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15-P-348                                                Appeals Court

                      COMMONWEALTH   vs.   JUAN DOE.1


                              No. 15-P-348.

         Middlesex.      October 4, 2016. - December 28, 2016.

                 Present:   Cypher, Cohen, & Green, JJ.


Criminal Records. Criminal Offender Record Information.
     Practice, Criminal, Record, Nolle prosequi.



     Indictment found and returned in the Superior Court
Department on June 10, 2010.

     After the entry of a nolle prosequi, a petition to seal the
record, filed on October 7, 2014, was heard by Kathe M. Tuttman,
J.

     J.W. Carney, Jr., for the defendant.
     Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.


     COHEN, J.     Juan Doe appeals from an order of a judge of the

Superior Court denying his petition to seal his criminal record

in a case terminated by a nolle prosequi.        We infer from the

order that, in balancing the interests of the public and the

     1
       We allowed the defendant's motion to amend the case
caption with a pseudonym.
                                                                   2


defendant, as required by Commonwealth v. Pon, 469 Mass. 296

(2014), the judge may have relied upon a factor that is

inconsistent with Pon's revised standard for discretionary

sealing, and may have placed too much importance on another

factor that was of limited concern in the circumstances.     For

those reasons, and for the additional reason that there has been

a material change in circumstances since the petition was

denied,2 we vacate the order and remand for reconsideration.

     Background.   In June, 2010, Doe was indicted for murder in

the first degree in connection with the death of his six month

old son.   The Commonwealth's theory was that the child had died

as a result of abusive head trauma commonly known as shaken baby

syndrome;3 however, while the case was pending, it was learned

that Doe's wife and her family had a previously unknown history

of collagen vascular disease, a genetic condition that was

relevant to determining the child's cause of death.   This

information was supplied to the prosecution and the medical

     2
       Considerable time has elapsed since the petition was
denied on January 20, 2015. Doe's appeal entered in this court
on March 13, 2015, but was stayed until October 30, 2015, while
a transcript of the motion hearing was prepared. Briefing was
not completed until April 14, 2016. After denial of the
defendant's application for direct appellate review, the case
was argued to a panel of this court on October 4, 2016.
     3
       As noted in two recent opinions of the Supreme Judicial
Court, shaken baby syndrome has been the subject of heated
debate in the medical community. See Commonwealth v. Millien,
474 Mass. 417, 418 (2016); Commonwealth v. Epps, 474 Mass. 743,
744 (2016).
                                                                      3


examiner, who, in August, 2014, revised his ruling on the manner

of death from "homicide" to "could not be determined."    Shortly

thereafter, on September 18, 2014, the Commonwealth filed a

nolle prosequi, stating that it could not "meet its burden of

proving cause of death beyond a reasonable doubt when the

revised ruling is considered in light of all the circumstances

of this case."

     On October 7, 2014, Doe filed a petition, pursuant to G. L.

c. 276, § 100C, as amended through St. 2010, c. 256, §§ 131,

132, requesting discretionary sealing of the case record because

it impaired his ability to obtain employment.   The Commonwealth

opposed the petition, and after a nonevidentiary hearing, the

matter was considered by the judge on affidavits and other

written submissions.   At the hearing, the Commonwealth

emphasized that its argument was "not that [the record] should

never be sealed, but that this is not the right time."    On

January 20, 2015, the judge issued a marginal order stating:

"After non-evidentiary hearing.    Denied, for substantially the

reasons set forth in the Commonwealth's Opposition and the

supporting affidavit of [the assistant district attorney

(ADA)].[4]   See Commonwealth v. Pon, 469 Mass. 296 (2014).    This


     4
       An ADA for the Middlesex District appeared for the
Commonwealth in the trial court. At the close of the hearing on
Doe's petition, the judge asked her to prepare an affidavit
summarizing factual representations that she had made at the
                                                                     4


order is without prejudice to the defendant to renew upon a

showing of changed circumstances."     We reserve additional facts

for later discussion in connection with the issues raised.

       Discussion.   We consider whether the judge abused her

discretion or committed error of law, using as our touchstone

the Supreme Judicial Court decision in Pon, supra.     In Pon, the

court concluded that "the records of closed criminal cases

resulting in . . . dispositions [of dismissal or entry of a

nolle prosequi] are not subject to a First Amendment presumption

of access, and therefore that the sealing of a record under

G. L. c. 276, § 100C, need not survive strict scrutiny."        Id. at

311.    The court therefore replaced the stringent standard set

forth in Commonwealth v. Doe, 420 Mass. 142, 149-152 (1995),

with a new standard more in keeping with the legislative policy

reflected in the 2010 revision of the criminal offender record

information (CORI) statutory scheme.5    That policy is to

"provid[e] the public, and particularly employers and housing

providers, with access to certain criminal records in order to

make sound decisions while also enabling the sealing of criminal

records where so doing would not present public safety

concerns."    Pon, 469 Mass. at 303.



hearing about the relationship of Doe's case to another shaken
baby case then pending in the same court.
     5
       The pertinent statutory revisions are detailed in Pon, 469
Mass. at 303-308.
                                                                     5


    "Under G. L. c. 276, § 100C, second par., an individual may

petition for sealing of a criminal case ending in a dismissal or

entry of a nolle prosequi, as early as the time of the

disposition or at any point thereafter."     Pon, supra at 300-301.

Such relief is warranted if "it appears to the court that

substantial justice would best be served."    Id. at 301, quoting

from G. L. c. 276, § 100C.    As reinterpreted in Pon, the

"substantial justice" standard no longer requires a defendant to

make a "specific showing 'that sealing [is] necessary to

effectuate a compelling governmental interest,'" id. at 302,

quoting from Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 511

(1st Cir. 1989); the standard is met if "good cause justifies

the overriding of the general principle of publicity," Pon,

supra at 313.    In assessing whether a defendant has established

good cause, the judge must balance the public interests at stake

against the interests favoring privacy.    Id. at 315.   If, after

balancing those interests, the judge determines that the

defendant has overcome the common-law presumption of public

access, the substantial justice standard will be satisfied.       Id.

at 314.

    "Judges should begin by recognizing the public interests at

stake.    The public has a general right to know so that it may

hold the government accountable for the proper administration of

justice. . . .   [E]ven [where] a case has not been prosecuted,
                                                                   6


information within a criminal record may remain useful to the

public."   Id. at 315 (quotation omitted).   "Next, judges . . .

must recognize the interests of the defendant and of the

Commonwealth[6] in keeping the information private.   These

interests include the compelling governmental interests in

reducing recidivism, facilitating reintegration, and ensuring

self-sufficiency by promoting employment and housing

opportunities for former criminal defendants."    Ibid.

     While "judges may consider any relevant information in

weighing the interests at stake, . . . [a]t a minimum, judges

should evaluate the particular disadvantages identified by the

defendant arising from the availability of the criminal record;

evidence of rehabilitation suggesting that the defendant could

overcome these disadvantages if the record were sealed; any

other evidence that sealing would alleviate the identified

disadvantages; relevant circumstances of the defendant at the

time of the offense that suggest a likelihood of recidivism or

of success; the passage of time since the offense and since the

dismissal or nolle prosequi; and the nature of and reasons for

the particular disposition."   Id. at 316.

     In the present case, because the judge's decision was for

the reasons argued by the Commonwealth, but without prejudice to

     6
       In context, the reference to the "Commonwealth" in this
sentence refers broadly to State government and the populace,
and not simply to the prosecution.
                                                                   7


renewal, we may infer that the balancing process was influenced

by one or both of two arguments rooted in circumstances that

could change over time:   first, that Doe had not applied for

work since the nolle prosequi and, hence, could not demonstrate

that his record had disadvantaged him in obtaining employment;

and second, that it was too early to terminate the public's

access to Doe's court records, because defense counsel in

another shaken baby syndrome case pending in the same county was

expected to use evidence in Doe's case to impeach the

credibility of an expert witness common to both cases.    We

address each of these reasons in turn.

    1.   Disadvantage in obtaining employment.   As explained in

Pon, 469 Mass. at 316, a defendant seeking to seal his record

"need not establish a risk of specific harm, [so long as] he

. . . allege[s] with sufficient particularity and credibility

some disadvantage stemming from CORI availability that exists at

the time of the petition or is likely to exist in the

foreseeable future."   "This can include, but is not limited to,

a risk of unemployment [or] underemployment" (emphasis added).

Id. at 316-317.   Far from requiring proof of unsuccessful job

efforts, Pon instructs that "judges may take judicial notice of

the well-known consequences for employment . . . from the

existence of a criminal record."   Id. at 317.   Indeed, if a

defendant first had to show that he had applied for work and was
                                                                   8


rejected because of his criminal record, the benefits of sealing

could well be lost.

    In Doe's petition and accompanying affidavits, he indicated

that he had spent the time since his child's death volunteering

at his church and seeing to his wife's medical needs; he further

alleged with particularity why he did not seek work before he

filed his petition.   A well-educated professional, Doe had a

promising career at a university before his son's death; but,

once his employer became aware of the charges against him, he

was placed on leave and eventually terminated.   After the nolle

prosequi, he refrained from searching for a job because he

thought it highly likely that any comparable position would

require a CORI check, which would reveal that he had been

charged with murder and that his case was terminated by means of

a nolle prosequi.

    Doe asserted that "nolle prosequi" is an obscure term that

most likely would not be understood by an employer, and that the

severity of the underlying murder charge would thwart his

chances for consideration.   He asserted further that, once

obtained, his CORI record forever would remain in the files of

any employment agency or recruiter he might approach.   Doe

expressed his belief that, in this respect, a CORI check

presents a far more potent disadvantage to him than a general

Internet search, which would reveal in plain terms that the
                                                                     9


Commonwealth dismissed the case because it could not prove that

any crime had been committed.

    Doe's explanation was more than sufficient to be considered

on its merits and, if credited, strongly weighed in favor of

prompt sealing.   To the extent that the judge's decision adopted

the Commonwealth's argument that Doe could not demonstrate

disadvantage in obtaining employment unless and until he

actually tried and failed to secure a job, it was inconsistent

with the revised standard for sealing set forth in Pon, and

constituted an error of law.

    2.   Pending shaken baby syndrome case.     Nothing in Pon

suggests that the mere existence of a pending similar case is a

justification for denying a petition to seal.    To the contrary,

the considerations identified in Pon are particularized to the

defendant seeking to seal his record.   That said, we acknowledge

that the argument advanced by the Commonwealth, and apparently

adopted by the judge, was more subtle; the Commonwealth

contended that defense counsel in another shaken baby case,

which was very much in the public eye, intended to use the facts

in Doe's case to impeach a Commonwealth witness and, therefore,

it was too soon to deny the public (and, especially, the media)

access to records from Doe's case.

    The factual basis for this argument is set out in the ADA's

affidavit relied upon by the judge in her order.    When Doe filed
                                                                     10


his petition, a very high profile shaken baby syndrome case was

pending in the same county and scheduled for trial in April,

2015.    Defense counsel in that case had moved for discovery of a

substantial amount of information about Doe's case, contending

that it was potentially exculpatory.     A hearing was held on the

motion, at which Doe's counsel appeared and assented to the

release of Doe's records so long as a protective order was

imposed.     The judge agreed with this course of action, entered a

protective order, and directed the Commonwealth to provide

records from Doe's case to the attorneys representing the other

defendant.    Among other things, the protective order required

the Commonwealth and the other defendant to use pseudonyms when

referring to Doe, his child, or any other biographical or

personal information about the case.7

     In both the Doe case and the other case, Dr. Alice Newton

of Children's Hospital was an expert for the Commonwealth,8 and,

in both cases, it was her opinion that the child in question had

died as a result of shaken baby syndrome.     In light of the

revised ruling of the medical examiner, and the filing of the


     7
       The protective order also restricted access to the
documents to the members of the other defendant's defense team
and required advance judicial approval for the Commonwealth or
the other defendant to make reference to or comment upon the
content of any of the documents in court or in a court pleading.
     8
       Dr. Newton has "written extensively on shaken baby
syndrome." Commonwealth v. Millien, 474 Mass. at 423.
                                                                  11


nolle prosequi in the Doe case, defense counsel in the other

case was expected to use the Doe case to impeach Dr. Newton and

suggest that she was prone to "rush to judgment."     This strategy

had not escaped the attention of the press.   Media

representatives were present at the hearing on the other

defendant's discovery motion, and articles were published about

how the other defendant might take advantage of the developments

in the Doe case.

    Whether, as the Commonwealth argued, the continued public

interest in the Doe case that was being generated by the other

case militated in favor of maintaining public access to Doe's

file is a close question.   On the one hand, the Commonwealth's

decision to file a nolle prosequi in Doe's case while proceeding

to trial on the other case plainly implicated the public's

"general right to know so that it may hold the government

accountable for the proper administration of justice."     Pon, 469

Mass. at 315.   On the other hand, Doe's case was receiving

continued public attention only in juxtaposition to the other

case, and it had been arranged that, in the context of the

upcoming trial, the public would have the opportunity to hear

the evidence and arguments as to whether the facts in the two

cases were analogous or distinguishable, without revealing Doe's

identity.
                                                                 12


     In these circumstances, we conclude that the judge may have

placed too much weight on the pendency of the other case in

denying Doe's petition.   Regardless, however, later developments

have made the issue largely academic.   In the intervening period

between the judge's order and the briefing of this case, the

Commonwealth filed a nolle prosequi in the other case, as well.9

The unusually high degree of public interest in that case, which

brought attention to the Doe case, no longer stands in the way

of sealing Doe's record.10

     Conclusion.   We vacate the order of January 20, 2015,

denying Doe's petition to seal his criminal record, and remand

for further proceedings consistent with this opinion.

                                    So ordered.




     9
       Both Doe and the Commonwealth have called our attention to
this fact, and we have been invited to take judicial notice of
the status of the other case, which was resolved in September,
2015.
     10
       Because of representations made by the Commonwealth at
oral argument, we find it necessary to caution that,
particularly in light of the passage of time, it would be
contrary to the objectives of Pon if Doe's petition were held
hostage because public interest in his case might be rekindled
by other shaken baby cases involving Dr. Newton or otherwise.
Furthermore, if there is ever a need to refer to the
circumstances of the Doe case in the prosecution or defense of
any pending or future case of this nature, a protective order
like the one previously negotiated can and should be used.
