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SJC-11578

                 COMMONWEALTH   vs.   NATHANIEL FUJITA.



            Middlesex.    May 6, 2014. - January 27, 2015.

  Present:     Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.1


Constitutional Law, Jury, Public right, Access to court
     proceedings. Jury and Jurors. Practice, Criminal, Jury
     and jurors, Record. Impoundment. Supreme Judicial Court,
     Superintendence of inferior courts.



     Indictments found and returned in the Superior Court
Department on August 4, 2011.

     Following entry of an order on a posttrial motion for
access to the jury list by Peter M. Lauriat, J., review of the
order was sought by a nonparty from a single justice of the
Appeals Court.

     The matter was reported to a panel of the Appeals Court by
Mark V. Green, J. The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.



    1
       This case was argued before a panel that included the
Honorable Roderick L. Ireland prior to his retirement as Chief
Justice of this court. The result of that argument was an order
of remand to the trial court. After the response to that order
of remand, the Honorable Ralph D. Gants participated in the
deliberation on this case and authored his separate opinion
subsequent to his appointment as Chief Justice of this court.
                                                                   2


     Jonathan M. Albano for Globe Newspaper Company, Inc.
     Eva M. Badway, Assistant Attorney General, for the Attorney
General, intervener.


     CORDY, J.   This appeal arises out of a Superior Court

judge's ruling on a motion by the Globe Newspaper Company, Inc.

(Globe), seeking postverdict access to the "jury list"

containing the names and addresses of the jurors who served at

the trial of Nathaniel Fujita on charges of murder in the first

degree and assault and battery by means of a dangerous weapon.

The trial began on February 11, 2013.   On March 1, while the

trial was ongoing, the Globe filed its motion to obtain the

names and addresses of the jurors immediately following entry of

the verdict, for the purpose of ascertaining their willingness

to discuss the trial.2   On March 7, 2013, the jury returned

verdicts of guilty.   Seven days later, the trial judge held a

hearing on the Globe's motion.   On March 26, he ruled that he

would send letters to the jury asking if they were "amenable" to

speaking to the press, and would permit disclosure only of the

names and addresses of those jurors who responded affirmatively

to his letter.   On April 16, 2013, presumably at the judge's

direction, the Superior Court clerk's office provided the Globe

     2
       The Commonwealth apparently filed an opposition to the
motion filed by the Globe Newspaper Company, Inc. (Globe),
citing the "privacy interests of the jurors." The Commonwealth
has not filed a brief in this appeal, but the Attorney General
has appropriately filed a brief and supplemental record appendix
as intervener. See note 3, infra.
                                                                       3


with the names and addresses of two jurors willing to speak to

the press, along with instructions that the Globe was to "use

this information only for the purpose stated in [its] motion"

and "not to disseminate this juror information to other news

agencies or third persons."

     The Globe filed a petition for relief from the judge's

ruling with a single justice of the Appeals Court pursuant to

G. L. c. 231, § 118.     The single justice initially denied the

petition, but on reconsideration reported it to a panel of the

Appeals Court.3    We transferred the petitioner's appeal to this

court on our own motion.

     After oral argument, we remanded the case to the Superior

Court judge for findings regarding questions about the creation

and retention of any list of jurors empanelled to render a

verdict in the case.4

     3
       The single justice of the Appeals Court also ordered that
the Attorney General be notified of the Globe's petition and be
given an opportunity to be heard. See Commonwealth v. Silva,
448 Mass. 701, 706 (2007). The Attorney General then proceeded
as an intervener.
     4
       More specifically, the case was remanded to the Superior
Court for findings regarding the following questions:
          "1. In what form, if any, were the names and
     addresses of the jurors kept for use during the trial? If
     the names and addresses were kept, by whom were they kept?
          "2. From what sources and by whom was information
     about juror names and addresses assembled?
          "3.     Was there a "jury list" created?   If so, by whom?
                                                                   4


