?”)

Jury Room A

1. 9:14 – Four matters. Two matters stem from the same incident–summoned some civilians and officers (1407 and 2794). Trespass claim; civilian witness necessary can’t be here today. Second defendant in custody? No, he made bail. Defendant not in courtroom yet. Third defendant, Johnson, in custody. Fourth defendant, Gaggs (sp?). Commonwealth makes an excited utterance motion. Defendant not in courtroom yet. Fifth defendant, Lazaron (sp?). Sixth defendant, Hawk. Codefendant motions to suppress– papers haven’t made it over yet.
   Recess at 9:30 AM
2. 10:12 Officer not available for hearing. Efforts to get into the apprentice program– request to not enter a default against him. Both matters to continue in February on motion to suppress.
3. Joanne Coffee. February 28 as jury trial date.
4. 10:19 – Adam Johnson. Witness summons went to wrong address (victim)
   Excited utterance motion– dispatch evidence (911 tape)–
   P: Learned who the dispatcher is…not certain if she’ll be able to in because she’s working today
   D: Wait for dispatcher to appear; ready for trial to begin today. Will hold it
5. Nema Caramose. Trooper indicated he’ll be here (four witnesses total for the Commonwealth). Will hold.
6. Shaun Lazaron. Two witnesses for Defense. One witness for Commonwealth. Will hold.
7. Breanna Hannery- CW answers not ready. Charge for larceny. Commonwealth: Two civilians and one officer here; two officers on call.
8. Charge for trespass. Commonwealth: Necessary witness on her way in.
9. Charge for shoplifting. Commonwealth: Requires a civilian not yet here. This charge is dismissed for want of prosecution.
10. 10:25 – Marcus Gaggs (sp?). Defendant appears pro se. Victim is here– asserting her marital privilege; she’s here with children. Mrs. Gaggs: Married as of 2009; married in TX; wishes to testify her marital privilege to not testify for the Commonwealth against her husband; CW won’t be able to prosecute her husband if she doesn’t testify. Commonwealth: Not ready for trial. Case is dismissed for want of prosecution based on assertion of marital privilege
    10:27 RecessJury Room B
11. 9:24 AM: SunTrust Bank: Amend because of error in interest calculation
12. Ann Fitzgerald: Vacate motion to dismiss; find a default
13. American Express v. Dorothy Latham: Motion to assess damages– didn’t calculate attorney’s fees, so may deny the attorney’s fees
14. 9:29 AM: Several motions to amend because left out Defendant’s middle initial. Faroul: Liability not disputed, just disputing the amount owed (maybe some fraud involved)– insurance for deceased spouse. 9:32 a.m.: Motion for judgment on the hearings– she doesn’t dispute liability, just amount (owe money on credit card); another hearing to prove how much D owes (keep in mind there are interest payments)– an assessment hearing
15. David Roberts: P’s motion for judgment on the pleadings; D doesn’t dispute owing the money, just inability to pay right now.
16. Timothy Farland: P’s motion to attach wages; judgment entered in March 2008; current balance is $3,335.82; allowed the trustee’s summons for the amount; successive service is denied.
17. Credit union v. Patani (spelling?): Successive service denied.
18. Jacklyn Reed: Motion to attach; trustee summons;
19. 9:39 AM: Show cause hearing scheduled for 12/19. Already agreed to a payment plan– nothing will happen for a year.Recess
20. 1:20ish p.m: Jury Trial – Intoxicated while carrying a licensed firearm:Jury selection (voir dire):No one knows either party or witnesses. One person worked for police department. No one admits bias. Some people would have difficulties with 2 day trial. Instructions to jury about innocent until proven guilty. Posessing gun while intoxicated. Opening statements: 3:00 witness 1, Holbrook police sergeant. Experience. Call your attention to 4 AM. Where we’re you? Dunkin Donuts. Why? They open at 4. Called to address, saw defendant coming from back, asked if had weapon, said he had license, asked again, reached for gun, told him to stop, removed gun. Glock Model 33, chambered 357 sig, short barreled semi automatic pistol. Smelled of alcohol. Asked if he drank, 3 drinks. Took back to Holbrook police station, still smelled alcohol from across table. Chain of custody of gun, sent to state forensic lab. Sgt has sealed box, notations described. Asks court permission to open box, describes notations inside the box. What is the big black object? A firearm? Would you show to the jury? May I clear the weapon to make it safe? Yes. Do you recognize this? Weapon I took from defendant. Marked for id. Sgt puts wire tie thru barrel to disable weapon. Other individual at scene was Ben Howard, but provide his brother Jamal’s (?) ID. Police were able to “ascertain that Ben Howard was Ben Howard”.
    3:20: Cross examination:
    Defendant walked up driveway in heavy snow without stumbling. Responded to officers commands without belligerence. Does sgt know what was going on with gun when it was at police station from feb to sept? No.
    3:26: Holbrook police officer observed smell of alcohol on defendant, slurred speech as defendant transported to station
    3:30 Holbrook police Sgt: transported weapon to state police crime lab in Lakeville. Chain of custody, weapon, serial number the same. Picked up box, at later date, along with report. ID report. (couple of jurors yawning, eyes drooping)
    3:38 cross: where was the gun from feb to sept 2010? in Holbrook evidence room? Why so long? Just didn’t getvaround to transporting it.
    3:40 Mass state trooper, ballistic forensic tech: certifies that weapon is firearm as defined by Mass law, ammunition are functional bullets. Declared as expert ballistic witness. Did you test fire it? Yes. Was it functional? Yes. Gun has laser sight, makes those scary little red dots. ID the magazine. (witness rolls eyes, looks apologetically to jury while court discusses if magazine was exhibit 2 or 3)
    Certification: that the weapon And ammunition are firearm as defined by Mass law
    3:55 Cross examination – Were the bullets in the magazine? Don’t recall, expedited request, went directly to witness rather than normal intake.
    4:02 Defense. Defendants girlfriend for 3 yrs. went to dinner at Daily Catch, one bottle of wine, defendant had 2 glasses. awoken at 2:30 AM by phone call, ben howard asking For ride to Holbrook,. Got to house, 2minutes later cops arrive, arrest defendant.
    4:02 p.m: Witness – Defendant’s Girlfriend: Exam: Girlfriend of 3 years, went on date that night, split a bottle of wine, she had more
    Phone call at 2:30 am, someone asking for ride. Went to pick him up in car and tok him home. 2 minutes after getting to the house the police arrested him.Cross-Exam:
    First saw him at 7:30. Came from work. Probably not drunk, wasn’t with him before.
    Repeated the entire story with a stern tone, questioning at various parts whether she ever left him alone, if she had any alcohol in her house.4:10 cross exam continued. Walk witness thru evening looking for opportunities for defendant to drink. None, except maybe when she went to bathroom, but not sure she even had alcohol in the house.4:17 p.m. adjourned, with warnings to jurors not to talk, research case, all you can say is the judge was nice to you.
    Unadjourn. Discussion of how to handle gun evidence overnight. Discussion of jury instructions with respect to firearms licensing.

An 18-year-old accused of murdering three people in Weymouth in November will remain detained without bail following a status hearing today in Quincy District Court.

After a competency evaluation was performed at Bridgewater State Hospital, officials there have not asked that Donald Rudolph be committed, according to Rudolph’s lawyer.

Rudolph will be held at the Norfolk House of Corrections pending a probable cause hearing on January 20. However, the case is likely to be sent up to Superior Court before that date.

Read WBUR’s story and view Donald Rudolph’s full hearing below: