Record and brief — Globe Newspaper Co. v. Superior Court, County of Norfolk

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SEP 28 198)

In the ates

Supreme Court of the United States.

Ocroser Term, 1981.

No.

GLOBE NEWSPAPER COMPANY,

APPELLANT,

THE SUPERIOR COURT FOR THE COUNTY

OF NORFOLK,

APPELLEE.

ON APPEAL FROM THE SUPREME JUDICIAL COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS.

Jurisdictional Statement.

James F. McHucu

Rosert Haypock, Jr.

Marc A. REARDON

BincHAM, Dana & GouLp

100 Federal Street

Boston, Massachusetts 02110

(617) 357-9300

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Question Presented.

Whether the First, Sixth and Fourteenth Amendments to

the Constitution of the United States render Massachusetts

General Laws c. 278, § 16A void as construed by the Supreme

Judicial Court to require exclusion of the press and the public

from portions of all trials of certain crimes even over the oppo-

sition of the defendant and even in the absence of a request by

the prosecution or the victim for such exclusion.

Table of Contents.

Opinions below

Jurisdiction

Statute involved

Statement of the case

Raising the federal question

I. Massachusetts General Laws c. 278, § 16A as

construed by the Supreme Judicial Court violates

the First Amendment to the Constitution of the

United States as applied to the states through the

Fourteenth Amendment

A. The First Amendment right to attend criminal

trials requires that such trials be open in their

entirety unless closure, in whole or in part, rep-

resents the least drastic means for achieving an

overriding governmental interest

B. The interests identified by the Supreme Judi-

cial Court are insufficient to require closure of

all testimony of all victims at all trials compre-

hended by Massachusetts General Laws c. 278,

§ 16A

C. In order to ensure that an order closing a crim-

inal trial, in whole or in part, is the least drastic

means for achieving an overriding governmen-

tal interest, a hearing prior to closure is necessary

II. Massachusetts General Laws c. 278, § 16A vio-

lates appellant’s rights under the Sixth Amend-

ment to the Constitution of the United States

Conclusion

Appendix

Petition for extraordinary relief pursuant to Massa-

chusetts General Laws chapter 211, section 3

Ooowownw bd

ii TABLE OF AUTHORITIES CITED.

Exhibit A — motion to revoke orders concerning ex-

clusion of the press 5a

Exhibit B — motion for hearing 6a

Exhibit C — motion to intervene 7a

Exhibit D — transcript of hearing on motions 8a

Order 22a

Judgment 23a

Opinion of the Supreme Judicial Court for the Com-

monwealth of Massachusetts in Globe I 25a

Remand order of the Supreme Court 54a

Opinion of the Supreme Judicial Court for the Com-

monwealtb of Massachusetts in Globe II 57a

Notices of appeal to the Supreme Court of the United

States 75a

Table of Authorities Cited.

CASEs.

Ashland Publishing Co. v. Asbury, 612 S.W.2d 749

(Ky. App. 1980) 25

Barrows v. Jackson, 346 U.S. 249 (1953) 29

Branzburg v. Hayes, 408 U.S. 665 (1972) 13

Brown v. Board of Education, 347 U.S. 483 (1954) 15

Butler v. Michigan, 352 U.S. 380 (1957) 16n, 21

Carey v. Population Services International, 431 U.S.

678 (1977) 29

Carroll v. President & Comm'rs of Princess Anne, 393

U.S. 175 (1968) 26

TABLE OF AUTHORITIES CITED. iii

Commonwealth v. Aladjem, Norfolk Superior Court

Criminal No. 73102-9 3,6

Commonwealth v. Joyce, Mass. Adv. Sh. (1981) 39,

N.E.2d 21

Commonwealth v. Marshall, 356 Mass. 432, 253

N.E.2d 333 (1969) 19

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) 22

Davis v. Alaska, 415 U.S. 308 (1974) 21

Detroit Free Press v. Recorder’s Court Judge, 409

Mich. 364, 294 N.W.2d 827 (1980) 25

Dougias v. State, 328 So.2d 18 (Fla.), cert. denied, 429

U.S. 871 (1976) 16n

Eisenstadt v. Baird, 405 U.S. 438 (1972) 29

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)

14, 19, 23

First National Bank of Boston v. Bellotti, 435 U.S. 765

(1978) 20, 25

Gannett Co. v. DePasquale, 443 U.S. 368 (1979)

13, 15, 16n, 24, 27 et seq.

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) 17

Gilmore v. Utah, 429 U.S. 1012 (1976) 29n

Globe Newspaper Co. v. Superior Court, Mass. Adv.

Sh. (1980) 485, 401 N.E.2d 360, 101 S.Ct. 259

(1980), Mass. Adv. Sh. (1981) 1493, N.E.2d

6, 7, 1ln, 14, 16 et seq.

Gooding v. Wilson, 405 U.S. 518 (1972) 14

Griswold v. Connecticut, 381 U.S. 479 (1965) 18, 29

Herald Ass'n, Inc. v. Ellison, 138 Vt. 529, 419 A.2d 323

(1980) 25

In re Oliver, 333 U.S. 257 (1948) 23

iv TABLE OF AUTHORITIES CITED.

In re United States ex rel. Pulitzer Publishing Co. , 635

F.2d 676 (8th Cir. 1980) 25

In re Winship, 397 U.S. 358 (1970) 21

Lexington Herald Leader Co. v. Tackett, 601 S.W.2d

905 (Ky. 1980) 19

Linmark Associates, Inc. v. Willingboro, 431 U.S. 85

(1977) 14, 19

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) 15

Miller v. California, 413 U.S. 15 (1973) 18n

NAACP v. Alabama ex rel. Flowers, 377 U.S. 288

(1964) 14, 24

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

(1958) 14

NAACP v. Button, 371 U.S. 415 (1963) 14

Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) 30

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ll

Oklahoma Publishing Co. v. District Court of Oklaho-

ma County, 430 U.S. 308 (1977) 30

Patuxent Publishing Corp. v. State, 48 Md. App. 689,

429 A.2d 554 (1981) 25

Price v. State, 496 S.W.2d 103 (Tex. Crim. App. 1973) = 16n

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

(1980) 6, 7, 8, 9, 10 et seq.

Schaumburg v. Citizens for Better Environ., 444 U.S.

620 (1980) 14

Shelton v. Tucker, 364 U.S. 479 (1960) 14, 24

Singleton v. Wulff, 428 U.S. 106 (1976) 29, 30

Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) 22, 30

Speiser v. Randall, 357 U.S. 513 (1958) 1]

TABLE OF AUTHORITIES CITED. Vv

Stanley v. Georgia, 394 U.S. 557 (1969) 18

State v. Green, 395 So. 2d 532 (Fla. 1981) 25

State v. Schmit, 273 Minn. 78, 139 N.W.2d 800 (1966) 19

State v. Sheppard, 42 C.L.J. 23 (Conn. 1980) 19, 25

State v. Sinclair, 274 S.E.2d 411 (S.C. 1981) 25

State v. Wahle, 298 N.W.2d 795 (S.D. 1980) 25

Thornhill v. Alabama, 310 U.S. 88 (1940) 17

Tinker v. Des Moines independent Community School

Dist., 393 U.S. 503 (1969) 23

United States v. Edwards, A.2d_—, Nos. 294 and

401 (D.C. May 8, 1981) 25

United States ex rel. Latimore v. Sielaff, 561 F.2d 691

(7th Cir. 1977), cert. denied, 434 U.S. 1076 (1978) 16n

CONSTITUTIONAL PROVISIONS.

United States Constitution

Bill of Rights 30

First Amendment passim

Sixth Amendment passim

Fourteenth Amendment passim

STATUTES.

Alabama Code § 12-21-202 (1975) 17n

Massachusetts General Laws

c. 210

§ 5C 2in

§ 6 2in

§7 21n

§ 8 2in

vi TABLE OF AUTHORITIES CITED.

ce. 211,§3

c. 220, § 13A

c. 278, § 16A

New York Jud. Law § 4 (McKinney 1975)

North Carolina Gen. Stat. § 15-166 (1975)

Vermont Stat., tit. 12, § 1901

Virginia Code § 19.2-266

MISCELLANEOUS.

Bickel, The Least Dangerous Branch, 108 (Bobbs-

Merrill, 1962)

Note, The First Amendment Overbreadth Doctrine, 83

Harv. L. Rev. 844 (1970)

Schauer, Fear, Risk and the First Amendment: Unrav-

eling the “Chilling Effect,” 58 B.U. L. Rev. 685

(1978)

In the

Supreme Court of the United States.

Ocroser Term, 1981.

No.

GLOBE NEWSPAPER COMPANY,

APPELLANT,

THE SUPERIOR COURT FOR THE COUNTY

OF NORFOLK,

APPELLEE.

ON APPEAL FROM THE SUPREME JUDICIAL COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS.

Jurisdictional Statement.

Globe Newspaper Company appeals from the final judg-

ment of the Supreme Judicial Court for the Commonwealth of

Massachusetts dated June 30, 1981. In the opinion accompa-

nying that judgment, the Supreme Judicial Court, pursuant to

the order of this Court entered October 14, 1980, reconsidered

an opinion it had rendered in this case on February 24, 1980,

and concluded again that Massachusetts General Laws c. 278,

§ 16A requires exclusion of the press and the public from por-

tions of all trials of certain crimes.

Opinions Below.

The opinion of the Supreme Judicial Court for the Com-

monwealth of Massachusetts from which this appeal is taken

appears in the appendix hereto, pages 57a-74a, infra, and is

reported at Mass. Adv. Sh. (1981) 1493, N.E.2d . The

Supreme Judicial Court's original opinion appears in the ap-

pendix hereto, pages 25a-53a, infra, and is reported at Mass.

Adv. Sh. (1980) 485, 401 N.E.2d 360.

The order of this Court vacating the original judgment of

the Supreme Judicial Court and remanding the case for fur-

ther consideration appears in the appendix hereto, pages 54a-

56a, infra, and is reported at 101 S.Ct. 259 (Oct. 14, 1980).

The decisions of the single justice of the Supreme Judicial

Court for the County of Suffolk and of the trial judge of the

Superior Court for the County of Norfolk were oral and unre-

ported. Copies of portions of the transcripts of the hearings

held before said courts at which the oral decisions were an-

nounced are included in the appendix hereto, pages 8a-lla

and 12a-2la, infra.

Jurisdiction.

This is an appeal from a final judgment of the Supreme

Judicial Court for the Commonwealth of Massachusetts en-

tered June 30, 1981. In its decision, the court held that

M.G.L. c. 278, § 16A requires a trial judge to exclude the

press and public from the trial of certain crimes when the

minor victims of those crimes are testifying.

A notice of appeal to this Court from that judgment was

timely filed with the clerks of the Superior Court for the Coun-

ty of Norfolk, the Supreme Judicial Court for the County of

Suffolk, and the Supreme Judicial Court for the Common-

wealth of Massachusetts on September 22, 1981 (App. 75a-

80a). This appeal is being docketed in this Court within 90

. days from June 30, 1981, the date of entry of the final judg-

ment of the Supreme Judicial Court.

Statute Involved.

The text of M.G.L. c. 278, § 16A is as follows:

At the trial of a complaint or indictment for rape, in-

cest, carnal abuse or other crime involving sex, where a

minor under eighteen years of age is the person upon,

with or against whom the crime is alleged to have been

committed, or at the trial of a complaint or indictment

for getting a woman with child out of wedlock, or for the

non-support of an illegitimate child, the presiding justice

shall exclude the general public from the court room, ad-

mitting only such persons as may have a direct interest in

the case.

Statement of the Case.

On or about April 19, 1979, the Superior Court for the

County of Norfolk, Massachusetts commenced hearings with

respect to pretrial motions in a criminal case styled Common-

wealth v. Aladjem, Norfolk Superior Court Criminal No.

73102-9. At that time, the trial judge caused a sign reading

“Closed” to be placed on the courtroom door. All persons ap-

proaching the courtroom doors were told by courtroom per-

sonnel that they could not enter (App. 27a).

On April 25, 1979, prior to commencement of that day’s

proceedings and the trial itself, counsel to Globe Newspaper

Company (the “Globe”) filed with the clerk three motions: (1)

a motion to revoke orders concerning exclusion of the press

from pretrial’ or trial proceedings in the case (App. 5a); (2) a

motion for a hearing with respect to any orders excluding the

press from pretrial or trial proceedings (App. 6a); and (3) a

motion to intervene for the limited purpose of asserting the

right of the press to attend the pretrial and trial proceedings

(App. 7a).

' This appeal is limited to the order entered by the trial court on April 25,

1979, which excluded the public and the press from the trial itself. No pre-

trial issues are presented.

The trial judge opened the proceedings that day by identify-

ing the three motions filed by the Globe. Then, immediately

after the prosecutor stated the age and sex of the victims and

the fact that rape was the crime involved, the trial judge orally

issued the following two rulings:

This Court rules that the Motion to Intervene may not

be filed. ... This Court further rules that, consistent

with General Laws Chapter 278 Section 16A, this trial

will be conducted in such a manner that the general pub-

lic shall be excluded from the courtroom, including the

press, and that only such persons as may have a direct in-

terest in the case will be permitted in the courtroom.

[App. 10a].

At that point, counsel to Mr. Aladjem, the defendant in the

case, noted his exception to the court’s ruling excluding the

general public and the press (App. lla). The prosecutor then

stated that the Commonwealth had not requested the exclu-

sionary order (App. lla). Thereafter, the trial judge said that

the pretrial proceeding scheduled for that day would continue

and that the courtroom should be cleared (App. 11a).

On April 25, 1979, the day that the closure order was en-

tered, the Globe filed a petition for extraordinary relief pursu-

ant to M.G.L. c. 211, § 3,* in the Supreme Judicial Court for

* Filing such a petition constitutes commencement of a new, and not an ap-

pellate, proceeding over which the Supreme Judicial Court has exclusive

original jurisdiction. Massachusetts General Laws c. 211, § 3 provides:

The supreme judicial court shall have general superintendence of all

courts of inferior jurisdiction to correct and prevent errors and abuses

therein if no other remedy is expressly provided; and it may issue all

writs and processes to such courts and to corporations and individuals

which may be necessary to the furtherance of justice and to the regular

execution of the laws.

In addition to the foregoing, the justices of the supreme judicial

court shall also have general superintendence of the administration of

all courts of inferior jurisdiction, including, without limitation, the

prompt hearing and disposition of matters pending therein, and the

functions set forth in section three C; and it may issue such writs, sum-

monses and other processes and such orders, directions and rules as

the County of Suffolk, contesting the legality and constitu-

tionality of the closure order entered pursuant to M.G.L.

c. 278, § 16A by the trial court and the procedure pursuant to

which the trial court had entered that order. The immediate

relief sought by the petition was an injunction which, in ef-

fect, would have reversed the closure order and permitted

members of the press to attend the criminal trial then about to

commence (App. la-4a).

A hearing on the petition was held before a single justice of

the Supreme Judicial Court for the County of Suffolk on the

following day, April 26, 1979. At the hearing, the district at-

torney responsible for prosecuting the criminal case represent-

ed ‘o the single justice that the prosecuting attorney had dis-

cussed the closure order with the victims and that, on behalf of

the victims, the district attorney was waiving whatever rights

the Commonwealth might have had under § 16A to seek to ex-

clude the press from the trial (App. 15a-16a).

The single justice, while observing that the procedures util-

ized by the Globe in the trial court “adequately raised the

question whether the Globe has any right to have the trial

public” (App. 14a), denied the petition. He ruled orally that

M.G.L. c. 278, § 16A was “mandatory in its terms”

(App. 19a), and that even if not “utterly mandatory”

(App. 19a), there had been no showing that the trial court had

abused its discretion in closing the trial. He then ruied that

the Globe had no First-Amendment right to attend the trial

and had no standing to raise any Sixth-Amendment conten-

tions (App. 20a-2la). A written order denying the Globe’s

petition was entered later the same day (App. 22a),° and final

may be necessary or desirable for the furtherance of justice, the regular

execution of the laws, the improvement of the administration of such

courts, and the securing of their proper and efficient administration.

Nothing herein contained shall affect existing law governing the selec-

tion of officers of the couris, or limit the existing authority of the of-

ficers thereof to appoint administrative personnel.

> The record contains the transcript of a brief lobby conference which took

place on April 30, 1979, four days later. At the conference, attended by

counsel for the parties to the criminal trial and the trial judge, the prosecut-

judgment dismissing the petition was entered eleven days later

on May 7, 1979 (App. 23a).