     For the reasons more fully set forth herein, we conclude

that the public's long-term interest in maintaining an open

judicial process, as embodied in the United States Constitution

and Massachusetts common law, requires that a list identifying

the names of jurors who have been empanelled and rendered a

verdict in a criminal case be retained in the court file of the

case and be made available to the public in the same manner as

other court records.   Only on a judicial finding of good cause,

which may include a risk of harm to the jurors or to the

integrity of their service, may such a list be withheld.5

Insofar as the only basis for the order in this case was the

judge's aversion to exposing jurors to press interviews and the

personal preferences of the jurors, his order must be set aside

in part, and a list identifying the names of jurors (without

addresses) be disclosed.6


          "4. Was this information made part of the court file
     in this case? If so, when?
          "5. What is the custom and practice of retaining such
     information, whether in the court file or some other file?"

     5
       Before making such a list available, the trial judge may
conduct a hearing with respect to whether good reason exists to
impound the list.
     6
       We also conclude that the limitation on the further
dissemination of the juror names constituted a prior restraint
on the press forbidden by the First Amendment to the United
States Constitution and art. 16 of the Massachusetts Declaration
of Rights, and it also must be set aside.
                                                                    5


     Discussion.   It is beyond debate that, absent extraordinary

circumstances,7 the identities of jurors empanelled to serve at

criminal trials are presumptively public under long-standing

Massachusetts law, practice, and tradition, even in high-profile

and contentious cases.8

     By statute, the lists of all jurors summoned to jury

service each month in every court, containing the "name, address

and date of birth of each juror," are public records "available


     7
       See Commonwealth v. Angiulo, 415 Mass. 502, 527 (1993)
("The due process clause precludes the empanelment of an
anonymous jury at a criminal trial unless anonymity is necessary
to protect the jurors from harm or improper influence").
     8
       For example, jury selection in the 1770 prosecutions of
the British soldiers charged with the Boston Massacre was open
to the public, and the identities of the jurors who acquitted
the soldiers were known to the community. See 3 Legal Papers of
John Adams 17-19, 49 n.1, 99-100 (L. Wroth & H. Zobel eds.
1965). Similarly, in the 1806 trial of Thomas Selfridge, a
prominent Boston attorney accused of shooting and killing the
son of a political rival in the middle of the day on State
Street, the jurors were drawn and publicly announced at the
trial -- the first being Paul Revere (who went unchallenged) --
and were listed in the publicly available reports of the
proceeding. See, e.g., Trial of Thomas O. Selfridge, Att'y at
Law, Before the Hon. Isaac Parker, Esquire, For Killing Charles
Austin on the Public Exchange, in Boston, August 4th, 1806, at 9
(Russell & Cutter, Belcher & Armstrong, Oliver & Munroe, and
William Blagrow, 1807) (juror empanelment on Dec. 23, 1806).
Similarly, in the 1849 trial of Professor John W. Webster for
the murder of Dr. George Parkman (one of the most intensely
followed and reported murder trials in the United States at the
time), the jurors' names were publicly drawn at the beginning of
the trial and published in special editions of the newspapers of
the time. See, e.g., Trial of Professor John W. Webster for the
Murder of Dr. George Parkman in the Medical College, at 6
(Boston Herald Steam Press, 1850) (listing names of jurors
selected for trial).
                                                                       6


upon request for inspection by parties, counsel, their agents,

and members of the public."     G. L. c. 234A, § 67.   Under Federal

jurisprudence, there is also a constitutional right of public

access to court proceedings, including juror empanelment

proceedings.    See Press-Enterprise Co. v. Superior Court, 464

U.S. 501, 507-510 (1984); Commonwealth v. Cohen (No. 1), 456

Mass. 94, 106-107 (2010).     This right is grounded in both fair

trial and First Amendment principles.     Cohen (No. 1), supra at

106.    In addition, in Massachusetts, we have "long recognized a

common-law right of public access to judicial records."

Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004).

Together, these rights are intended to ensure and instill public

confidence and trust in our system of justice, and in the

integrity and fairness of its proceedings.

