DA Files Motion Requesting Redaction, OpenCourt Responds

By Val Wang on September 26, 2011

We wanted to let you know of another development in the Commonwealth vs. Barnes case, which is set to be heard in the Massachusetts Supreme Judicial Court later this fall.

On September 9, 2011, during a period when the presiding judge was having a sidebar conversation, the clerk on duty while chatting with a female assistant district attorney (ADA) asked her where she lived. She responded (inaudibly) with the name of her town and the clerk repeated the name. The ADA was neither named nor clearly visible in the recording. They did not alert us to this slip.

Instead of following the guidelines for requesting a redaction that were developed in consultation with the DA’s office and at the request of the Court, the Norfolk County DA’s office filed a motion to the Court, asking the Court to order us to redact the conversation from our archives. They said the redaction would be “necessary for the safety and privacy of the assistant district attorney and all Norfolk District Attorney’s Office employees.”

Though the situation bears no relationship to the Commonwealth vs. Barnes case, the DA’s office appended the motion to the case.

They did not serve our attorney with the papers and only did so when requested, after the Court had ruled on the motion.

Had they followed the guidelines, we would have voluntarily redacted the information.

Before we had a chance to reply, the Court ruled that we should redact the “name and personal information of the victim.” To be clear, there was no victim involved in the incident described in the motion and the name of the ADA was never spoken.

Though we view an order of the Court as an unlawful prior restraint, as argued before the SJC earlier this summer, we have complied with the order. We edited out the part of the conversation pertaining to the naming of the town.

We filed the following memo with the Court, laying out our perspective on the incident and requesting that the DA’s office serve us with motions pertaining to our work:

You can read the court filings leading up to this, here:

Ex Parte Motion by the District Attorney’s office

Court ruling