Following entry of the single justice’s order of April 26,

1979 denying the petition, impanelment of the jury in the

underlying criminal action, Commonwealth v. Aladjem,

began and that case was tried. On May 10, 1979, Mr. Alad-

jem was found not guilty (App. 28a). The trial was closed to

the press and public throughout its course (App. 25a).

On May 17, 1979, the Globe filed its notice of appeal to the

Supreme Judicial Court for the Commonwealth of Massachu-

setts from the May 7 judgment dismissing its petition. On

February 26, 1980, the Supreme Judicial Court rendered its

judgment. Globe Newspaper Co. v. Superior Court, Mass.

Adv. Sh. (1980) 485, 401 N.E.2d 360 (hereinafter referred to

as “Globe I’).

In its opinion, the Supreme Judicial Court held that the is-

sues raised before the single justice were moot, but that they

were “significant and troublesome, and. . . ‘capable of repeti-

tion yet evading review’” (App. 26a). Thus, while dismissing

the Globe's appeal on grounds of mootness, the Supreme Judi-

cial Court deemed it appropriate to express its views on the

issues the appeal raised (App. 26a).

The court did not, however, address the constitutional

claims raised by the Globe. Although it acknowledged that

such issues had been raised, it decided to await this Court's

decision in Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555 (1980), for their resolution. Proceeding solely on the basis

of statutory construction, the court ruled that § 16A required

exclusion of the press and public from trials of certain crimes

while the minor victims of these crimes were testifying

ing attorney said that she had spoken to the victims again and that they had

told her that they had no objection to the presence of the press at the trial if

the press would agree not to print their names, their photographs, where

they went to school or other personal data about them. No action was taken

with respect to the prosecuting attorney's comments, no examination of the

victims with respect to their views thereafter was undertaken by anyone, and

the trial proceeded in accordance with the trial court's earlier order of clos-

ure. As will be seen, the concerns voiced by the victims on April 30 were

concerns with which § 16A was not equipped to deal.

(App. 42a). It also ruled that the statute granted to the trial

court discretion to exclude the press and the public from the

entire trial of such crimes if exclusion was “necessary . . . to

preserve evidence required for a just conviction” (App. 44a).

On May 4, 1980, the Globe filed a notice of appeal to this

Court from the judgment of the Supreme Judicial Court just

described. Within two months thereafter, this Court

rendered its opinion in Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555 (1980), holding that the First Amend-

ment to the Constitution of the United States guarantees the

right of the public to attend criminal trials. Three months

later, on October 14, 1980, this Court entered an order vacat-

ing the Supreme Judicial Court’s judgment of February 26,

1980 and remanding the case for further consideration in light

of Richmond Newspapers. 101 S.Ct. 259 (1980) (App. 54a).

The judgment of the Supreme Judicial Court on remand was

entered on June 30, 1981. Globe Newspaper Co. v. Superior

Court, Mass. Adv. Sh. (1981) 1493, N.E.2d (hereinaf-

ter referred to as “Globe IT’). In light of this Court’s remand

order and the considerations regarding mootness expressed in

Globe I, the Supreme Judicial Court held that the case was not

moot as to First-Amendment issues raised by the Globe, thus

reversing the conclusion it had reached in Globe I (App. 6la

n.5). It also held, however, that this Court’s remand order did

not require consideration of the claim raised by the Globe under

the Sixth Amendment. As a result, the court simply reiterated

the conclusion expressed in Globe I, that the Globe had no

standing to assert any such claim (App. 6la n.5).

The court then held that § 16A in its mandatory aspect did

not violate the Globe's First-Amendment rights as those rights

were articulated by this Court in Richmond Newspapers

(App. 72a). The court’s decision was based in large part on

what it said were the state interests underlying a “notable ex-

ception” to the unbroken historical tradition of openness of

criminal trials. That exception, in the court’s view, concerned

cases involving sexual assaults, particularly those involving

minor victims. The relevant state interests were those identi-

fied in Globe I, i.e., sparing minor victims the embarrassment

of public testimony and promoting the “sound and orderly ad-

ministration of justice” by encouraging minor victims of sexual

assaults to come forward and give credible testimony

(App. 68a). The court also held that, even though § 16A might

appear designed to protect the minor victims of certain assaults,

a minor victim who desired to testify in open court could not

“waive” the statute’s provisions, and thus that a trial the statute

governed must proceed behind closed doors while the victim

was testifying even if the victim objected (App. 69a n.15). Be-

cause the statute said nothing about public release of transcripts

of the victim's testimony, however, the court left that to the

“sound discretion of the trial judge” exercised in accordance with

Globe I, Globe II and Richmond Newspapers (App. 68a n.14).

With respect to closure of portions of trials other than those

during which minor victims were testifying, the court revised

the standard announced in Globe I for determining whether

closure was appropriate. Stating that after Richmond News-

papers, a trial judge was “obliged to recognize the constitu-

tional right of the press and public to attend trials,” the court

held simply that the justification for any such closure “must

comply with the standards of Richmond Newspapers”

(App. 72a). The court specifically declined to articulate fur-

ther the standard for discretionary closure to be applied by the

trial judge under § 16A (App. 72a).‘

Justice Wilkins, one of the five members of the panel which

heard the case on remand, concurred specially for the purpose of

stating his doubts that, in its mandatory aspect, § 16A was con-

stitutional. Observing that the applicability of imputed legisla-

tive findings supporting § 16A was not assured in each case, and

using the example of the minor victim who wanted the public to

know precisely what a heinous crime the defendant had commit-

ted, Justice Wilkins would have construed § 16A as entirely per-

missive and would have required specific findings before closure,

in whole or in part, was ordered in any case (App. 74a).

* The reluctance of the court to articulate standards to inform the trial court's

exercise of discretion with respect to closure was perhaps based on its professed

inability to find in Richmond Newspapers a constitutionally required standard

for permissible closure which commanded majority support. See App. 62a n.8.

Raising the Federal Question.

At the earliest possible stage in the relevant proceedings, the

Globe raised the claim that M.G.L. c. 278, § 16A violated the

First and Sixth Amendments to the Constitution of the United

States. In the petition filed by the Globe with the Supreme

Judicial Court for Suffolk County on the day of the trial court’s

closure order — the petition which commenced the action on

which this appeal is based — the Globe asserted that the order

excluding the press from the trial was in “violation of the First

Amendment to the Constitution of the United States”

(App. 3a, J 9), and “in violation of the Sixth Amendment to

the Constitution” (App. 3a, § 10). At the hearing before the

single justice the following day, the Globe argued that the stat-

ute itself, if construed to require exclusion from the trial, vio-

lated both the First and Sixth Amendments (App. 14a).

The same federal constitutional claims were reiterated by

the Globe before the Supreme Judicial Court for the Common-

wealth during the proceedings leading up to that court’s deci-

sions in both Globe I and Globe II and in its prior appeal to

this Court. In both Globe I and Globe II, the Supreme Judi-

cial Court, by requiring the exclusion of the press and public

from portions of certain criminal trials, denied the Globe's

federal constitutional claims. In Giobe I, the Globe's claims

were effectively denied by the court’s failure to reach the fed-

eral constitutional questions. In Globe II, the Globe’s federal

constitutional claims were denied expressly on the basis of the

court’s interpretation of Richmond Newspapers. It is review

of that denial which is here sought.

The Question is Substantial.

The question presented by this appeal requires the attention

of this Court in order to ensure that rights guaranteed by the

First, Sixth and Fourteenth Amendments to the Constitution

are not compromised by failure to comply with the principles

of law this Court announced in Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555 (1980). Moreover, the issue which this

appeal presents is novel and has not been squarely presented to

this Court before. The Virginia statute involved in Richmond

Newspapers provided the trial judge with discretion to deter-

mine whether a trial should be closed. There was no manda-

tory provision in the statute and, in fact, its very language

recognized the countervailing interest in public trials. The

Massachusetts statute at issue here, as construed by the Su-

preme Judicial Court, does contain a mandatory provision, a

provision which absolutely forecloses any consideration by the

trial court of the rights of the press and the public, the defend-

ant or the minor victim in the context of a particular factual

situation presented. It even requires closure in the face of

opposition to closure by the victim, the presumed beneficiary

of the statute’s design. In both of these respects, the statute

appears to stand alone amidst the plethora of discretionary

state statutes dealing with the same subject.®

Beyond that, since this Court’s decision in Richmond News-

papers, trial-closure orders have been reviewed by numerous

state and federal appellate courts in light of the standards set

forth in Richmond Newspapers. With the exception of the Su-

preme Judicial Court, those courts have reached the unani-

mous conclusion that Richmond Newspapers mandates a pre-

cise inquiry, on a case-by-case basis, into the existence and

intensity of interests underlying a closure request as well as a

canvass of alternatives less burdensome on First-Amendment

rights than closure itself. A number of those decisions have

voiced that conclusion in the context of trials of crimes involv-

ing sexual assaults on, or physical abuse of, minors. The inter-

pretation of M.G.L. c. 278, § 16A in Globe II, which requires

the trial judge to close portions of certain trials, does not per-

mit that precise and focused inquiry and never permits explor-

ation or utilization of less burdensome alternatives which may

in fact exist.

Finally, the expressed uncertainty of the Supreme Judicial

Court as to the “binding rule of law” established in Richmond

See discussion at p. 16, infra.

® See cases cited at p. 25, infra.

Newspapers (App. 62a n.§) enhances the substantial nature of

the federal question presented here.” By its own analysis, the

court’s conclusions required it to give this Court’s opinion in

Richmond Newspapers a “close reading” (App. 6la). The

court also found “some difficulty in determining the binding

rule of law in a decision which lacks reasoning to which a ma-

jority of the Court has agreed” (App. 62a n.8). In his concur-

ring opinion, Justice Wilkins expressed the view that the

Supreme Judicial Court had “no guidance yet on whether the

mandatory closing of all criminal trials during the testimony of

minor victims of sex crimes is permissible under the First

Amendment” (App. 73a). The degree of uncertainty ex-

pressed by the Supreme Judicial Court, however warranted,

see Richmond Newspapers at 603 (Blackmun, J., concurring),

is troublesome precisely because it is uncertainty over the pa-

rameters of an important constitutional right. To the extent

that that uncertainty gives rise to the likelihood of erroneous

decisions in future cases, its very existence is inconsistent with

the First Amendment itself. See generally Speiser v. Randall,

357 U.S. 513, 525-26 (1958); New York Times Co. v. Sullivan,

376 U.S. 254, 279 (1964); Schauer, Fear, Risk and the First

Amendment: Unraveling the “Chilling Effect,” 58 B.U. L.

Rev. 685, 701-05 (1978).

7The Supreme Judicial Court's stated uncertainty with regard to the

meaning of Richmond Newspapers takes on added significance because the

court in Globe II directed trial courts to follow the standards established in

Richmond Newspapers in determining whether to close trials under § 16A at

times other than when the victim was testifying. The court's expressed un-

certainty over the “binding rule of law” emanating from Richmond News-

papers thus is likely to have an impact on its supervision of the discretionary

aspect of § 16A.

I. Massacuusetts GENERAL Laws c. 278, § 16A as CoNSTRUED

BY THE SUPREME JUDICIAL Court VIOLATES THE First AMEND-

MENT TO THE CONSTITUTION OF THE UNITED STATES AS APPLIED

TO THE STATES THROUGH THE FOURTEENTH AMENDMENT.

A. The First Amendment Right to Attend Criminal Trials

Requires that Such Trials be Open in Their Entirety Un

less Closure, in Whole or in Part, Represents the Least

Drastic Means for Achieving an Overriding Govern-

mental Interest.

This Court’s recent decision in Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555 (1980), made explicit for the first time

that the First Amendment, as applied to the states through the

Fourteenth Amendment, embodies a right on the part of the

press and the public to attend criminal trials. Richmond News-

papers involved the fourth trial of a criminal defendant on

murder charges stemming from the 1975 stabbing death of a

hotel manager. Before the trial began, counsel for the defend-

ant moved that it be closed to the public. The prosecution did

not object and the trial judge, exercising the discretion he

thought was conferred upon him by Virginia Code § 19.2-266,

ordered the courtroom closed to all parties except witnesses dur-

ing the course of their testimony. Appellant Richmond News-

papers moved to vacate the closure order and that motion was

denied in a closed hearing. The trial of the criminal case pro-

ceeded in a closed courtroom until the trial judge entered a

finding of “Not Guilty” at the conclusion of the prosecution's

case. Thereafter, the newspaper filed petitions for writs of

mandamus and prohibition and an appeal from the trial court’s

closure order, all of which were denied by the Virginia Supreme

Court. The newspaper then filed an appeal with this Court.

In what was described by Justice Stevens as a “watershed

case,” this Court reversed the judgment of the Virginia Su-

preme Court. Although no single opinion was adopted by a

majority of the Court, the basic theme to which all but one of

the members of this Court subscribed was that

the right to attend criminal trials is implicit in the guar-

antees of the First Amendment; without the freedom to

attend such trials, which people have exercised for cen-

turies, important aspects of freedom of speech and “of the

press could be eviscerated.”. . .

Richmond Newspapers at 580, quoting Branzburg v. Hayes,

408 U.S. 665, 681 (1972).

To be sure, none of the opinions rendered in Richmond

Newspapers stated that the rights there described were abso-

lute. The plurality opinion, however, did indicate that the

standard for closure should be high indeed, and that the deci-

sion to close trials should be made by the trial judge on a case-

by-case basis. Thus, as the plurality opinion put it, “[a]bsent

an overriding interest articulated in findings, the trial of a

criminal case must be open to the public.” Richmond News-

papers at 581. Several of the concurring opinions also advert-

ed to the very limited circumstances under which closure was

appropriate. Justice Stewart, for example, suggested that

closure was appropriate only when, and to the degree, neces-

sary to serve what might be viewed as mechanical interests

similar to those which historically have given rise to reasonable

“time, place, and manner” restrictions on First-Amendment

rights. Id. at 600. Justice Blackmun implicitly reaffirmed the

standard for trial closures which he first advanced in Gannett

Co. v. DePasquale, 443 U.S. 368, 440 (1979) (Blackmun, J.,

dissenting), i.e., that closure is permissible only when “strictly

and inescapably necessary.” Richmond Newspapers at 601

(Blackmun, J., concurring).

Notwithstanding the absence of a unified dispositional prin-

ciple, the plurality and concurring opinions in Richmond

Newspapers all subscribed to the basic proposition that, where

governmental action potentially infringes on First-Amend-

ment rights, the action must be exactingly crafted to achieve

the governmental interest at stake without unnecessary

abridgement of important rights. In that regard, the decision,

despite its potentially far-reaching consequences, traversed a

well-blazed path. Countless decisions of this Court prior to

Richmond Newspapers have clearly established that “[b]road

prophylactic rules in the area of free expression are sus-

pect... . Precision of regulation must be the touchstone in

an area so closely touching our most precious freedoms.”

NAACP v. Button, 371 U.S. 415, 438 (1963). Phrased another

way, “a governmental purpose to control or prevent activities

constitutionally subject to. . . regulation may not be achieved

by means which sweep unnecessarily broadly and thereby in-

vade the area of protected freedoms.” NAACP v. Alabama ex

rel. Flowers, 377 U.S. 288, 307 (1964). Accord, Schaumburg

v. Citizens for Better Environ., 444 U.S. 620, 635 (1980). See

generally Note, The First Amendment Overbreadth Doctrine,

83 Harv. L. Rev. 844 (1970). In order to avoid undue im-

precision, it is always necessary under the First Amendment to

focus precisely on the state interest asserted, to reach a judg-

ment concerning its importance, and then to determine

whether the interest can be achieved through measures less

drastic than those the government has implemented. See, e.g.,

Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 95-96

(1977); Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-18

(1975); Gooding v. Wilson, 405 U.S. 518, 521-22 (1972);

Shelton v. Tucker, 364 U.S. 479, 488 (1960); NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 463-64 (1958).

At bottom, all of the opinions in Richmond Newspapers,

save one, recognized the principles just described. While, for

various reasons, several of those who concurred in the judg-

ment found it unnecessary to examine in detail the strength of

conceivable state interests or the possibility that they could

have been achieved through less drastic means, all recognized,

at least implicitly, the necessity for the Court to do so in an ap-

propriate case. This is that case, for the Supreme Judicial

Court's decision simply does not reflect proper application of

standard First-Amendment analysis.

B. The Interests Identified by the Supreme Judicial Court are

Insufficient to Require Closure of All Testimony of All Vic-

tims at All Trials Comprehended by M.G.L. c. 278, § 16A.