       It is also beyond debate that the identities of the jurors

empanelled to decide a case at some point become known to the

court and become part of the court record in the case.     This

often happens as it did here, during the individual voir dire of

the potential jurors, when jurors are identified not just by

their assigned juror numbers, but also by their names.      If

disclosed during the empanelment process, the information is
                                                                      7


duly recorded by the court reporter or recording system, and is

later available for transcription.9,10

     Whether or not the names of the sitting jurors publicly

emerge during the empanelment process, there is little doubt

that court officials assemble a tangible list of their

identities for use during the trial.     Historically, these "juror

lists" have been included and can be found in the court files of

closed cases that proceeded to trial.    See Hindus, Hammett, &

Hobson, Massachusetts Superior Court Files, 1859-1959 (1980)

(finding that such files "usually include a list of jurors").

See also C. Menand, A Guide to the Suffolk County Inferior Court

of Common Pleas 13 (1981) ("Juror lists appear regularly among

the papers after 1797 and are filed . . . at the beginning of

the case file papers for each term").

     On remand, the judge found that several such lists had, in

fact, been created, but were neither preserved nor included in


     9
       In his decision on the Globe's motion, the judge observed
that "[t]hroughout the trial of this matter, justice required
that the names of the jurors be kept from public access to
protect them from outside influences that could jeopardize the
parties' rights to a fair trial," citing In re Globe Newspaper
Co., 920 F.2d 88, 90 (lst Cir. 1990), and it appears that during
their empanelment process the names of the jurors were only
mentioned at their individual voir dire examination done at
sidebar and out of the hearing of the public in attendance.
     10
       It is not always the case that the names rather than the
numbers assigned to jurors are disclosed, and therefore
transcribed by the court reporter during the empanelment
process.
                                                                     8


the case file.    First, there was a "jury [e]mpanelment sheet"

containing the names and badge numbers of all prospective jurors

sent to the session for empanelment.     This list did not include

addresses.     It was used by the session clerk to mark the jurors

who were sworn, excused, or not reached.    This list was returned

to the jury pool office after the jury had been selected, and

not retained for inclusion in the court file of the case.

Second, the session clerk created a separate "Daily Report of

Juror Attendance," listing the empanelled jurors' names and

badge numbers but not their addresses.    This list was used to

record daily juror attendance.11    It was also returned to the

jury pool office each day and not retained for the court file of

the case.    Finally, the session court officers prepared a list

of empanelled jurors and their telephone numbers, which was

provided to the session clerk, and was to be used in the event

there was a need to contact jurors during the trial, for

example, if a juror failed to appear or if the court session

needed to be cancelled.    This list was destroyed at the end of

the trial.12


     11
       This list was created by the session clerk both in
electronic and paper forms.
     12
       The judge also maintained copies of the confidential
juror questionnaires previously completed by the jurors who were
empanelled on the jury. The questionnaires are not public
records, G. L. c. 234A, § 23, and were appropriately destroyed
after the trial.
                                                                     9


     In deciding this case, we are compelled to decide not only

whether a list of jurors was maintained in the court file of the

case, thus becoming a judicial document accessible to the public

unless impounded, Commonwealth v. Winfield, 464 Mass. 672, 679

(2013), but also whether, if not, some form of a jury list

should have been included and maintained in the court file.    The

Globe has directed us to historical cases supporting the

tradition of including such a list in the court files of

criminal cases,13 and has also identified examples of juror lists

readily available in Superior Court files of recent high-profile

criminal trials, usually in the form of "Daily Reports of Juror

Attendance."14   Based on the findings of the judge in this case,

it is apparent that there is inconsistency in the current

practice of retaining juror lists, a matter of significant

public and systemic importance.