In its opinion in Globe II, the Supreme Judicial Court held

that, to determine the constitutionality of the mandatory closure

requirement of § 16A, a three-fold inquiry was necessary. That

inquiry, in the court’s view, required it to ascertain:

(1) whether closing the testimony of the minor victim of a sex-

ual assault violated the same tradition of open proceedings as

the closing of an entire murder trial; (2) whether closure im-

peded the flow of information necessary to the functioning of

democratic institutions; and (3) whether there were substan-

tial state interests underlying the statute which could not be

furthered by more tightly drawn regulations intruding to a

lesser degree on the constitutionally protected interests of the

press and public (App. 65a). As will be discussed, the first

two inquiries engaged in by the Supreme Judicial Court are

not the appropriate inquiries in light of the standards estab-

lished by Richmond Newspapers. The outcome of the court’s

analysis with respect to the third inquiry reflects the court’s

misapprehension of the central meaning of Richmond News-

papers itself.

In analyzing the first question, relating to the role of tradi-

tion, the Supreme Judicial Court concluded that trials of

crimes involving sexual assaults were a “notable exception” to

the “unbroken tradition of openness” which inheres in the trial

of other crimes (App. 65a). The court’s reliance on a per-

ceived exception to the historic tradition of open trials both

misses the point established in Richmond Newspapers and mis-

apprehends the strength and nature of that tradition.

To be sure, all opinions in Richmond Newspapers, as well as

all opinions in Gannett Co. v. DePasquale, 443 U.S. 368

(1979), reviewed in some detail the presumption of openness

which has historically attended the trial of criminal cases. Ul-

timately, however, it was the “constitution that [the Court

was] expounding.” McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 407 (1819) (emphasis in original). While history

may help shape the meaning of the Constitution as applied to a

current problem, surely history does not freeze constitutional

rights in a mold formed by years gone by. See, e.g., Brown v.

Board of Education, 347 U.S. 483 (1954); A. Bickel, The Least

Dangerous Branch, 108-10 (Bobbs-Merrill, 1962). This is not

to say that history is irrelevant but simply that it is not disposi-

tive in the current interpretation of constitutional rights.

Moreover, to give a “notable exception” the weight to which

it is entitled in forming current judgments, it is necessary to

have an accurate understanding of what the exception is. Stat-

utes and judicial decisions of numerous states do in fact per-

mit, and for years have permitted, a trial judge to exclude the

press and public from portions of certain types of criminal

trials, including trials of crimes involving sexual assaults.®

Even prior to this Court’s decision in Richmond Newspapers,

however, these statutes and cases were uniformly permissive

only. Despite a thorough search, the Globe has been unable

to find any state statute, other than § 16A, containing manda-

tory provisions for exclusion of the press or general public from

all or part of a criminal trial.° Thus, if there is a »otable ex-

ception to the tradition of openness for trials of crines involv-

ing sexual assaults, it is one which permits the trial judge to

close portions of the trial but does not require him to do so.

A review of the authorities cited by the Supreme Judicial

Court in Globe II in support of the “notable exception” makes

the extremely limited nature of that perceived exception abun-

dantly clear (App. 65a-66a, 67 n.12). None of the cases cited

by the court involved mandatory closure of all or ceri» a por-

tions of a trial. In each case, closure resulted from an exercise

of discretion on the part of the trial judge.'° The same is true

® See, e.g., authorities cited in Gannett Co. v. DePasquale, 443 U.S. 368,

388 n.19 (1979).

*Some state statutes do require exclusion of minors from certain criminal

trials unless it is necessary for them to be present. E.g., Vermont Stat.,

tit. 12, § 1901. But see M.G.L. c. 220, § 13A. Those statutes, however,

rest on very particular grounds and cannot be viewed as a springboard for

“traditional” exclusion of adults. See generally Butler v. Michigan, 352 U.S.

380, 383 (1957).

‘© It also should be noted that the cases cited by the court call into question

the very existence of an exception to the rule of openness, at least as it applies

to the Globe. In three of the six cases cited by the court for the proposition

that there is an exception to the tradition of openness for trials of crimes in-

volving sexual assaults, the press was allowed to remain despite the exclusion

of members of the general public. United States ex rel. Latimore v. Sielaff,

561 F.2d 691 (7th Cir. 1977), cert. denied, 434 U.S. 1076 (1978); Douglas v.

State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871 (1976); Price v. State,

496 S.W.2d 103, 107-08 (Tex. Crim. App. 1973).

with respect to the three state statutes cited by the court —

each is permissive and not mandatory.'! There is, in sum, no

“notable exception” to the history of open trials which uni-

formly and without leeway requires exclusion of the public

from any part of a trial involving a sexual offense.

The court answered the second question it posed, i.e.,

whether the mandatory closure aspect of § 16A impedes the

flow of information necessary to the functioning of democratic

institutions, by concluding that the impediment undoubtedly

flowing from closure was offset by the general ability of the

public to observe trials of sex-related crimes which did not in-

volve minors (App. 67a-68a). In essence, then, the court con-

cluded that the partial closure in cases like this one would have

a de minimus impact on the flow of information necessary for

the sound operation of a democracy because of the general

availability of different information elsewhere.

With all due respect, to draw such a conclusion is to enter

dangerous territory. With good reason has this Court ex-

pressed serious reservations about the wisdom of committing

to “the conscience of judges” the task of determining what in-

formation is or is not relevant to democratic institutions.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). In-

stead, because “[f]reedom of discussions, if it would fulfill its

historic purposes, must embrace al! issues about which infor-

mation is needed or appropriate in order to enable the mem-

bers of society to cope with the exigencies of their period,”

Thornhill v. Alabama, 310 U.S. 88, 102 (1940), this Court has

'! Alabama Code § 12-21-202 (1975) (“In all prosecutions for rape and as-

sault with intent to ravish, the court may, in its discretion, exclude from one

courtroom all persons, except such as may be necessary in the conduct of the

trial”) (emphasis added); New York Jud. Law § 4 (McKinney 1975) (“in all

proceedings and trials in cases for divorce, seduction, abortion, rape, assault

with intent to commit rape, sodomy, bastardy or filiation, the court may, in

its discretion, exclude therefrom all persons who are not directly interested

therein”) (emphasis added); North Carolina Gen. Stat. § 15-166 (1975) (“In

the trial of cases for rape or a sex offense or attempt to commit rape or at-

tempt to commit a sex offense, the trial judge may, during the taking of testi-

mony of the prosecutrix, exclude from the courtroom all persons except the

officers of the court, the defendant and those engaged in the trial of the

case”) (emphasis added).

interpreted the First Amendment broadly to protect traffic in

all ideas “regardless of their social worth.” Stanley v.

Georgia, 394 U.S. 557, 564 (1969). See generally Griswold v.

Connecticut, 381 U.S. 479, 482 (1965) (“the State may not,

consistently with the spirit of the First Amendment, contract

the spectrum of available knowledge.”). Bluntly put, it is not

the business of the judiciary — indeed, it is not the business of

any governmental institution under our system — to make

value judgments about the social worth of information" or to

measure the impact on democratic institutions of suppressing

some information by reference to the quantum of information

which remains in the public domain.

The final inquiry engaged in by the Supreme Judicial Court

was whether the mandatory closure aspect of § 16A served

“substantial state interests” which could not be furthered by

more tightly drawn regulations. The court found that § 16A

served essentially three state interests: (1) an interest in spar-

ing juveniles the “public degradation, humiliation, demorali-

zation and psychological damage” of testifying in an open

courtroom and the allied interest of promoting the “likelihood

of credible testimony” by juvenile victims; (2) an interest in

protecting minors from the stigma of having been victims of

sex crimes; and (3) an interest in the “sound and orderly ad-

ministration of justice,” including an interest in encouraging

victims to come forward and institute complaints (App. 68a).

Moreover, it found that these interests could not be furthered

by the less restrictive alternative of granting the trial judge dis-

cretion to make a case-by-case decision on closure or permit-

ting the victim to waive the statute’s protection. The court

felt that any hearing prior to closure would become an elabo-

rate “side trial,” destructive of the very interests sought to be

protected (App. 69a n.15). A waiver procedure, in the court's

'? This Court's treatment of pornography perhaps represents an exception

to the thoughts just expressed. See Miller v. California, 413 U.S. 15, 24

(1973). To identify that exception, however, is also to identify the quagmire

into which one is ineluctably led when one begins to measure the scope of

constitutional protection by the “worth” of the information for which protec-

tion is sought.

view, would involve “the same kind of potentially damaging in-

quiry” to determine the victim's psychological vulnerability

(App. 69a n.15). None of the interests identified by the Su-

preme Judicial Court, however, is sufficient to support § 16A’s

global reach and all can be achieved through closure decisions

made on a case-by-case basis.

As stated, the first interest identified by the court in Globe

II is the interest in sparing juveniles the embarrassment of tes-

tifying candidly and accurately in an open courtroom

(App. 68a). Several courts, however, have found that what

might be called the “embarrassment” interest is, in and of it-

self, insufficient to support closure of a criminal trial to press

and public. State v. Sheppard, 42 C.L.J. 23 (Conn. 1980) (in-

volving minor rape victim); Lexington Herald Leader Co. v.

Tackett, 601 S.W.2d 905 (Ky. 1980) (involving minor sodomy

victim); State v. Schmit, 273 Minn. 78, 85, 139 N.W.2d 800

(1966) (“Mere embarrassment of adult witnesses with no

showing of inability to testify is not a sufficient reason to de-

feat . . . an overbalancing constitutional right”).

Beyond that, for several reasons, the “embarrassment” inter-

est, even when coupled with a desire to ensure candid testi-

mony, simply is not precise or focused enough to override in all

cases the presumptive right of the public to attend criminal

trials. See generally Linmark Associates, Inc. v. Willingboro,

431 U.S. 85 (1977); Erznoznik v. City of Jacksonville, 422 U.S.

205 (1975). To begin with, given the language of § 16A, given

the Supreme Judicial Court’s prior interpretations of that stat-

ute, e.g., Commonwealth v. Marshall, 356 Mass. 432, 253

N.E.2d 333 (1969) (defen:iant’s father, mother, brother, sister

and friends have a right to attend a trial governed by § 16A),

and given the requirements of the Sixth Amendment to the

Constitution, it is clear that in virtually every trial comprehend-

ed by § 16A the testimony of the complaining witness will take

place before a sizeable group of unknown court personnel,

jurors, attorneys and spectators. The quantum of embarrass-

ment or impediment to candid testimony necessarily added by

the presence in the courtroom of a few additional members of the

public or of the press thus must remain a matter of conjecture.

The record in this case illustrates the point, for it is wholly

insufficient to permit a reasoned conclusion that the Common-

wealth in fact was in danger of losing the complainants’ testi-

mony if the press were admitted while they were on the wit-

ness stand. Indeed, as was mentioned earlier, p. 5 n.3, supra,

the concerns over press attendance which the victims voiced,

albeit after the order of closure was entered for different rea-

sons, were not concerns with which § 16A was equipped to

deal and there is no suggestion that they would not have testi-

fied, or would have testified differently, had the press been ad-

mitted. Beyond that, a tangible risk of the possibility of lost or

inaccurate testimony always can be addressed on a case-by-

case basis. Couched as it is in mandatory terms, however,

that portion of § 16A which requires closure of a portion of the

trial does not permit case-by-case analysis and may thus extin-

guish constitutional rights where their exercise would burden

no state interest whatsoever.

Moreover, § 16A is not triggered by the request of a victim

for a closed hearing; in fact § 16A requires a closed hearing

even if the victim is indifferent to, or, as Justice Wilkins postu-

lated (App. 74a), desires, an open hearing (App. 69a n.15).

Surely, a desire to prevent embarrassment of the unembar-

rassed cannot give rise to an overriding state interest if, in-

deed, it gives rise to any state interest at all. In any event, a

statute which protects even those who would eschew its pro-

tection, and which does so at the expense of the First-Amend-

ment rights of others, is clearly overbroad. First National

Bank of Boston v. Bellotti, 435 U.S. 765, 794-95 (1978).

A second interest which the Supreme Judicial Court found

underlying § 16A was the general paternal interest a state has

in preventing stigmatization of minors. As identified, this in-

terest was served not only by § 16A, but also by a group of

other statutes “designed to protect the identity of minors who

are subjects of litigation” (App. 7la n.16). The court, point-

ing to a number of the Commonwealth’s juvenile-delinquency

statutes, stated that it would be “anomalous” if the state legis-

lature could protect juvenile offenders by closed hearings but

could not do the same for juvenile victims (App. 71a).

However well-motivated, paternalistic state designs do not

automatically sweep from their path all countervailing consid-

erations. E.g., Davis v. Alaska, 415 U.S. 308 (1974); In re

Winship, 397 U.S. 358 (1970); Butler v. Michigan, 352 U.S.

380 (1957); Commonwealth v. Joyce, Mass. Adv. Sh. (1981)

39, N.E.2d_ _. _ Moreover, the juvenile-delinquency stat-

utes cited by the court are designed in essence to limit the stig-

matizing effects of the state’s exercise of its penal authority

when juveniles are charged with crimes.'* But the “stigma”

which a juvenile criminal may suffer as a result of state action

is not analogous to the “stigma” which a victim may suffer as

the result of individual criminal activity of some third person

acting beyond the control of the state. In the first case, stigma

attaches because of state action which brands a juvenile with

the potentially indelible mark of criminality. In the second

case, state action in the form of a criminal trial serves to re-

move whatever stigma might otherwise attach. By seeking to

prove beyond a reasonable doubt that the defendant was guil-

ty of criminal behavior, the state seeks simultaneously to show

that the victim was the innocent target of unlawful aggression.

The state interest in conducting that purifying process in secret

is much to be doubted.'*

'3One of the statutes cited by the court, M.G.L. c. 210, § 5C, which

preserves the privacy of adoption records, does not appear intended to pre-

vent stigma. No one is permitted to inspect these records, not even the

adopted child or the adoptive parents, without judicial permission. It seems

evident that the legislature intended the statute to assist in a different pur-

pose, i.e., creation of a new legal relationship between child and adoptive

parents which could not be later questioned by anyone, including the child

or the parents who were the subjects of the adoption decree. See M.G.L.

c. 210, §§ 6, 7, 8.

'* As several Justices of this Court have put the matter:

Civilized societies withdraw both from the victim and the vigilante

the enforcement of criminal laws, but they cannot erase from people's

consciousness the fundamental, natural yearning to see justice done —

or even the urge for retribution. The crucial prophylactic aspects of

the administration of justice cannot function in the dark; no communi-

ty catharsis can occur if justice is “done in a corner [or] in any covert

manner.”. . . It is not enough to say that results alone will satiate the

natural community desire for “satisfaction.” A result considered un-

toward may undermine public confidence, and where the trial has

Moreover, if prevention of stigma is the interest the statute

is designed to serve, it inevitably must fail to do so. On the

one hand, if a minor is, or feels, stigmatized as the result of

being the victim of a crime, it is the occurrence of the crime

which engenders that perception or feeling. Closing portions

of the trial thus comes too late to prevent either untoward re-

sult. On the other hand, if publicity is thought to exacerbate

existing stigma, then the only solution is to prevent all public-

ity by closing portions of all such trials and prohibiting the

identification of the prosecuting witnesses. That, however,

§ 16A does not — indeed, could not — do. E.g., Cox Broad-

casting Corp. v. Cohn, 420 U.S. 469 (1975); Smith v. Daily

Mail Publishing Co., 443 U.S. 97 (1979).'5 The Supreme Judi-

cial Court perhaps underscored the inability of the statute to

achieve its perceived objectives in this regard when it held that

the mandatory aspect of § 16A is not applicable to transcripts

containing the minor victim’s testimony (App. 68a n.14). The

inability of the statute to achieve its stated purpose thus under-

scores its constitutionally impermissibility. Smith v. Daily

been concealed from public view an unexpected outcome can cause a

reaction that the system at best has failed and at worst has been cor-

rupted. To work effectively, it is important that society's criminal

process “satisfy the appearance of justice,” . . . and the appearance of

justice can best be provided by allowing people to observe it.

Richmond Newspapers at 571-72 (plurality opinion).

‘5S As the Commonwealth itself stated in the motion to dismiss this case it

filed with this Court during the prior appeal:

[Section] 16A does not bar the press from requesting a transcript of

the testimony; it does not bar it from independent interviews with and

reports from courtroom observers including family and friends of the

victim and accused who have a “direct interest” in the trial and who

therefore are admitted to it under § 16A; it does not bar the press from

the entire remainder of the trial unless the judge finds and explains

overriding justification for further exclusion; and, of course, it does not

bar the press from post-trial contact with any of the participants in the

proceeding. In short, the press need only temporarily report around

the testimony of the child victim.

Motion to Dismiss at 12. Put another way, if stigma is going to attach, § 16A

will not stop it from doing so.

Mail Publishing Co., 443 U.S. 97, 104-05 (1979); Erznoznik v.

City of Jacksonville, 422 U.S. 205, 214-15 (1975).'*

The third interest identified by the Supreme Judicial Court

is the state’s interest in “sound and orderly administration of

justice,” including an interest in encouraging victims to come

forward and institute complaints (App. 68a). Again, the basis

for asserting that that interest will be served by § 16A is, at

best, speculative. The speculative nature of the interest is

amply demonstrated by the manner in which the court ex-

pressed it in Globe I. For example, the court reasoned that the

possibility of testifying in public “might” lead a young woman

to choose not to cooperate with the prosecution. It also rea-

soned that “[s]he might be deterred from coming forward at

all” (App. 41a) (emphasis added). Moreover, the court said

that the victim’s knowledge that some of the people in the

courtroom were “reporters who might publish her testimony

... would probably increase ... her sense of exposure”

(App. 43a) (emphasis added). So described, the interest

amounts to the kind of “undifferentiated fear or apprehen-

sion” this Court views as insufficient to override First-Amend-

ment rights. Tinker v. Des Moines Independent Community

School Dist., 393 U.S. 503, 508 (1969).

It is, moreover, a contradiction in terms to state that closing a

trial will assist in securing a “just” conviction when one of the

main purposes for having public trials is prevention of overzeal-

ous prosecution or biased judgments. This Court emphasized in

Richmond Newspapers the historical importance of openness in

assuring “that the proceedings were conducted fairly to all con-

cerned, and [in discouraging] perjury, the misconduct of partici-

pants, and decisions based on secret bias or partiality.” Rich-

mond Newspapers at 569. See also In re Oliver, 333 U.S. 257,

266-70 (1948). There is simply no evidence that closure will do

more to secure a “just” conviction than it will do to damage the

integrity of the judicial process and thus the justice in which that

process results. See generally Richmond Newspapers at 569-73.

‘©The underinclusive nature of § 16A is underscored by the fact that, as

construed, the statute would not have met the only concerns over press at-

tendance at trial voiced by the victims in the case at hand. See n.2, supra.

In summary, none of the interests identified in Globe II

which the Supreme Judicial Court found § 16A designed to

serve is sufficiently precise to justify mandatory exclusion of

the press and public from all testimony of all minor victims

during all trials of all crimes covered by § 16A. In the words

of the Court in Richmond Newspapers, “(t}he explicit, guar-

anteed rights to speak and to publish concerning what takes

place at a trial would lose much meaning if access to observe

the trial could, as it was here, be foreclosed arbitrarily.” Rich-

mond Newspapers at 576-77.

C. In Order to Ensure that an Order Closing a Criminal

Trial, in Whole or in Part, is the Least Drastic Means for

Achieving an Overriding Governmental Interest, a Hear-

ing Prior to Closure is Necessary.

Returning to the theme with which this discussion started,

the analysis just concluded shows that a statute like § 16A,

which requires the closure of portions of all trials of certain

crimes, is inherently overbroad. That is to say nothing more,

but certainly nothing less, than that the statute seeks to

achieve its perceived objectives “by means which sweep un-

necessarily broadly and thereby invade the area of protected

freedoms.” NAACP v. Alabama ex rel. Flowers, 377 U.S.

288, 307 (1964). Ultimately, the concept of overbreadth if a

relative one. Assuming the existence of an identifiable and

“compelling” or “overriding” state interest, the question be-

comes in every case whether the government has pursued that

interest with sufficient precision in light of available alterna-

tives. Shelton v. Tucker, 364 U.S. 479, 488 (1960).

The mechanism expressly contemplated by the plurality in

Richmond Newspapers and the dissenters in Gannett Co. v.

DePasquale, 443 U.S. 368 (1979), for avoiding unnecessarily

broad closure orders, is a hearing prior to closure at which the

trial judge could explore in some detail the precise interests at

stake and alternatives less burdensome than closure by which

those interests might be served. Such a hearing permits the

judge to base his decision on the particularized factual situa-

tion presented. As Justice Wilkins acknowledged in his con-

curring opinion (App. 74a), a legislature’s decision is necessarily

based on general findings which bv their nature cannot be ac-

curate in each individual case. See generally First National

Bank of Boston vy. Bellotti, 435 U.S. 765, 784-86 (1978). A

hearing is thus necessary to ensure that the First-Amendment

rights ot the press and the public will not be abridged unneces-

sarily. ‘ihat, at least, is the conclusion of every decision save

Globe II, which has treated the issue in the wake of Richmond

Newspapers. See In re United States ex rel. Pulitzer Publishing

Co., 635 F.2d 676 (8th Cir. 1980); State v. Sheppard, 42 C.L.J.

23 (Conn. 1980); United States v. Edwards, A.2d_~ , Nos.

294 and 401 (D.C. May 8, 1981); State v. Green, 395 So.2d 532

(Fla. 1981); Ashland Publishing Co. v. Asbury, 612 S.W.2d 749

(Ky. App. 1980); Patuxent Publishing Corp. v. State, 48 Md.

App. 689, 429 A.2d 554 (1981); Detroit Free Press v. Recorder's

Court Judge, 409 Mich. 364, 294 N.W.2d 827 (1980); State v.

Sinclair, 274 S.E.2d 411 (S.C. 1981); State v. Wahle, 298

N.W.2d 795 (S.D. 1980); Herald Ass’n, Inc. v. Ellison, 138 Vt.

529, 419 A.2d 323 (1980).

To state that the First Amendment requires a hearing prior to

closure is, however, not to agree with the Supreme Judicial

Court’s views that the hearing necessarily would be a full-

blown evidentiary hearing in which all participants had the

right to present expert testimony and to examine and cross-

examine the victim (App. 69a n.15). In State v. Green, 395

So.2d 532 (Fla. 1981), for example, the Supreme Court of

Florida held that, while a hearing prior to closure was required,

that hearing did not necessarily have to be an evidentiary hear-

ing. The court held that the trial judge in many instances could

hold a hearing which gave all parties an opportunity to be

heard and could make a decision on the basis of affidavits. In

some circumstances, like the one envisioned by Justice Wilkins

in his separate opinion in Globe II concerning the victim who

wants the public to know precisely what a heinous crime the de-

fendant committed (App. 74a), the hearing required by Rich-

mond Newspapers could be very abbreviated.

With respect to the role of the press and public, it is neces-

sary, but also sufficient, to provide that reasonable degree of

participation at the hearing which is necessary to guarantee a

meaningful opportunity to influence the court’s determina-

tion. See generally Carroll v. President & Comm'rs of Princess

Anne, 393 U.S. 175, 183-84 (1968). With respect to the scope

of the inquiry, i.e., the type of evidence that could be present-

ed, whether oral examination of the witnesses would be al-

lowed or whether the victim could be examined or cross-exam-

ined, the sound discretion of the trial court, informed by the

necessity for creating a record susceptible to appellate review

under the standards enunciated in Richmond Newspapers,

would surely suffice. Thus, the hearing mandated by Rich-

mond Newspapers need not be the elaborate, “cumbersome”"”

one envisioned by the Supreme Judicial Court, but rather

could take a number of forms depending on the circumstances

of the individual case.

The object of such a hearing, of course, ultimately is an in-

formed conclusion that, in the case then before the court, the

interests asserted in support of closure are tangible and substan-

tial and that they can be achieved by measures no less drastic

than closure itself. More concretely, in a case arising under

§ 16A, the object of the hearing should be to determine whether

closure is necessary to prevent a high degree of likelihood of

serious psychological harm to the victim if testimony is taken in

public, whether alternatives to closure will adequately protect

against such harm, and whether closure will be effective in pro-

tecting against the perceived psychological harm to the young

victim. By requiring closure in all cases, § 16A permits no such

inquiry and thus invites, indeed requires, closure in cases like

this one where closure is wholly unnecessary for achievement of

any state interest at all. On its face and as applied to this case,

the statute thus is unconstitutional to the extent that it requires

closure while the minor victim is testifying.

'’ It is difficult to square the Supreme Judicial Court's concern that the pre-

exclusion hearing would be a “cumbersome,” time-consuming “side trial”

with its statement in Globe I that the hearing with regard to closure of por-

tions of the trial other than the minor victim's testimony “should be com-

pleted exneditiously and should not ordinarily involve lengthy legal argu-

ment” (App. 45a). The reason for the distinction between hearings with re-

spect to different portions of trials is not apparent.

II. Massacuusetts Generat Laws c. 278, § 16A VIOLATES

APPELLANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES.

In addition to the First-Amendment principles just can-

vassed, the Sixth Amendment, which provides in pertinent

part that “[iJn all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial,” also conferred on

the Globe a right to attend the entire trial of Albert Aladjem,

a right that both § 16A and the closure order violated. The

Supreme Judicial Court declined to address the Globe's Sixth-

Amendment claims in any comprehensive fashion on the

grounds that the Globe had no standing to raise those claims,

claims the court considered personal to Mr. Aladjem. The

court also held that the Globe did not bear a relationship to

Mr. Aladjem which might allow it to raise those claims on his

behalf. Under the narrow circumstances of this case, how-

ever, the mere fact that Mr. Aladjem, acquitted below, is not

actually present before the Court should not end the Sixth-

Amendment inquiry.'®

To begin with, there is little that can be said about the

Sixth-Amendment issue here posed which was not said in one

or more of the opinions in Gannett Co. v. DePasquale, 443

‘The Supreiie Judicial Court also concluded that this Court’s remand

order requirea .. to consider First-Amendment issues only because “the vari-

ous opinions in Richmond Newspapers are based on the First Amendment,

not the Sixth Amendment” (App. 6la n.5). Thus, in effect, the court con-

strued the order of this Court to reconsider the case in light of Richmond

Newspapers as an affirmance of its denial of the Globe's Sixth-Amendment

claims. That interpretation of this Court's order seems unwarranted. This

Court's order vacated the Globe I judgment completely, not simply with re-

gard to its First-Amendment aspects. Moreover, the plurality opinion in

Richmond Newspapers expressly stated that Gannett Co. v. DePasquale, 443

U.S. 368 (1979), holding that the press and public have no standing to assert

a Sixth-Amendment right in the teeth of a desire by all parties to a criminal

proceeding for a closed hearing, was limited to pretrial proceedings alone.

Richmond Newspapers at 564. As a result, it appears that four current mem-

bers of this Court believe that the Sixth Amendment does afford the press and

public a right to attend pretrial hearings as well as trials and at least two

others are of the view that Gannett did not foreclose the possibility that the

Sixth Amendment embraces a public right of attendance at trials themselves.

U.S. 368 (1979). The appropriate question, therefore, con-

cerns the impact of that decision on this case. At the outset,

the Sixth-Amendment issue with which the majority dealt in

Gannett concerned pretrial hearings alone, despite the some-

times broad language of its opinion. In this Court’s words:

There is no question that the Sixth Amendment permits

and even presumes open trials as a norm. But the issue

here is whether the Constitution requires that a pretrial

proceeding such as this one be opened to the public, even

though the participants in the litigation agree that it

should be closed to protect the defendants’ right to a fair

trial. The history [of the Sixth Amendment demonstrates

that the Amendment was not] . . . intended to create a

constitutional right in strangers to attend a pretrial pro-

ceeding, . . . [but] was to confer upon the accused an ex-

plicit right to demand a public trial. . . .

Id. at 385-86 (emphasis in original).

That the Gannett holding applies only to pretrial proceed-

ings and not to the trial itself was further discussed in Rich-

mond Newspapers:

In Gannett Co. v. DePasquale, supra [443 U.S. 368

(1979)], the Court was not required to decide whether a

right of access to trials, as distinguished from hearings on

pretrial motions, was constitutionally guaranteed. The

Court held that the Sixth Amendment’s guarantee to the

accused of a public trial gave neither the public nor the

press an enforceable right of access to a pretrial suppres-

sion hearing. . . .

Richmond Newspapers at 564 (plurality opinion) (emphases in

original).

The narrow holding of Gannett thus is that the public may

not raise the Sixth Amendment as a constitutional bar to an

order closing a pretrial hearing where an open hearing poses a

“reasonable probability of prejudice” to a defendant's right to

a fair trial and where all participants in the hearing agree on

closure. Gannett at 393-94.

To state this Court’s holding in Gannett, then, is to distin-

guish it at once from the present case. Here we are dealing

with a trial, not with a pretrial proceeding. Here the prose-

cutor did not request closure, and here the defendant specifi-

cally objected to the closure order. Whatever might be said of

a “stranger’s” standing to assert a Sixth-Amendment right to a

public trial when the criminal defendant abjures that Amend-

ment’s protections, it seems clear that standing should exist

when the defendant himself seeks to assert at a trial the rights

the Amendment provides.'®

A number of decisions of this Court support the conclusion,

albeit by way of analogy, that the public and the press have

standing to assert rights under the Sixth Amendment when the

defendant himself demands a public trial. This Court has rec-

ognized, for example, that a party has standing to assert the

constitutional rights of third parties if the litigating party

alleges a sufficient interest in the cutcome, if “the enjoyment

of [a] right [by the third party] is inextricably bound up with

the activity the litigant wishes to pursue” and if there is some

practical impediment to the third party's ability to assert his

own rights. Singleton v. Wulff, 428 U.S. 106, 112-16 (1976)

(opinion of Blackmun, J.). See also Carey v. Population Serv-

ices International, 431 U.S. 678, 684 (1977) (parties are per-

mitted “to resist efforts at restricting their operations by acting

as advocates for the rights of third parties who seek access to

their market or function”); Griswold v. Connecticut, 381 U.S.

479, 481 (1965); Barrows v. Jackson, 346 U.S. 249 (1953).

Granting standing to such third parties is particularly appro-

ptiate where the challenged statute will have a direct adverse

impact on that third party. Eisenstadt v. Baird, 405 U.S. 438,

445-46 (1972) (distributor of contraceptives can assert consti-

tutional rights of individuals to receive contraceptives).

This factor alone demonstrates the important difference between the

present situation and that presented in Gilmore v. Utah, 429 U.S. 1012

(1976), cited by the Supreme Judicial Court (App. 61a n.5). In Gilmore, it

was determined that the defendant had affirmatively waived any rights he

had to appeal his conviction to this Court and that he was in fact opposed to

the application for a stay of execution of the lower court's sentence sought by

his mother as “next friend.” Gilmore at 1013-15 (Burger, C.J., concurring).

Principles drawn from the foregoing cases strongly support a

conclusion that, as a party directly affected by a closure order

entered under § 16A, the Globe has standing to assert the

Sixth-Amendment rights of Mr. Aladjem who desired a public

trial. The closure order had a direct impact on the Globe be-

cause it prohibited activity in which the Globe desired to en-

gage. The Globe’s interests are “inextricably bound up” with

the criminal defendant's interest in having this trial publicized

so that abuses may be detected and curbed and so that poten-

tial witnesses will come forward and testify. Particularly

where, as here, the criminal trial ends in an acquittal, the

criminal defendant’s public-trial claim may be moot in every

sense of the word for he cannot be retried for the same offense,

and any assertion that he might be faced with a closure order

in a future trial for a future alleged violation of the same stat-

ute would be wholly speculative. Imminent mootness of the

criminal defendant's public-trial claims thus is a very real and

practical impediment to its vindication each time that claim is

made. Compare Singleton v. Wulff, 428 U.S. 106, 117-18

(1976) (opinion of Blackmun, J.).

Turning to the merits, there can be no doubt that the right

to a public trial is firmly engrained in our notions of ordered

liberty. Indeed, it stands among very few of the absolutes

contained in the Bill of Rights to which this Court, despite the

passage of nearly 200 years, has not squarely announced an ex-

ception. That fact, coupled with the critical role in the pur-

suit of justice played by the public trial, implies, if indeed it

does not dictate, that a criminal trial may not be closed, in

whole or in part, at least over the objection of a defendant un-

less closure is inescapably necessary to safeguard a state inter-

est of the highest order, unless there are no less drastic methods

available for pursuing that interest and unless it is clearly dem-

onstrated that the closure order will effectively guard against

the perTeived danger. See Gannett Co. v. DePasquale, 443

U.S. 368, 441-42 (1979) (Blackmun, J., concurring in part and

dissenting in part). See generally Smith v. Daily Mail Publish-

ing Co., 443 U.S. 97 (1979); Oklahoma Publishing Co. v. Dis-

trict Court of Oklahoma County, 430 U.S. 308 (1977); Nebras-

ka Press Ass'n v. Stuart, 427 U.S. 539 (1976).