     Consequently, we take this opportunity to direct that a

list of the names of jurors empanelled in any criminal case be

included in the court file of the case, no later than at the




     13
       The history of this tradition has been confirmed by our
own random review of records of cases (mostly murder trials)
tried by juries before the Supreme Judicial Court in the
Nineteenth Century.
     14
       Also labelled as "Daily Trial Attendance Records" in some
court files.
                                                                  10


completion of the trial.15   This directive is consistent with the

prior practice of the Superior Court, both historically and in

more recent times.16

     Having determined that a juror list is a court record, we

turn to the subject of its impoundment.    In order to overcome

the public right of access to judicial records, we have

repeatedly stated that there must be a showing of "good cause,"

Republican Co., 442 Mass. at 222-223, and cases cited, and that

in determining whether good cause has been shown, "a judge must

balance the rights of the parties based on the facts of each

case."    Id., quoting Boston Herald, Inc. v. Sharpe, 432 Mass.

593, 604 (2000).    "In doing so, the judge must take into account

all relevant factors, including, but not limited to, the nature

of the parties and the controversy, the type of information and

the privacy interests involved, the extent of the community

interest, and the reason for the request" (quotation and


     15
       This list is not to include information obtained from the
confidential juror questionnaires and is appropriately limited
to the names of the jurors on the daily attendance records.
     16
       In a letter dated May 18, 1983, James P. Lynch, Jr., then
Chief Justice of the Superior Court, addressed the practice in a
letter to the Massachusetts Newspaper Publishers Association.
In that letter, Chief Justice Lynch explained that, "[a]s a
practical matter," a person could properly obtain juror names
from the session clerk's "daily attendance record[s]," and could
then obtain juror addresses from the jury commissioner's list
(of all jurors summoned to the court session) on file and
publicly available in the clerk-magistrate's office. See G. L.
c. 234A, § 67.
                                                                    11


citations omitted).   Republican Co., supra.    Importantly, we

have emphasized that in balancing these interests, "impoundment

is always the exception to the rule, and the power to deny

public access to judicial records is to be strictly construed in

favor of the general principle of publicity" (quotation and

citation omitted).    Id.   Access to information about the

operation of the administration of justice, including

information about jurors who render justice, promotes confidence

in the judicial system by, among other things, providing an

independent nongovernmental verification of the impartiality of

the jury process, and educating the public as to their duties

and obligations should they be called for jury service.       The

burden falls on the party seeking to limit or bar access to

judicial records to overcome the presumption that the records

ought to be accessible to the public.     Id. at 225.

     We review decisions to restrict access to or impound

judicial records for abuse of discretion or other legal error.

Boston Herald, Inc., 432 Mass. at 601.     In the present case, the

only reason proffered to support good cause was the apparent

personal preferences of the jurors who responded to the judge's

letter sent approximately one month after the trial had

concluded.17   We are not indifferent to the desire of many jurors


     17
       It is important to note what this case is not about. It
is not about impounding the names and addresses of seated jurors
                                                                   12


to return to their private lives uninterrupted by media or other

inquiries about their service; however, standing alone, such

interests ordinarily will be inadequate as a matter of law to

support an impoundment order in the face of the great weight we

afford to the principle of public availability.     In this

respect, we agree with the United States Court of Appeals for

the First Circuit that "where -- as here -- the trial judge

points to no special reason for confidentiality other than the

personal preferences of the jurors . . . the public's long-term

interest in maintaining an open judicial process must prevail in

the balance."    In re Globe Newspaper Co., 920 F.2d 88, 91 (lst

Cir. 1990).     A judge's personal distaste for press interviews of

jurors is accorded no weight in this balancing.18    Although we

recognize that there are courts in other jurisdictions that have


during the course of a highly visible trial where the risks of
inappropriate juror contact would jeopardize a party's right to
a fair trial. It is also not about withholding juror identities
after trial where there is a risk of personal harm to the
jurors. See Silva, 448 Mass. at 708. Nor is it about a judge's
authority to impound the responses of jurors to highly invasive
or personal questions (necessitated by the nature of the case to
be tried) posed during the individual voir dire process. In
each of these circumstances, good cause would be readily
apparent.
     18
       It is, however, not inappropriate for a trial judge to
meet with the jurors postverdict to discuss the importance of
and value in not disclosing what was said by other jurors in the
deliberative process, and to advise jurors of their right not to
respond to media requests, and to bring acts of harassment to
the court's attention promptly. See, e.g., In re Globe
Newspaper Co., 920 F.2d at 91 (judge "properly urged the jurors
to keep their deliberations confidential").
                                                                  13