Section 16A as construed and applied in this case meets none

of those criteria. The state interests served by the statute are

both speculative and vaguely defined. The statute in its man-

datory aspect takes no account of the desires of the individual

it is supposed to protect, countenances no suggestion that pro-

tection may be afforded through more moderate means, and

permits no evaluation of the harm from which protection is

sought. Finally, as an effective refuge from conceivable

harm, the statute is seriously deficient. In sum, when mea-

sured against a Sixth-Amendment right to a public trial, § 16A

simply must give way.

Conclusion.

For the foregoing reasons, probable jurisdiction should be

noted and M.G.L. c. 278, § 16A as construed by the Supreme

Judicial Court to require exclusion of the press and the public

from portions of the trials of certain crimes should be declared

unconstitutional.

Respectfully submitted,

JAMES F. McHUGH,

ROBERT HAYDOCK, JR.,

MARC A. REARDON,

BINGHAM, DANA & GOULD,

100 Federal Street,

Boston, Massachusetts 02110.

(617) 357-9300

Appendix.

COMMONWEALTH OF MASSACHUSETTS

SuPREME JupIciAL Court

SUFFOLK, SS.

THE GLOBE NEWSPAPER COMPANY

Vv.

THE SUPERIOR COURT FOR THE

COUNTY OF NORFOLK.

Petition for Extraordinary Relief Pursuant to Mass. General

Laws Chapter 211, Section 3

Now comes plaintiff, The Globe Newspaper Company, (the

“plaintiff”) and resr<* “ly represents:

1. Plaintiff is 2 «st» «stion organized and existing under

and by virtue of ©» ic + «' the Commonwealth of Massachu-

setts with a principal place of business in Boston, Massachu-

setts. It is the publisher of The Boston Globe, a newspaper of

general circulation in the City of Boston and elsewhere.

2. Defendant, The Superior Court for the County of Nor-

folk, (“Norfolk Superior Court”) is the court which by statute

has jurisdiction over certain criminal cases arising within the

Commonwealth of Massachusetts and within the venue of

Norfolk County.

3. On or about April 19, 1979, the Norfolk Superior Court

commenced hearings with respect to preliminary motions in

the case of Commonwealth of Massachusetts v. Albert Alad-

jem, Norfolk Superior Court, No. 73102-9. At that time, the

Norfolk Superior Court caused to be placed on the courtroom

door a sign which stated “closed.” All persons approaching

the courtroom doors were told by courtroom personnel that

they may not enter the courtroom. Subsequently, certain

members of the press were told by court personnel that they

could enter the courtroom during the preliminary hearings.

On information and belief, one reporter was allowed to enter

the courtroom and was informed by Judge Mulkern that the

reporter could remain in the courtroom, but should not pub-

lish any information that was disclosed in the course of the

hearings on preliminary motions.

4. On, April 24, 1979, counsel to the plaintiff went to the

Norfolk Superior Court. Counsel was informed that the hear-

ings for that day had been terminated. Tudge Mulkern told

counsel that the hearings would continue the following day.

5. On April 25, 1979, at the commencement of the proceed-

ings before Judge Mulkern, counsel for the plaintiff filed with

the clerk three motions (1) a motion to revoke orders concern-

ing exclusion of the press; (2) a motion for hearing; and (3) a

motion to intervene. These documents are attached hereto as

Exhibits A-C respectively. The motion to intervene requests

that the plaintiff be allowed to intervene for the limited pur-

pose of asserting its rights to access to the trial and hearings on

the related preliminary motions. The motion to revoke prior

orders refers to prior proceedings of the Court, where the press

had been excluded, and requested a transcript of those pro-

ceedings. The motion for hearing requested that the plaintiff

be granted an opportunity to be heard before the Court with

respect to orders excluding the press from the trial and related

hearings on preliminary motions.

6. At the commencement of the proceedings, before the

Court, Judge Mulkern held that plaintiff’s motions would not

be accepted for filing. Without the opportunity for hearing

requested by plaintiff and without argument of counsel, the

Court further ordered that pursuant to C.L. c. 278, § 16A, the

trial would be closed and the press and general public would

be excluded. A copy of the transcript relating to these orders is

attached hereto as Exhibit D.

7. Counsel to the defendant objected to the Court’s order

that excluded the press and public.

8. The Assistant District Attorney for the Commonwealth

stated that the exclusion of the press and public is not request-

ed by the Commonwealth.

9. The refusal of the Norfolk Superior Court to permit

members of the press to be present at the trial constitutes an

impermissible burden on the plaintiff's right to gather and dis-

seminate news, is supported by no compelling state interest

and is in violation of the First Amendment to the Constitution

of the United States and Articles XVI and XXIX of the Massa-

chusetts Constitution.

10. To the extent that G.L. c. 278, § 16A is construed as

authority to exclude members of the press from a tria! where

the defendant requests a public trial and the presence of the

press, that statute is in violation of the Sixth Amendment to

the Constitution of the United States and Article XII of the

Massachusetts Constitution.

11. The trial, including the inpanelment of the jury in this

case is scheduled to commence tomorrow, April 26, 1979 and

the orders barring entry to those proceedings by the press re-

main in effect.

12. Plaintiff has no plain, speedy or adequate remedy at

law.

WHEREFORE, plaintiff prays that:

1. Ashort order of notice issue to defendant commanding it

to appear forthwith and answer the allegations of this Com-

plaint.

2. That a temporary restraining order issue forthwith com-

manding defendant to permit members of the press to attend

the trial in the case, Commonwealth of Massachusetts v. Alad-

jem, Norfolk Superior Court, Docket No. 73102-9.

3. That this Court issue a permanent injunction ordering

defendant to permit members of the press to attend the trial

and proceedings in the case of Commonwealth of Massachu-

setts v. Aladjem.

4. For such other, or further, relief as this Court deems

meet and just.

By its attorneys,

Tuomas H. Wa tsi, Jr.

James F. McHucn

Janis M. Berry

BINGHAM, DANA & GOULD

100 Federal Street

Boston, Massachusetts 02110

(617) 357-9300

Exhibit A.

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, ss. Superior Court

A3102-9

COMMONWEALTH OF MASSACHUSETTS

Vv.

ALBERT ALADJEM

Motion to Revoke Orders Concerning Exclusion of the Press

The Globe Newspaper Company (the “Globe” ) moves that

this Court enter an Order revoking any prior Orders of the

Court which exclude the press, including the Globe from the

trial and related hearings on preliminary motions in the above-

captioned case and/or which prohibit the publication of infor-

mation disclosed in said proceedings. The Globe also moves

that a transcript of the proceedings be made available.

By their attorneys,

Tuomas H. Watsu, Jr.

James F. McHucu

Janis M. Berry

BINGHAM, DANA & GOULD

100 Federal Street

Boston, Massachusetts 02110.

(617) 357-9300

DATED: April 25, 1979

Exhibit B.

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, ss. Supeniorn Court

73102-9

COMMONWEALTH OF MASSACHUSETTS

Vv.

ALBERT ALADJEM

Motion for Hearing

The Globe Newspaper Company moves that it be granted

an opportunity for hearing before this Court with respect to

any Orders of this Court which exclude the press from the trial

and related hearings on preliminary motions in the above-cap-

tioned case and/or which prohibit the publication of informa-

tion disclosed in said proceedings.

By their attorneys,

Tuomas H. WaALsH, Jr.

James F. McHucu

Janis M. Berry

BINGHAM, DANA & GOULD

100 Federal Street

Boston, Massachusetts 02110.

(617) 357-9300

DATED: April 25, 1979

Exhibit C.

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. Superior Court

73102-9

COMMONWEALTH OF MASSACHUSETTS

Vv.

ALBERT ALADJEM

Motion to Intervene

The Globe Newspaper Company hereby moves for leave to

intervene in these proceedings for the limited purpose of

asserting its rights to access to the trial and hearings on related

preliminary motions in connection with the above-captioned

case.

By their attorneys,

Tuomas H. Waisn, Jr.

James F. McHucu

Janis M. Berry

BINGHAM, DANA & GOULD

100 Federal Street

Boston, Massachusetts 02110.

(617) 357-9300

DATED: April 25, 1979

Exhibit D.

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS: Superior Court

No. 73102-9

COMMONWEALTH

ALBERT T. ALADJEM, JR.

Third Criminal Session

Dedham, Massachusetts

Wednesday, April 25, 1979

Transcript of Hearing on Motions

Berore: Hon. Robert V. Mulkern, Associate Justice

APPEARANCES:

Ms. Ruth MeNiff, Assistant District Attorney,

For the Commonwealth

Paul T. Smith, Esq. and Harvey R. Peters, Esq.

Co-Counsel, For the Defendant

[2] Wednesday, April 25, 1979

Tue Court. Now, with respect to the case on trial, I have

been handed three motions.

Do counsel for the respective parties have copies of these

motions?

Ms. McNirr. No, Your Honor.

Mr. Peters. No, Your Honor.

Tue Court. One is entitled a “ Motion to Intervene” and it

is signed by Attorney Thomas Walsh, I believe, and another

attorney.

Another is a Motion For Hearing With Respect to Any

Orders of the Court Relating to Exclusion of The Press.

And the third is a Motion to Revoke Orders concerning ex-

clusion of the press.

Would counsel for the respective parties now have copies of

those motions?

Mr. SmitH. Yes, Your Honor.

Tue Court. Do you, Miss McNiff?

Ms. McNirr. Yes, Your Honor, I do.

Tue Court. Would you like a moment to read them?

Ms. McNirr. Yes, I would.

Tue Court. Please do.

[ Pause. }

[3] THe Court. Have counsel now had an opportunity to

read this motion?

Ms. McNirr. Yes, Your Honor.

Mr. Perens. Yes, Your Honor.

Tue Covar. I will take, first, the Motion to Intervene,

which has not been filed.

It has simply been handed to the Court. The case before the

Court, the criminal case of Commonwealth v. Aladjem, in-

volves three high school girls, ages at the time of the offense,

15, 16 and 17, respectively; and I ask to be corrected by Miss

MeNiff if I am wrong in what I say.

Ms. McNirr. You are correct, Your Honor.

Tue Court. The ages, now, are 16 and 17; am I correct on

that?

Ms. McNirr. Sixteen, sixteen and seventeen.

Tue Court. Sixteen, sixteen and seventeen.

10a

The three girls are high school students as of this time. The

allegations of the indictments contain allegations of forcible

rape and allegation of forced unnatural rape, in at least one in-

stance.

Am I correct, Miss McNiff?

Ms. McNirr. You are correct, Your Honor.

Tue Court. The statute in question is General Laws Chap-

ter 278 Section 16A, which provides that at a [4] trial of indict-

ments such as are before the Court, when the alleged victims

are under eighteen years of age, the presiding justice shall ex-

clude the general public from the cou*troe™, admitting only

such persons as may have a direct interest im the case. This

statute parallels, in a general way, General Laws Chapter 119

Section 65, which provides that in a juvenile session, where a

defendant is a juvenile, the Court shall exclude the general

public from the room admitting only such persons as may have

a direct interest in the case.

This Court rules that the Motion to Intervene may not be filed.

That the Globe Newspaper Company, which is named in the

body of the motion, is not a party to the litigation on trial

before the Court. This Court further rules that, consistent

with General Laws Chapter 278 Section 16A, this trial will be

conducted in such a manner that the general public shall be

excluded from the courtroom, including the press, and that

only such persons as may have a direct interest in the case will

be permitted in the courtroom.

This ruling and Order results from a reading of the statute

and from the feeling of the Court that a child-victim of an

alleged sexual attack is entitled minimally to at least the same

protection that a child-[5] defendant in a case involving sexual

matters has.

I will advise the representatives of the Globe newspaper

that are present in the courtroom that it is not anticipated that

impanelment of this case will commence until tomorrow, for

whatever action those representatives care to take.

lla

Okay.

I am returning the papers which have been presented to the

Court.

Ms. Barry. Pardon me, Your Honor. My name is Janice

Barry and I represent the Globe Newspaper Company.

Is Your Honor also ruling that the Globe’s Motion For a

Hearing on the Closure Order is also denied?

Tue Court. Well, Miss Barry, I took the motions in what I

thought was an appropriate order. Since I will not accept for

filing the Motion to Intervene, for the reason that I have indi-

cated, basically a question of standing, then I am not going to

act upon any other motions.

Ms. Barry. Then, Your Honor, as I understand, is saying

that the Globe has not standing to be heard before Your Honor?

Tue Court. I am saying no more. I am not [6] accepting

for filing the Motion to Intervene.

Ms. Barry. Thank you, Your Honor.

Tue Court. You are welcome.

Mr. Perens. Would Your Honor note the Defendant’s ex-

ception to so much of Your Honor’s ruling as excludes the gen-

eral public and the press from the trial in this case.

Tue Court. You have made your exception.

[Defendant's exception noted. ]

Ms. McNirr. Not to be technical, Your Honor, but, for

purposes of the record, may the record indicate that Your

Honor’s ruling was on Your Honor’s own motion and not at the

request of the Commonwealth?

Tue Court. His Honor’s ruling was made on the basis of

the statute which appears at least to be mandatory.

Ms. McNirr. I understand that, Your Honor.

Thank you.

Okay. Let’s proceed with the — I am sorry, gentlemen.

12a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS: SuPREME JuDICIAL Court

No. 79-191 Crv. BRAUCHER, J.

THE GLOBE NEWSPAPER

THE SUPERIOR COURT FOR THE

COUNTY OF NORFOLK

Appearances:

Charles J. Hely, Assistant District Attorney

618 High Street

Dedham, Massachusetts 02026

Margot Botsford, Assistant Attorney General

1 Ashburton Place

Boston, Massachusetts

James F. McHugh, Esq.

100 Federal Street

Boston, Massachusetts

April 26, 1979

Full Court Room-13th floor

New Court House

Boston, Massachusetts

[Partial Transcript of Proceedings. ]

13a

The Proceeding

Court: Mr. McHugh, this is your application, I believe.

Mr. McHucu: Thank you, Your Honor. Your Honor, this

is an application, as the complaint reveals, under General

Laws 211, Section 3, for an order requiring the Justices of the

Norfolk County Superior Court to open to the press a criminal

trial, which yesterday the Court ordered closed. Factually,

the matter arose in essentially the following manner. There

had been a series of pretrial hearings, which the Court was

holding in this case. A case which involves allegations of rape

of three women, ages [2] sixteen, sixteen, and seventeen, I

believe, current ages, in the town of Wellesley. During the

last several days a number of pretrial hearings had been held

by the Court and all of those hearings had been closed to the

press and to the public. At some point yesterday, the Globe

became aware of the possibility that an order would be entered

seeking to close, or ordering closed, the trial itself. And there-

upon, counsel for the Globe went to the Norfolk Superior

Court and attempted to talk with the Judge and determine

what the Court’s views in that regard were. The Court said,

as I understand it, that it would take the matter under advise-

ment and would have some kind of a decision ready the fol-

lowing day, which was yesterday, April 25th. On yesterday,

the Globe filed with the Court . . ., or more precisely, went to

the Court after attempting to determine who the appropriate

Clerk to receive the papers was, and finally finding the Judge’s

court room Clerk, gave to that Clerk a motion to intervene for

the limited purpose of asserting its right to attend the trial ses-

sions. A motion for a hearing, prior to entry of any cloture

order, and a motion for a revocation of any prior cloture

orders that had been entered. The Court, as the transcript at-

tached to our complaint reveals, denied the Globe’s motion to

intervene and said that it would not take up any of the other

l4a

motions, and in addition, entered an order stating that the

trial would be closed to the press and to the public under the

[3] authority of General Laws Section 16A.

Court: Well, I don’t want to foreclose anybody else from

making a point. But, it seems to me, that your procedure ade-

quately raised the question whether the Globe has any right to

have the trial public. . .

Mr. McHucn: All right.

Court: . . . In the face of the statute. And, I think, maybe

you should direct your attention to that.

Mr. McHucu: All right, Your Honor. We believe, and I

am going to urge the Court today, that chiefly for three rea-

sons . . . four reasons the lower court’s order was invalid. Suc-

cinctly and in summary form put, those are that Section 16A

does not by construction require the result the Court reached

in this case. Second, that if it does, it is unconstitutional

under the First Amendment to the Constitution of the United

States. In addition, if it does, it is unconstitutional under the

Sixth Amendment to the Constitution of the United States.

And finally, that wholly apart from the substantive result one

reaches in consideration of those issues, it is a denial of the

First Amendment Rights of the press to enter such an order

without some form of a preliminary hearing addressed to the

merits of the issue concerning whether the trial should be closed.

[11] Courr: Thank you, Mr. McHugh. Now, Ms. Bots-

ford [Assistant Attorney General Representing the Superior

Court for the County of Norfolk] I understand the District At-

torney wants to be heard here. I don’t know whether you

want to be heard before or after.

Ms. Botsrorp: I'll be heard after.

Mr. Hey: Just briefly, Your Honor.

\Sa

Court: This is Mr.?

Mr. Hety: Hely.

[12] Court: Hely.

Mr. He ty: and I don’t purport to interfere with, or attempt

to represent the Justices of the Court, Your Honor, simply as

an intervenor, or as amicus to the Court making clear the

District Attorney’s position in the underlying criminal action.

And, that was before the trial judge, and before this Court to-

day, that we do not oppose the presence of the press in this

case. We are fully aware of the statute, Chapter 278, Section

16A. And the interests that we identify primarily are the in-

terests of persons under eighteer. who are victims of sex crimes,

or as so labeled in the statute. And a special privacy interest in

those persons, which according to the statute, outweigh the

normal rights of the defendant to a public trial and the normal

rights of the public to have access to those trials. And in these

special circumstances they outweigh. But our position before

the trial judge, and it is before this Court, that in some circum-

stances a trial judge, when the defendant is asserting his right

to a constitutional, public trial, a trial judge may consider that

as outweighing the otherwise legitimate statutory interests,

particularly where the Commonwealth on behalf of the vic-

tims, and this is literally on behalf of the victims in the sense

that they were consulted fully by the prosecutor in this case.

The Commonwealth waives whatever rights it may have to ex-

clude the press. The constitutionality of the statute, we are

not seeking to undermine in [12] any sense. We are simply

seeking to have a fair trial in this case in which the guilty per-

son can be found guilty if he is guilty. And the fair trial can

proceed without error in the record to subject the Common-

wealth and the victims to a new trial. And we also wanted to

make it clear here this morning that the victims have been held

for trial, the three victims, ages 15, 16, and 17, have been held

in the courthouse, held for trial since April 17th and today, I

16a

think, is the eighth day where we are ready to impound. We

have had a long series of pretrial motions in which the victims

have testified, been subjected to a lot of cross-examination,

and it is an extremely high level of anxiety and emotional stress

on these people. And, the Commonwealth just simply seeks to

go forward today and not have a stay in this case, regardless of

your determination of the correctness of the trial judge's ruling

we ask that it be a prompt determination one way or the other.

And we simply wanted the Court to know that we didn’t op-

pose the access to the press in this case.

Court: Thank you, Mr. Hely. Before we hear from Ms. Bots-

ford, I would like to also inquire . . . I have not gotten a proof

of service here . . . Oh, I do have affidavit of notice, delivery to

the Attorney General. But, you said notice was given to the

defendants here?

Mr. McHucu: It was by telephone, Your Honor.

Court: Telephone notice.

[14] Mr. McHucu: We, also, yesterday afternoon called

the Clerk of the Norfolk Superior Court to inform her that the

action was pending here with a request to so notify the defend-

ant in the event that we weren't able to reach them, but we

did reach them last night.

Court: All right, thank you.

Mr. Hery: But the defendants, I think, were also under

direct order from Judge Muikern to be there today at 10:00 in

Dedham, ready for the Judge’s final ruling on the motion to

suppress and possibly an impoundment this morning. So, I

can understand their absence here today.

Court: I understand. All right, Ms. Botsford.

Ms. Botsrorp: Your Honor, I have a memorandum here,

which I can give to you.

Court: Go ahead.

Ms. Botsrorp: Your Honor, Judge Mulkern opposes any

reversal of his order precluding the press from the trial on sev-

17a

eral grounds. First, as he interprets Section 16A, it requires

the exclusion of the press. Second, even if the Court should

. this Court should find that it is not a mandatory exclu-

sion, he would exercise his discretion and require the exclusion

of the press, because he thinks that the rights of the minor vic-

tims here demand . . . the rights of privacy demand protec-

tion. We believe that if Section 16A is construed to require, or

at least to [15] authorize in a Judge’s discretion the exclusion of

the press, it is constitutional. It does not violate the First

Amendment Rights of the press, nor the Sixth Amendment

Rights of the defendant. We also contend that the press does

not have standing to raise the rights of the defendant to a

public trial under the Sixth Amendment.

[24] Court: I am not disposed to postpone decision here.

As I understand it, it was scheduled to go on with the selection

of the jury today. Now, I have been informed that Judge Mul-

kern has put that off until tornozrow.

Ms. Borsrorp: Oh.

Court: So Ghat we exe ast ender on pastiede: on -

Ms. Borsrorp: When I spoke to him he said he would wait

until 11:00, but I guess he has pushed it back some more.

Court: Well, this is all the information . . . just a report. . .

Ms. Borsrorp: Right. It is later than when I spoke to him.

Court: But, either way I am not disposed to . . . I mean

this thing . . . Obviously, they are trying to expedite the trial of

that case. And I think it can go forward either with, or with-

out the press and I am not disposed to delay things. So, I am

getting ready to. . . I've been reading your memorandum, so I

won't be accused of denying the Commonwealth a hearing. I

am getting ready to. . . I think I am going to decide this before

I leave the bench. So, I don’t need that . . . I do want to get

18a

some help from Mr. McHugh on what he has to say about De-

pasquale. Have I correctly [25] inferred what that is about?

Mr. McHucu: You have, Your Honor. But, that case, as

Your Honor correctly observed, involved the defendant who

wanted things closed, and it only dealt with pretrial proceed-

ings...

Court: Pretrial?

Mr. McHucu: It has nothing to do with the trial itself.

Court: Now, in the case before us, we are talking about

the trial itself, exclusively. There is no problem . . . The stat-

ute, in terms, talks about trial and does not seem to say any-

thing about pretrial.

Mr. McHucu: That is correct, Your Honor. And we have

intentionally not raised here any issues about pretrial . . .

Court: I mean it might well be read that the trial is a

whole process and the pretrial proceedings are a part of it.

But, on its face, it just says trial. And that is what we are talk-

ing about here is trial.

Mr. McHucu: That is correct.

Court: All right.

Mr. McHucnu: On another day we might be back to visit

with you...

Court: But, I am right that the New York Court of Appeals,

is that who it was in Depasquale .. .

Mr. McHucu: Depasquale. That is correct. The Court of

Appeals for the State of New York.

Court: This is all not memory, but inference . . .

[26] Mr. McHucu: Well, basically. . .

Court: ... That I just associate Gannett Co. with upstate

New York.

Mr. McHucu: Let me tell you briefly what happened, if

Your Honor would like me to.

19a

[27] Mr. McHucu: One other point that was raised, Your

Honor. The objection of the defendants to the cloture of these

hearings is incorporated in the transcript, which is attached to

the complaint. And on the last page of the transcript the de-

fendant asks that his objection to the Court’s order closing the

proceedings be noted.

Court: I think I had seen that, but I . . . Who is counsel for

the...

Mr. McHucu: Mr...

Court: Mr. Peters is it?

Mr. McHucn: Peters.

Court: Because 1. . . It says, “Mr. Peters: Would Your

Honor note the defendant’s exception to so much of Your

Honor’s ruling as excludes the general public and the press

from the trial in this case? Court: You have made your ex-

ceptions.” So, I think that supports your point.

[29] Court: Thank you. I do think that this is one which I

ought not to take time to write a great essay about. I propose

to go through the issues right now and dispose of this. What I

rule on the [30] law is not likely to conclude the matter. These

are large issues which are dealt with at a higher level. But we

do have to decide what is to happen on this particular case.

First as to the statute, it is mandatory in its terms. But, I don’t

. . » I think I have to decide whether it is utterly mandatory so

that it overrides the desires of everybody, prosecutor, victims,

defendants, judge and so forth, because even if you allow some

room for waiver by the defendant and the prosecutor, I think

the Judge must have some discretion as to what he will do with

that. And, I am not in the position here to say that he abused

such discretion as he had, because, obviously, he had been

20a

through a number of proceedings with respect to this case,

which are entirely a closed book to most of us who are here this

morning. So I think we are confronted with the constitutional

issue. My reading of the First Amendment cases on this is that

if you once open a trial there is no such thing as opening it part

way. Once you have opened it, it is opened all the way. And

the only way to avoid complete publicity is to close the hear-

ing. Now, you can close it and still allow certain people in,

obviously the people who have to be there. And apparently,

our court has said you can bring in relatives and friends of the

defendant. I cannot believe that giving the Judge some discre-

tion in matters of this kind violates the First Amendment any-

more than an order for the sequestration of witnesses violates

the First Amendment. I don’t understand [31] that a news-

paper reporter is anything but another citizen who . . . and

there is no such thing as having a status conferred by law by

being employed by a newspaper or by some other . . . one of

the public media that any citizen is free to write a book, fill

out a handbill, circulate it, publish it, put it on a plaque and

publicize it. And he has just as much right as any newspaper

reporter. Now, .. . I’m leaving aside the question whether

there may be a difference between the relatives and friends of

the defendant and members of the public generally. I suppose

you can be admitted ... For example, a lawyer may be ad-

mitted to a proceeding on some understanding that he, at

least, will not become a newspaper reporter. So, I don’t think

the First Amendment point is made out. If there is a require-

ment under the First Amendment of having a hearing, it seems

to me that probably that was satisfied. Although rather sum-

marily satisfied when the Judge did hold a hearing on the

question of whether the Globe should be permitted to inter-

vene. I take it, not a great deal of argument was permitted on

that. But, it is not clear to me that much had to be said. So,

that brings us to the Sixth Amendment right. And I must say,

2la

I find that the most troublesome part of this. And what I say

will not conclude the matter. And, I take it this is where the

District Attorney is in a rather difficult situation here. If this

case goes forward over the defendants’s objection and excep-

tion as a closed trial and that turns out at some later date [32]

to have been an error, the trial may turn out to be a wasted ex-

ercise which will have to be done over again. And, what I say

today isn’t going to have any effect on that, because I don’t

think even though the defendant has been notified of these

proceedings, I don’t think he can be thought to be a party in

the sense that he would be bound by any ruling that I would

make. And that of all this is, that I am not going to interfere

on an interlocutory basis with the ruling of the trial judge. My

power to do so, under Chapter 211, Section 3, is a power

which exists only when no other remedy is provided. And the

defendant, a least, has a remedy by appeal. I don’t want to

try and advise the Clobe Newspaper Co. as to whether they

have any other remedy, but I am doubtful about their stand-

ing to raise the Sixth Amendment issue. So the result will be

that this petition will be denied. The Court will be in recess.

——~ THE END OF TAPE —

22a

COMMONWEALTH OF MASSACHUSETTS.

SUFFOLK, SS. SUPREME JUDICIAL Court

For SuFFOLK CouNTY

No. 79-191 Crvit

THE BOSTON GLOBE

bv.

THE SUPERIOR COURT FOR THE

COUNTY OF NORFOLK

Order

This case came before the Court on the plaintiff's petition

for extraordinary relief pursuant to G. L. c. 211, § 3.

There was argument by counsel for the plaintiff and by the

assistant attorney general. The assistant district attorney

made a statement to the Court on behalf of the prosecution in

the underlying criminal matter.

Upon consideration thereof, it is ORDERED that the peti-

tion be, and it is hereby, denied.

By THE Court (BraucHenr, J.)

Joun E. Powers,

Enterep: April 26, 1979 CLERK.

A true copy.

Attest:

4-27-79 Jean M. KENNETT

Asst. Clerk.

23a

COMMONWEALTH OF MASSACHUSETTS.

SUFFOLK, ss. SUPREME JupiciaAL Court

For SuFFOLK CouNTY

No. 79-191 Crvit

THE GLOBE NEWSPAPER

vs.

THE SUPERIOR COURT FOR THE

COUNTY OF NORFOLK

Judgment

This case came on for hearing before the Court, Braucher,

J. presiding, and the issues having been duly heard and an

order entered,

It is ORDERED and ADJUDGED,

that the petition be, and it is hereby, dismissed.

Dated at Boston, Massachusetts, this seventh day of May,

1979.

Joun E. Powers

Clerk of Court

A true copy.

Attest:

Joun E. Powens,

Clerk of Court

May 8, 1979

24a

COMMONWEALTH OF MASSACHUSETTS.

SUPREME JupiciaL Court FoR THE COMMONWEALTH,

At Boston, February 26, 1980

IN THE CASE No. SJC- 1825

GLOBE NEWSPAPER COMPANY

vs.

SUPERIOR COURT

pending in the Superior Court for the County of Norfolk No.

79-191

Orvenen, that the following entry be made in the docket;

viz., —

Appeal dismissed in accordance with the opinion.

By THe Court,

Patrick J. Hurtey, Clerk.

February 26, 1980

See opinion on file.

25a

SUPREME JUDICIAL COURT

GLOBE NEWSPAPER COMPANY

vs.

SUPERIOR COURT

Suffolk. October 9, 1979. — February 26, 1980.

Present: Hennessey, C.J., Quauco, Kaptan, Wizsins, Liacos, Asnams, JJ.

Civit action commenced in the Supreme Judicial Court

for the county of Suffolk on April 25, 1979.

The case was heard by Braucher, J.

James F. McHugh (Janis M. Berry with him) for the

plaintiff.

Mitchell J. Sikora, Jr., Assistant Attorney General (Allen

B. Sherr, Assistant Attorney General, with him) for the de-

fendant.

Marguerite M. Dolan, for the Greenfield Recorder, ami-

cus curiae, submitted a brief.

James C. Heigham, for the Massachusetts Newspaper

Publishers Association, amicus curiae, submitted a brief.

Thomas G. Simons, District Attorney, & Stephen R.

Kaplan, Assistant District Attorney, for the District Attor-

ney for the Northwestern District, amicus curiae, submitted

a brief.

Liacos, J. On April 25, 1979, the plaintiff, Globe News-

paper Company (Globe), petitioned a single justice of this

court for extraordinary relief pursuant to G. L. c. 211, § 3.

The petition challenged the April 25, 1979, order of a trial

judge of defendant Superior Court, who acted under the au-

thority of G. L. c. 278, § 16A, to close a criminal trial to the

general public. The judge had denied the Globe's motion to

26a

intervene and had denied the Globe’s motion for a hearing

and motion to revoke the order concerning exclusion of the

press. Thus, the Globe sought from the single justice a tem-

porary restraining order and permanent injunction ordering

the judge to permit members of the press to attend the trial

and related proceedings. On April 26, 1979, as the jury in

the criminal trial were being empanelled, a single justice

conducted a hearing on the Globe’s petition and denied it

after stating orally his reasons for his decision. A judgment

was entered on May 7, 1979.' The Globe appeals. Mass.

R.A.P. 1 (b), 365 Mass. 844 (1974).

During the pendency of this appeal, the criminal trial

proceeded to its conclusion. Thus, the issue raised before

the single justice is now moot, and the appeal from his judg-

ment must be dismissed. The issues raised by this record,

however, are significant and troublesome, and are “capable

of repetition yet evading review.” Southern Pac. Terminal

Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515

(1911); Gannett Co. v. DePasquale, U.S. :

(1979).* We deem it appropriate therefore to express our

views on the issues argued. Wellesley College v. Attorney

Gen., 313 Mass. 722, 731 (1943). In so doing, we consider

matters now part of the record, but which were not put be-

fore the single justice.

Although neither the single justice nor this court is com-

pelled to take the allegations in the Globe’s petition as true,

we may do so in light of the circumstances that the Com-

monwealth did not file an answer, Mass. R. Civ. P. 8 (d),

365 Mass. 749 (1974), and that the facts alleged in the peti-

tion are not disputed. The petition shows that on or about

April 19, 1979, the Superior Court in the County of Norfolk

commenced hearings with respect to preliminary motions in

the case of Commonwealth vs. Albert Aladjem, Norfolk Su-

‘The opinion of the United States Supreme Court in Gannett Co. v.

DePasquale, U.S. (1979) (99 S. Ct. 2898 [1979]), had not been

given at the time of the hearing before the single justice.

*99 S. Ct. 2898, 2904 (1979).

27a

perior Court, No. 73102-9. The court caused a sign marked

“closed” to be placed on the courtroom door, and court per-

sonnel turned away people seeking entry.* After failing to

gain entry on April 24, 1979, counsel for the Globe on April

25 attempted to file with the court the motion to intervene

and the other two motions. At the commencement of pro-

ceedings before the court, the judge ruled that he would not

accept the Globe’s motions as being proper for filing. With-

out holding a hearing and without argument of counsel, the

judge ordered that the trial be closed and the press and gen-

eral public excluded. Counsel for the defendant objected to

the closure order, and the assistant district attorney stated

that the Commonwealth did not request closure.