concluded that there is no public right to know the identities

of jurors or that the privacy interests of jurors alone trump

the public right of access to judicial records that disclose

their identities, see Commonwealth v. Silva, 448 Mass. 701, 709

n.14 (2007), we have historically concluded otherwise.   "[T]he

prospect of criminal justice being routinely meted out by

unknown persons does not comport with democratic values of

accountability and openness."   In re Globe Newspaper Co., supra

at 98.

     Accordingly, the ruling of the judge is reversed in part,

and the names of the jurors shall be made available, without

restriction, to the Globe.19

                                   So ordered.




     19
       The restriction on dissemination placed on the Globe's
use of the names and addresses lawfully obtained from the
court's records is plainly a prior restraint forbidden by the
First Amendment and art. 16. See George W. Prescott Publ. Co.
v. Stoughton Div. of the Dist. Court Dep't of the Trial Court,
428 Mass. 309, 310-312 (1998); United States v. Quattrone, 402
F.3d 304, 311-313 (2d Cir. 2005). The Attorney General
recognizes the problem, but suggests that the matter should be
remanded for clarification, where it is not clear whether this
restriction was part of the judge's original order. The
restriction fails in any case.
     GANTS, C.J. (concurring in part and dissenting in part).      I

agree with the court that the names of jurors, once announced in

court during jury selection, as they were in this case, are part

of the public record of the case and that, in the absence of an

order of impoundment supported by good cause, the names are

available to any member of the public.1    Therefore, if the Globe

Newspaper Company, Inc. (Globe), wished to learn the names of

the jurors, it, like any person, could have ordered a transcript

of the jury empanelment, even an expedited transcript, and

obtained the names from that transcript.    See Commonwealth v.

Winfield, 464 Mass. 672, 675 (2013) ("right of access to court

trials [under the First Amendment to the United States

Constitution] includes the right to purchase a transcript of the

court proceeding that was open to the public").    But the Globe

did not choose to exercise that right; instead, it asked the

court to create a document that was not part of the case file,


     1
       "The due process clause precludes the empanelment of an
anonymous jury at a criminal trial unless anonymity is necessary
to protect the jurors from harm or improper influence. . . .
[N]o anonymous jury is to be empanel[l]ed in the courts of the
Commonwealth unless the trial judge has first determined on
adequate evidence that anonymity is truly necessary and has made
written findings on the question." Commonwealth v. Angiulo, 415
Mass. 502, 527 (1993), citing United States v. Thomas, 757 F.2d
1359, 1365 (2d Cir.), cert. denied sub nom. Fisher v. United
States, 474 U.S. 819 (1985), and cert. denied sub nom. Rice v.
United States, 479 U.S. 818 (1986). Unless the judge has made
the findings necessary to justify an anonymous jury, the name of
each prospective juror should be announced on the record before
that juror is empanelled.
                                                                    2


listing the names and addresses of the jurors, and provide that

newly created document to the Globe.   I do not agree with the

court that, following the verdict, a list of the jurors' names

must be created and made a part of the court file, available to

any member of the public on request unless the list is ordered

impounded based on a showing of good cause.

    I understand that the creation of such a list would make it

easier and less expensive for the Globe (or, for that matter,

any member of the public) to contact jurors about the verdict

without incurring the expense of ordering a transcript of the

jury empanelment.   But the constitutional right of public access

to court trials does not require courts to create documents so

that the press or members of the public may learn what occurred

at trial without the need to attend the trial or order a

transcript, whether the document asked to be created is a

compilation of a list of jurors or of witnesses, or a summary of

key testimony.   Cf. id. at 677-678 ("We know of no case where

the First Amendment right of access has been extended to include

a right to [a court document or recording that is] not the

official record of the trial and is not referenced or contained

in the court file").   Nor does the common-law right of access to

judicial records apply where, as in this case, no juror list was

filed in court and made a part of the case file.   See id. at 679

("Where a document or recording is kept in the court file, it is
                                                                    3


a judicial document under our case law that is accessible to the

public unless impounded").   Where the court is in possession of

documents or information that are not kept in the court file,

such as a list of trial jurors, the appropriate standard is

"whether a record that is not kept in the court file is

nonetheless so important to public understanding of the judicial

proceeding that it should be presumed to be public, so that the

public may 'assume a significant, positive role in the

functioning of the judicial system.'"   Id. at 680-681, quoting

Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 607 (2000).     The

burden rests with the proponent of the motion, here the Globe,

"to show why the interests of justice would be served by making

a document that is not presumptively public available to the

public in this particular case."   Winfield, 464 Mass. at 681.

"We review the judge's decision for abuse of discretion."     Id.

Applying that standard, I conclude that the judge did not abuse

his discretion in making available to the Globe only the names

and addresses of those jurors who wished to speak with the

Globe.   Therefore, I respectfully dissent.2




    2
      I agree with the court that, once the names of the jurors
are made publicly available, any order restricting dissemination
is an unconstitutional prior restraint forbidden by the First
Amendment to the United States Constitution and art. 16 of the
Massachusetts Declaration of Rights, and therefore concur with
that part of the court's opinion.
                                                                     4


    In its opinion, the court recognizes that several jury

lists were created in this case:     (1) the "jury [e]mpanelment

sheet" that identifies the jurors who were sent to the court

room for empanelment, and who were sworn, excused, or not

reached; this document was returned to the jury pool office

after the jury were selected; (2) the "Daily Report of Juror

Attendance," which was used by the session clerk to record daily

juror attendance and was returned to the jury pool office each

day; (3) the list prepared by the court officers of the

empanelled jurors' names and telephone numbers, so that they

could be contacted during the course of the trial; this list was

destroyed after trial; and (4) the confidential juror

questionnaires completed by the empanelled jurors, which are not

public records, G. L. c. 234A, § 23, and which "were

appropriately destroyed after the trial."     Ante at note 12.     The

court does not suggest that any of these documents should have

been placed in the court file or that it is the current practice

of all courts to do so.   Rather, the court notes that "there is

inconsistency in the current practice of retaining juror lists"

and that it was "the prior practice" of the Superior Court to

include such a list in the case file.     Ante at    .   The court

then decides to require courts to create a list of jurors' names

and place the list in the court file "no later than at the

completion of the trial."   Id.    I recognize that the court,
                                                                   5


under its superintendence power, has the authority to order

trial courts to create a document and place it in the court

file, where it will then enjoy the presumption of public access

as a court record.   But I question the wisdom of doing so and

fear that we may someday come to regret it.

     The court contends that the creation and filing of a juror

list is required by the "public's long-term interest in

maintaining an open judicial process."   Id. at    .   Our

judicial process, however, is already open.   All trials are

public, and as noted, trial transcripts may be ordered by anyone

willing to pay for them.   Apart from those rare trials where

jurors are selected anonymously, the names of jurors should be

announced on the record as part of a public trial.3

     The court also contends that creating a juror list and

making it part of the court record "promotes confidence in the

judicial system by, among other things, providing an independent

nongovernmental verification of the impartiality of the jury



     3
       I recognize that, as happened here, the names of jurors
sometimes are announced only at sidebar, but, in the absence of
an impoundment order, all that is said at sidebar is part of the
public trial and can be read in the transcript. Where a
transcript is ordered and where that transcript would reveal
intensely personal matters regarding prospective jurors that
were discussed at sidebar during individual voir dire, such as
whether prospective jurors in a sexual assault trial have ever
themselves been victims of a sexual assault, a judge may impound
that personal information for good cause shown. See ante at
note 17.
                                                                    6


process, and educating the public as to their duties and

obligations should they be called for jury service."        Id.