The transcript of the hearing before the judge is annexed

to plaintiff’s petition. It reveals that the Aladjem case in-

volved three girls, ages sixteen, sixteen and seventeen at the

time of trial. The indictments contained allegations of for-

cible rape and forced unnatural rape. The judge ruled that

G. L. c. 278, § 16A, requires closure. He stated, “This rul-

ing and Order results from a reading of the statute and from

the feeling of the Court that a child-victim of an alleged sex-

ual attack is entitled minimally to at least the same protec-

tion that a child-defendant in a case involving sexual mat-

ters has.”

At the April 26 hearing before the single justice, the

Globe and the Attorney General appeared. The assistant

district attorney also appeared and stated: “[{W)here the de-

fendant is asserting his right to a constitutional, public trial,

a trial judge may consider that as outweighing the otherwise

legitimate statutory interest, particularly where the Com-

monwealth on behalf of the victims, and this is literally on

behalf of the victims in the sense that they were consulted

fully by the prosecutor in this case. The Commonwealth

waives whatever rights it may have to exclude the press.”

* Court personnel later told some members of the press that they could

enter during the preliminary hearings. y one reporter did

enter, but the judge told him that he should not publish information ro-

ceived at the hearing.

28a

In a supplemental statement, the parties stipulated to

facts concerning events after the April 26 hearing. In an

April 30 conference with the trial judge, the assistant dis-

trict attorney represented that she had spoken with the

three victims about the presence of the press in the court-

room; the victims stated that they would not object to inclu-

sion of the press if the press promised not to print any per-

sonal data about them, photograph them, or attempt to in-

terview them. On May 10, 1979, following a jury trial, the

defendant Aladjem was found not guilty.

The Globe argues that the single justice erred in denying

its petition, claiming that G. L. c. 278, § 16A, did not au-

thorize the judge to exclude the press from the Aladjem

trial. This argument relies not only on statutory language

and purpose, but also the principle that a statute should be

construed to avoid constitutional doubts. We agree in part

that the order closing the entire trial was in error. The

Globe also raises several constitutional issues. The Globe

contends that the First Amendment to the Constitution of

the United States and art. 16 of the Declaration of Rights to

the Constitution of Massachusetts protect the right of the

public and press to be present during the conduct of crimi-

nal trials. In particular, the Globe argues that G. L. c. 278,

§ 16A, is overbroad and was applied unconstitutionally in

this case. Also, the Globe maintains that the trial court’s

failure to hold a hearing on the closure issue violated the

Globe's rights to due process of law. Finally, the Globe

argues that the Sixth Amendment creates a right in the pub-

lic to attend criminal trials. We reach only some of these

questions today.?

? Indeed, the single justice could have refrained trom deciding any issue

on the merits. Ordinarily, we will exercise our jurisdiction under GC. L.

c. 211, § 3, only “if no other remedy is expressly provided.” Here it is

arguable that the Globe might have sought a declaratory judgment that

G. L. c. 278, § 16A, does not authorize exclusion of the press, and that

even if it does, the statute violates the First and Sixth Amendments to the

29a

1. The Globe argues that G. L. c. 278, § 16A, is ambigu-

ous and is unconstitutional. Before we can turn to these

constitutional arguments, we must construe G. L. c. 278,

§ 16A, in light of the asserted ambiguity.‘ See Bellotti v.

Baird, U.S. , 1.24(1979);> Poulos v. New Hamp-

shire, 345 U.S. 395, 402 (1953). In considering the claimed

ambiguity, we are mindful of two principles of statutory

construction. First, “[w]Jords or phrases in a statute are to

be given their ordinary meaning. They are to be construed

according to their natural import and approved usage.”

Burke v. Chief of Police of Newton, Mass. ,

(1978). “[T]he statutory language itself is the principal

source of insight into the legislative purpose... . [WJhere

the language of the statute is plain and unam'>iguous, . . .

legislative history is not ordinarily a proper source of con-

struction.” Hoffman v. Howmedica, Inc., 373 Mass. 32,

(1977).2 However, “[i}f the language of a provision is

unclear, a court may look to outside sources for assistance in

1 -/e eee 16 of the Declaration of Rights. GC. L.

c. 231A.

However, we think the single justice was correct in hearing this matter

in view of the doubts concerning the practicality of an alternative remedy

in the circumstances, and in view of the significant public issues raised by

the petition. We state our views fur similar reasons. See Ottaway News-

papers, Inc. v. Appeals Court, 372 Mass. 539, 550-551 (1977).

*General Laws c. 278, § 16A, reads as follows: “ At the trial of a com-

plaint or indictment for rape, incest, carnal abuse or other crime involv-

ing sex, where a minor under eighteen years of age is the person upon,

with or against whom the crime is alleged to have committed, or at

the trial of a complaint or indictment fer getting a woman with child out

of wedlock, or for the non-support of an illegitimate child, the presiding

justice shall exclude the public from the court room, admitting

only such persons as may have a direct interest in the case.” As to the con-

stitutionality of the “begetting” statute, C. L. c. 273, § 11, see Common-

wealth v. MacKenzie, 368 Mass. 613 (1975). General Laws c. 273, § 11,

was subsequently repealed by St. 1977, c. 848, § 7.

>99 S. Ct. 3035, 3049 n.24 (1979).

4 Mass. Adv. Sh. (1977) 1488, 1493.

30a

determining the correct construction.” Rosenbloom v.

Kokofsky, 373 Mass. 778, (1977).*

We consider three possible ambiguities in G. L. c. 278,

§ 16A. First, to what part or parts of a judicial proceeding

does the locution, “At the trial . . . the presiding justice

shal) exclude the general public,” refer? Second, is the

word, “shall” used in a mandatory or directory sense?

Third, are members of the press “persons” with “a direct in-

terest” in the case? The Globe urges that the latter two

questions mark ambiguities in the statute, and it is at least

clear that the language “a direct interest” has required con-

struction in the past. Commonwealth v. Marshall, 356

Mass. 432 (1969). Commonwealth v. Blondin, 324 Mass.

564 (1949), cert. denied, 339 U.S. 984 (1950). Because

neither party has recognized the ambiguity underlying our

first question, we take time to explicate it here.

The word “trial” is itself ambiguous. In determining the

meaning of a word in a statute, we look to its ordinary lex-

ical meaning. Burke v. Chief of Police of Newton, supra.

“Rather than using terms in their everyday sense, ‘(t]he law

uses familiar legal expressions in their familiar legal sense.’”

Bradley v. United States, 410 U.S. 605, 609 (1973) (citation

omitted). In its legal definition of “trial,” Webster's New

International Dictionary 2705 (2d ed. 1959) suggests that

the term has several senses: “In a general sense trial includes

all proceedings from the time when issue is joined, or more

usually when the parties are called to try their case in court,

to the time of its final determination; in criminal law the

term trial is, however, generally restricted to proceedings

subsequent to swearing in the jury.” This range of mean-

ings also appears in Black’s Law Dictionary 1675 (rev. 4th

ed. 1968). Despite the dictionaries’ suggestion that “crimi-

nal trial” should be defined restrictively, our older cases

have endorsed a definition of “trial” as “the examination

before a competent tribunal, according to the laws of the

land, of the facts put in issue in a cause, for the purpose of

* Mass. Adv. Sh. (1977) 2534, 2537.

3la

determining such issue.” Commonwealth v. Soderquest,

183 Mass. 199, 201 (1903), overruled on other grounds,

Commonwealth v. Penrose, 363 Mass. 677, 679-681 (1973).

This definition is broader than the lexical definition. Fact-

finding hearings may occur before the jury are empanelled.

A hearing to determine whether there is probable cause to

bind a defendant over for trial is an example. It is not clear

whether a hearing on a motion to suppress would constitute

“examination . . . of the facts put in issue in a cause.” Cf.

Commonwealth v. Soderquest, supra (arraignment is not

trial). According to our cases’ definition, then, the distinc-

tion between “trial” and “pretrial” is not plain. But com-

pare Mass. R. Crim. P. 13, 14, Mass. (1979), with

Mass. R. Crim. P. 19,20, | Mass. (1979). The recent

disagreement among members of the United States Supreme

Court concerning the applicability to a motion to suppress

of the word “trial,” appearing in the Sixth Amendment, is

further evidence that the distinction is blurred. See Gan-

nett Co. v. DePasquale, supra. Indeed, it is not clear that

the “trial” necessarily encompasses all events occurring

after the jury are empanelled. For example, a side bar con-

ference, a hearing of legal arguments, or a voir dire hearing

held in the absence of the jury to determine the admissibility

of evidence may not meet the Soderquest definition. Thus,

“trial” has no single, irresistible interpretation.

Even if we assume that “trial” has an unambiguous

meaning, the sentence, “At the trial . . . the presiding jus-

tice shall exclude the general public,” is still ambiguous.

“At the trial” is ambiguous, for “At” may mean “through-

out,” but it may also mean “at some time in” or “during

parts of.” Thus, the legislative order, “At the trial the pre-

siding justice shall charge the jury,” would not imply that

the charge should continue throughout the entire trial. On

the other hand, “At the trial the presiding justice shall main-

tain order in the court room” would apply throughout. The

meaning of the sentence varies with the nature of the act

which the judge is ordered to do. Certain acts, such as a

jury charge, occur once and within a limited time. Others,

32a

such as maintaining order, are continuous. And some acts,

such as excluding the general public, can logically occur at

many stages of the trial. Thus, even if “trial” has a definite

signification, neither the words of the statute alone nor the

nature of the act commanded settles whether G. L. c. 278,

§ 16A, requires partial or wholesale closure.

2. In order to resolve the ambiguities in GC. L. c. 278,

§ 16A, we must first consider whether any principles of stat-

utory construction should influence our analysis. At least

two such principles exert pressure in this case. It is well-

established that a “statute must be construed, if fairly possi-

ble so as to avoid not only the conclusion that it is unconsti-

tutional but also grave doubts upon that score.” United

States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916) (Holmes,

J.). Accord, Commonwealth v. King, Mass. :

(1977);' Alegata v. Commonwealth, 353 Mass. 287, 290

(1967); Worcester County Nat 7 Bank v. Commissioner of

Banks, 340 Mass. 695, 701 (1960); Ferguson v. Commis-

sioner of Corps. & Taxation, 316 Mass. 318, 323-324 (1944).

It is also well settled that a statute in derogation of the com-

mon law should be strictly construed, so long as the con-

struction is consistent with the statutory purpose. See

Hayon v. Coca Cola Bottling Co. of New England,

Mass. , - (1978);® Vallin v. Bondesson, 346 Mass.

748, 753 (1964); Houghton v. Dickinson, 196 Mass. 389, 391

(1907).

(a) The Globe raises several questions about the constitu-

tionality of excluding the press from a criminal trial. In the

face of those arguments and the United States Supreme

Court’s uncertain posture on the issues, see Richmond

Newspapers, Inc. v. Virginia, Va. __, decided July 9,

1979, which recently has been argued before the Supreme

Court on appeal; Gannett Co. v. DePasquale, supra, we

seek to shrink the region of possible constitutional doubts

‘Mass. Adv. Sh. (1977) 2636, 2647.

® Mass. Adv. Sh. (1978) 1888, 1893-1894.

» 46 U.S.L.W. 3178 (No. 79-243) (appeal filed 8/14/79).

33a

about G. L. c. 278, § 16A. Nevertheless, a number of

reasons counsel against our deciding those questions today.

We take care to point out that, even if we chose to decide

the constitutional questions here presented, the question

whether the State’s interests outweigh a defendant’s Sixth

Amendment right to a public trial would in no way be

before us; the defendant is not before this court. Further-

more, instead of deciding the moot issues of the Globe's

First and Sixth Amendment rights, we await the United

States Supreme Court’s decision in Richmond Newspapers,

Inc. v. Virginia, supra. Nor do we reach the question of

press or defendant rights under the State Constitution. The

Globe’s contentions relying on art. 16 were not adequately

argued in plaintiff’s brief. Mass. R.A.P. 16 (a) (4), 365

Mass. 860 (1974). Indeed, the Globe’s brief relegates the

Constitution of this Commonwealth to one cursory, con-

clusory footnote. See Beaton v. Land Court, 367 Mass. 385,

389, appeal dismissed, 423 U.S. 806 (1975). As for State

constitutional rights analogous to those arguably available

under the Sixth Amendment, the Globe’s brief is silent, and

our Constitution is unclear, about the right to a public trial.

Finally, we decline to reach the constitutional questions

because “[a] court will ordinarily ‘not pass upon a constitu-

tional question although properly presented by the record,

if there is also present some other ground upon which the

case may be disposed of .... Thus, if a case can be de-

cided on either of two grounds, one involving a constitu-

tional question, the other a question of statutory construc-

tion or general law, the Court will decide only the latter.’”

Fazio v. Fazio, Mass. , (1979).' See Common-

wealth v. Gustafsson, 370 Mass. 181, 186 (1976). We can

decide the present case on nonconstitutional grounds.

Therefore, we do so. Also, because our second principle of

construction — that statutes in derogation of the common

law should be strictly construed — argues for a construction

favoring publicity, our result minimizes constitutional

'Mass. Adv. Sh. (1978) 1539, 1553.

34a

doubts about G. L. c. 278, § 16A. Although we do not

squarely reach the constitutional questions raised today, we

believe that the principles of construction we adopt bring us

to a conclusion which approximates the results urged upon

us by the Globe on constitutional grounds.’ We turn to con-

sideration of the relationship between G. L. c. 278, § 16A,

and the common law.

(b) Public trials have been the rule at common law since

the Anglo Saxons conducted their trials “like an ill-managed

public meeting.” F. Pollock, The Expansion of the Com-

mon Law 30 (1904). In re Oliver, 333 U.S. 257, 266 (1948).

See generally Gannett Co. v. DePasquale, US. ;

- n.15 (1979).) Id. at - * (Blackmun, J., dis-

senting). Although in 1884 Mr. Justice Holmes’ famous dic-

ta stated some of the reasons for the rule, Cowley v. Pulsi-

fer, 137 Mass. 392, 394 (1884),® this long established

precept, so imbedded in our practice, required no explica-

tion until 1949. In Commonwealth v. Blondin, 324 Mass.

at 569-570, while sustaining GC. L. c. 278, § 16A, against a

due process attack, we noted “the universal practice of our

courts, especially in criminal cases, to keep the doors open,

except as otherwise provided by statute.”

Public trials protect against systematic use of the courts as

instruments of political and religious persecution. In re

Oliver, supra at 268-270. Publicity prevents abuses of a

single judge’s power. Id. at 270-271. See 1 J. Bentham,

Rationale of Judicial Evidence 524 (J.S. Mill ed. 1827). The

pressure of public scrutiny may deter witness perjury: Com-

*This approximate parellelism extends not only to the substantive doc-

trine, but also to procedural safeguards. See section 5 infra.

199 S. Ct. 2898, 2908-2909 n.15 (1979).

99 S. Ct. at 2925-2930 (1979).

*“It is desirable that the trial of causes should take place under the

public eye, not because the controversies of one citizen with another are of

public concern, but because it is of the highest moment that those who ad-

minister 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.”

35a

monwealthyv. Bohmer, Mass. , n.14(1978),' and

may engender confidence in court officials. Gannett Co. v.

DePasquale, | aa (1979)™ (Blackmun, J., dis-

senting). Open trials may also induce members of the public

to come forward with new testimony or other evidence.

Commonwealth v. Bohmer, supra at n.14.". Other

benefits of publicity are more abstract. As the audience of

the courts’ struggle to do justice, the public learns how

courts work and may suggest how courts can improve. At

the same time, the public experiences the drama of justice

being done. Like theater, the judicial drama teaches the

audience not to make the participants’ mistakes — it deters

criminal misconduct — and permits a catharsis — a sense

that wrongs have been righted.’ Thus, the common law

practice of open criminal trials improves the quality of jus-

tice done in the courts and binds the courts more closely to

the society they serve. General Laws c. 278, § 16A, was en-

acted against the background of the common law tradition,

and that is why we said in Commonwealth v. Blondin,

' Mass. Adv. Sh. (1978) 316, 330 n.14.

™99 S. Ct. 2898, 2931 (1979).

"Mass. Adv. Sh. (1978) at 330 n.14.

“(Bly publicity, the temple of justice adds to its other functions that of

a schooi: a school of the highest order, where the most important branches

of morality are enforced by the most impressive means: a theatre, in

which the sports of the imaginatio. give place to the more interesting ex-

hibitions of real life. Sent thither by the self-regarding motive of curiosi-

ty, men imbibe, without intending it, and without being aware of it, a

disposition to be influenced, more or less, by the social and tutelary

motive, the love of justice. Without effort on their own parts, without ef-

fort and without merit on the part of their respective governments, they

learn the chief part of what little they are permitted to learn (for the

obligation of physical impossibility is still more irresistible than that of

legal prohibition), of the state of the laws on which their fate depends.”