at    .   But this is an unreasonably optimistic expectation of

the consequences of this opinion.     Who are we kidding?     The

press wants the names of jurors so they can interview the jurors

about what was said in the jury room and why they reached the

verdict they did.    The court itself recognizes the dangers

lurking in such an inquiry, noting that it is "not inappropriate

for a trial judge to meet with the jurors postverdict to discuss

the importance of and value in not disclosing what was said by

other jurors in the deliberative process."     Id. at note 18.

     Moreover, where a court record is created naming the

jurors, that court record is available to anyone on request, not

just the press.     Therefore, in the absence of an impoundment

order, anyone interested in or unhappy with the verdict could

obtain the list simply by requesting the court file and, because

it is not difficult these days to find online a person's

address, telephone number, electronic mail (e-mail) address, or

social media page, anyone obtaining this list could attempt to

communicate with the jurors by telephone, letter, e-mail, or

social media.   To be sure, a person already can learn the names

of jurors and attempt to communicate with them about the verdict

without a juror list if the person is willing to sit through

jury empanelment or to order a trial transcript of the
                                                                    7


empanelment, but the court's opinion will make it far easier for

a person to do so.   I do not think it is wise to encourage such

postverdict communications, especially where the jurors will

have no say whether they welcome such communications.

     I also fear that the creation of a juror list to be

included in the case file may, over time, diminish the fairness

and impartiality of jurors.   Jurors are the only persons in this

country that we presently draft into government service.     We ask

them for a few days or a few weeks to put aside their

employment, educational, or family responsibilities, and devote

their full attention to a criminal or civil trial where they

will decide guilt or liability.   We have had few instances in

this Commonwealth where jurors have been threatened or harassed

after their verdict, but many jurors fear the possibility,

especially where they reside in or near the communities of the

litigants or the litigants' families.   By making it easy for

anyone to obtain their names, the risk of such misconduct will

increase, and jurors' fears that their verdict may make them the

target of such misconduct, even if it is only an angry telephone

call or Facebook posting, will increase proportionately.   I

would like to think that jurors will put aside such concerns in
                                                                   8


reaching a verdict, but I worry that this opinion will make it

more difficult for jurors to do so.4

     Where, as here, there was no jury list in the court file,

the burden rested with the Globe to show that such a list should

be created and made part of the court file because it is "so

important to public understanding of the judicial proceeding

that it should be presumed to be public, so that the public may

'assume a significant, positive role in the functioning of the

judicial system.'"   Winfield, 464 Mass. at 681, quoting Boston

Herald, Inc., 432 Mass. at 607.   Here, where the list of jurors

was already publicly available from the trial record, the judge

did not abuse his discretion in determining that whatever public

interest there may be in the Globe speaking to the jurors about

their verdict could be accomplished by providing a list only of

those jurors who were willing to speak to the Globe.   If the

Globe wished to speak to jurors who had no desire to speak with

its reporters, it could have ordered a transcript of the jury

empanelment and obtained their names from the public record.

Neither public understanding of the judicial process nor the

     4
       I recognize that the court's opinion would permit a judge
to impound a juror list where good cause is shown, but the court
made clear that good cause would generally require "a risk of
personal harm to the jurors." Ante at note 17. Thankfully,
there are very few such cases where there is evidence of a "risk
of personal harm" to jurors. But there are many more cases
where there might be a risk that someone may wish to reach out
to a juror in a manner that a juror would find to be
threatening, harassing, or troubling.
                                                                   9


interests of justice are served by requiring the court to create

a list of jurors that includes those who would prefer to be left

alone and to file that list in the court file so that the Globe,

or anyone else, may communicate with them against their wishes

about the verdict they rendered.