1 J. Bentham, supra at 525. See Note, Trial Secrecy and the First

Amendment Right of Public Access to Judicial Proceedings, 91 Harv. L.

Rev. 1899, 1906-1909 (1978). See also Note, The Right to Attend Crimi-

nal Hearings, 78 Colum. L. Rev. 1308, 1323 (1978). On the purpose of

the criminal law to foster legal and moral responsibility in the citizenry,

see generally Hart, The Aims of the Criminal Law, 23 Law & Contemp.

Prob. 401 (1958).

36a

supra at 571: “It is to be strictly construed in favor of the

general principle of publicity.”

3. Recognizing the power of the principles favoring

publicity, we must identify the precise interests that over-

matched the common law rule and thereby justified C. L.

c. 278, § 16A, in the Legislature’s eyes.* In Blondin, supra

at 571, we considered the Legislature’s purpose in enacting

G. L. c. 278, § 16A. “Doubtless it was thought that female

witnesses in particular could come forward, institute com-

plaints, and testify with less reluctance, so that more justice

would be accomplished if they could be relieved froro the

inhibitions imposed by the presence of a curiosity impelled

audience.” Although this formulation is generally correct,

it does not put the matter strongly enough.

Originally enacted in St. 1923, c. 251, with the title “An

Act to protect witnesses under the age of seventeen at trials

for certain crimes,” the statute was designed “for the pro-

tection of minors from the vulgar and obscene and from

public degradation.” 1923 House Doc. No. 1349. In

St. 1931, c. 205, the statute was revised as part of a com-

prehensive reexamination of the treatment of children in the

Commonwealth. 1931 House Doc. No. 1200. The Special

Commission Established to Investigate the Laws Relative to

Dependent, Delinquent and Neglected Children, and Chil-

dren Otherwise Requiring Special Care stated the statutory

purpose: “To spare girls of juvenile age the embarrassment,

humiliation and demoralization of testifying to all the sor-

*“If the statute, because it modifies the common law, is to be strictly

construed, yet the construction adopted should advance, rather than

defeat, the purpose of the Legislature.” Houghton v. Dickinson, 196

Mass. 389, 391 (1907). The Legislature, of course, has power to create ex-

to the rules of common law, New Bedford Standard Times

Publishing Co. v. Clerk of the Third Dist. Court of Bristol, Mass. ,

- (1979) (Mass. Adv. Sh. [1979] 515, 522-523), and the common

law itself provided for exceptions to the rule of publicity. See Common-

wealth v. Blondin, 324 Mass. 564, 571-572 (1949), cert. denied, 339 U.S.

984 (1950). Thus, we said in Ottaway Newspapers, Inc. v. Appeals

Court, 372 Mass. 539, 546 (1977): “These statutes do not preclude the ex-

ercise by judges of a sound discretion to impose reasonable cloture, in-

cluding impoundment, in other cases when found necessary.”

37a

did details of rape, incest, carnal abuse or other crime in-

volving sex, incidental to open trial with examination and

cross-examination.” Id. at 90.

This legislative history reveals that G. L. c. 278, § 16A,

stands at the nexus of two overlapping strands of policy; the

Legislature wished to shield certain victims of sex crimes

from the difficult experience of testifying in public;* and the

Legislature joined this solicitude for victims with the broad,

paternal protection afforded children generally.'° The rape

victim’s ordeal in court has been well documented." It

*Since GC. L. c. 278, § 16A, was enacted, the Commonwealth has

demonstrated sensitivity for the rape victim's plight in other ways. G. L.

c. 41, § 97B (rape victim reporting, prosecuting and counseling services);

G. L. c. 41, § 97D (reports of rape and attempted sexual assault must be

kept confidential); GC. L. c. 233, § 21B (limiting admissibility of evidence

ee See also Commonwealth v.

Gibbons, Mass. - &n.11 (1979) (Mass. Adv. Sh.

[1979] 2168, 2170-2171, 2177- 2178 & n. 11).

subjects of litigation. See e.g., G. pre ih c. 119, § 60A (juvenile court records

not open to public inspection); G. L. c. 119, § 65 (excluding public from

juvenile court sessions). See also G. L. c. 119, § 60 (limiting uses of delin-

quency adjudication) held unconstitutional in part in Commonwealth v.

Ferrara, 368 Mass. 182 (1975); G. L. c. 210, § 5C (records of adoption

proceedings must be segregated); G. L. c. 276, § 100B (juvenile probation

and court records may be sealed after three years from final entry).

Generally, the purpose of these statutes is to prevent stigmatization of

minors and to encourage rehabilitation. Seo qunssally Fates Comm’ of

Boston v. Municipal Court of the Dorchester Dist., Mass.

» + (1978) (Mass. Adv. Sh. [1978] 685, 699-700, 719-721). In

the case of a juvenile defendant, the com of those purposes is

strong. In the case of the innocent victim of a sexual assault, the obliga-

tion not to aggravate her injuries is very strong indeed.

"E.g., J. Bode, Fighting Back, ch. 7 (1978); L. Brodyaga, M. Gates,

S. Singer, M. Tucker & R. White, Rape and its Victims: A Report for

Citizens, Health Facilities, and Criminal Justice Agencies, chs. 8-9 (1975)

LEAA Report); E. Hilberman, The Rape Victim, chs. 2, 7, 8

(1976); L. Holmstrom & A. Burgess, The Victim of Rape, chs. 6-8 (1978);

S. Katz & M. Mazur, Understanding the Kape Victim, chs. 12, 14, 15

(1979); J. MacDonald, Rape, 128-130 (1971); C. Bohmer, Judicial Atti-

tudes Toward Rape Victims (D. Chappell, R. Geis & G. Geis eds. 1977);

A. Burgess & A. Laszlo, When the Prosecutrix is a Child: The Victim

Consultant in Cases of Sexual Assault, in Victims and Society (E. Viano

ed. 1976); Libai, The Protection of the Child Victim of a Sexual Offense

38a

has been said that “[t]he court experience, for the rape vic-

tim, precipitates as much of a psychological crisis as the

rape itself.”'* In fact, the victim may feel that she has been

raped twice: once by the defendant and once by the crimi-

nal justice system."? A rape victim who anticipates humilia-

tion or embarrassment may choose not to come forward at

all, or, if she comes forward, may abandon her participa-

tion midway through the case.'* Even if she continues to

participate in the criminal process, she may become so dis-

tressed that she cannot testify effectively.

This is especially true for the child victim of rape. The

child’s delicate psyche has few resources to help it withstand

the trauma of sexual assault. Furthermore, “[i]t is general-

ly agreed by child psychiatrists that the degree of psychic

trauma is as much, or perhaps more, dependent on the way

that the child victim is treated after discovery than at the

time of the offense itself.”'* Even an adult victim con-

fronted with the criminal justice system is typically “fright-

ened, confused, and reticent.”'® For a child with only the

barest understanding of the purposes and procedures of a

trial, the act of giving evidence may be particularly difficult

and bewildering."

in the Criminal Justice System, 15 Wayne L. Rev. 977 (1969); O’Neale,

Court Ordered Psychiatric Examination of a Rape Victim in a Criminal

Rape Prosecution — Or How Many Times Must a Woman be Raped, 18

Santa Clara L. Rev. 119 (1978).

'*L. Holmstrom & A. Burgess, supra note 11 at 229.

9]. Bode, Fighting Back, ch. 7 (1978). L. Holmstrom & A. Burgess,

supra note 11 at 235-236.

.- Katz & M. Mazur, Understanding the Rape Victim, 197-198

(1979).

* Libai, supra note 11 at 980-981. See E. Hilberman, The Rape Vic-

tim, 53 (1976).

‘*LEAA Report at 105.

See A. Burgess & A. Laszlo, supra at note 11; C. Bohmer, supra note

11 at 166-168. J. MacDonald, Rape, 128 (1971).

39a

One of the most disturbing aspects of the trial for many

victims is testifying in public.'* The victim is often embar-

rassed to discuss intimate and painful matters before a

group of strangers. The victim may also fear that she will

be held up to public ridicule. A researcher has described

the experience of typical child victims: “[A] child is likely

either to be confused and frightened by the presence of

many persons, or impressed with this unusual opportunity

for enthralling a large audience with his stories. In both

cases the public’s presence may serve to interfere with the

child’s powers of recollection and narration. In addition,

psychiatrists have observed that ‘the victim naturally wishes

to avoid publicity, the embarrassment which accompanies

questioning by authorities, or courtroom experiences. Chil-

dren in particular are often profoundly disturbed by this

situation.’”'® Recognizing the problem, judges and com-

mentators have considered clearance of the courtroom dur-

ing the victim’s testimony.”

Thus, the purpose of G. L. c. 278, § 16A, is to encourage

young victims of sexual offenses to come forward; once they

have come forward, the statute is designed to preserve their

ability to testify by protecting them from undue psychologi-

cal harm at trial. See Commonwealth v. Leo, Mass.

; (1979).° In broader terms, the statute’s purposes

L. Holmstrom & A. Burgess, supra note 11 at 227; Libai, supra note

1] at 979.

'* Libai, supra note 11 at 1021 (footnote omitted). See E. Hilberman,

supra note 1i at 53; S. Katz & M. Mazur, supra note 11 at 199-200,

233-236.

*C. Bohmer, supra note 1] at 167. LEAA Report, c. VIII. England

and Israel give courts power to exclude the general public when a child

victim testifies. Israel, Sweden, and Denmark provide that a court of-

ficial should question the child privately for the prosecution and defense.

See generally Libai, supra note 11 at 986-1001; C. Bohmer, supra at 167.

So, too, a large number of the American States have excluded the public

to protect the child victim, either by judicial decision or by statute. See

Gannett Co. v. DePasquale, _—*US. at n.19 (99 S. Ct. at 2910

n. 19), for a partial listing of American authority.

®Mass. Adv. Sh. (1979) 2245, 2249.

40a

go beyond protection of juvenile privacy to encompass the

State’s interest in sound and orderly administration of

justice; most important, the statute helps obtain just convic-

tions for the types of crimes from which the victims had

often suffered at the hands of the criminal justice system,

while their assailants had often gone free. We now constrve

the statute in light of these purposes.

4. The first question that we must decide is whether the

language “At the trial . . . the presiding justice shall exclude

the general public” necessarily relates to closure of the en-

tire trial. We have shown the language in question to be

ambiguous, and our precedent does not illuminate the

point. The legislative history, though equivocal, tends to

favor a reading that the statute does not mandate closure of

the whole trial. Although the 1931 Special Commission Re-

port speaks of a “private hearing,” it does not exclude the

possibility that the hearing be private only in part. More-

over, the Report states the purpose of G. L. c. 278, § 16A,

as, “[t]o spare girls of juvenile ayy the embarrassment, hu-

miliation and demoralization «: testifying . . . incidental to

open trial” (emphasis supplied). 1931 House Doc. No. 1200

at 90. In light of the principles favoring publicity, we con-

strue the statute to relate to closure of the trial only during

the victim's testimony."

*! The language of G. L. c. 278, § 16C, added by St. 1978, c. 316, more

clearly states that the closure order may be for the entire trial or “during

those portions of such trial when direct testimony is to be presented.” We

think this 1978 phrasing not to be inconsistent with the view we take of

the earlier analogous statute (§ 16A). The Commonwealth implies that

G. L. c. 278, § 16A, mandates closing the entire trial. The Common-

wealth goes on to imply that in Commonwealth v. Leo, Mass. ,

- (1979) (Mass. Adv. Sh. [1979] 2245, 2248-2249), we held that

§ 16A mandatorily extends the right to a closed trial to the child victim

and to her alone. The Commonwealth concludes that the child may

make an intelligent and voluntary waiver of her right to full or partial

closure. gly, a trial judge should hold a hearing on the waiver

issue.

This argument misconceives our holding in Leo. We did not say that

the victim is the only person who possesses the right to a closed trial. We

said that the main purpose of the statute apparently was to protect the

4la

We next consider whether G. L. c. 278, § 16A, requires

closure of the trial during the victim’s testimony. The

Globe argues that the Legislature used the word “shall” in

G. L. c. 278, § 16A, in a directory, rather than a manda-

tory, sense. That is incorrect. Although “[t]he word ‘shall’

as used in statutes . . . is not of inflexible signification and

not infrequently is construed as permissive or directory in

order to effectuate a legislative purpose,” Swift v. Registrars

of Voters of Quincy, 281 Mass. 271, 276 (1932); see Myers v.

Commonwealth, 363 Mass. 843, 846 (1973), “[t]he word

‘shall’ . . . is commonly a word of imperative obligation

.. +.” Johnson v. District Attorney for the Northern Dist.,

342 Mass. 212, 215 (1961). “The general rule whereby

directions to public officers for the protection of public or

private rights are mandatory may be applied in a like man-

ner to directions to courts.” C. Sands, Sutherland Statutory

Construction § 57.16 at 439 (4th ed. 1973). Thus, the man-

datory construction appears preferable. Treating the stat-

ute as directory would frustrate its purposes. If she were

uncertain whether she would have to testify in public, a

young woman might choose not to cooperate with the police

and the prosecutor. She might be deterred from coming

forward at all.

Furthermore, legislative history is relevant to a determi-

nation whether a statute is mandatory or directory, and

“(t]he deliberate refusal of the General Court to adopt a

word which plainly would have conferred discretionary

power . . . [may], in place of one whose natural purport

Commonwealth's case by protecting its witnesses. Id. at 2249. There-

fore, it was clear that the statute did not give a defendant the right to a

hearing from which the press was excluded.

The Commonwealth's suggestion would also place the trial court in the

awkward position of having to rule on a child’s putative waiver of an im-

portant right. Use of a waiver doctrine in this context would entail dif-

ficult factual determinations and relatively cumbersome procedures (ap-

tment of counsel and in some cases a }. It would place a

vy responsibility on even a mature child. It could also import more

uncertainty into the process of testifying and meke the victim's experience

still more taxing.

42a

would compel them . . . [shall], is significant of a settled in-

tention to use the imperative word.” Rea v. Aldermen of

Everett, 217 Mass. 427, 431 (1941). Here the Legislature in

1923 sent the Governor a bill, 1923 House Doc. No. 1219,

stating that “the court shall exclude the general public.

. . .” The Governor returned the bill with amendments in-

cluding a change from “shall” to “may.” In an accompany-

ing message, the Governor said, “A statute giving the

presiding judge the discretion to exclude the public . . .

ought to be sufficient. . ..” 1923 House Doc. No. 1349.

The version eventually enacted appears to have been a com-

promise. It provided that “the presiding justice shall, if said

trial is before a district court, or may, if before the superior

court, exclude the general public. . ..” St. 1923, c. 251.

When the Special Commission reviewed the statute in 1931,

it stated: “The Commission is very strongly of the opinion

that the reasons for a private hearing in such cases, now

mandatory in the district courts, are equally compelling in

the Superior Court, and the Commission recommends that

the above section 16A be amended so that the presiding

justice, whether in the Superior or District Court, shall ex-

clude the general public from the court room, admitting

only such persons as may have a direct interest in the case.”

1931 House Doc. No. 1200 at 90. The Legislature followed

the commission’s recommendation. This legislative history

leaves little room for doubt that the word “shall” in G. L.

c. 278, § 16A, is mandatory as to the victim’s testimony.”

The Globe contends that it should not be excluded under

G. L. c. 278, § 16A, because it is among “such persons as

* This view is further supported by the language of G. L. c. 278, § 16B

(inserted by St. 1949, c. 302), where, as to criminal proceedings in the

district court involving husband and wife, it is stated, “[t)he presiding

justice ... may exclude the general public ... during the trial.”

General Laws c. 278, § 16C (inserted by St. 1978, c. 316), deals with rape

or incest trials and provides that a trial judge “may” exclude “all spec-

tators” on request of the parties and where the defendant waives his right

to a public trial in writing. The Legislature clearly knows the difference

between the permissive “may” and the mandatory “shall.”

43a

may have a direct interest in the case.” In Blondin, supra at

571, the Globe argues, we provided for liberal construction

of the clause, and we said: “The intent was to distinguish

between persons having a legitimate reason for being pres-

ent and mere idle spectators who are often attracted in large

numbers to sensational trials involving sex issues, not only to

the detriment of the community but sometimes to the degra-

dation of justice itself.” Because the Globe’s reporters have

a legitimate reason to attend the trial, a reason unrelated to

voyeurism, the Globe argues they have a “direct interest.”

We have never said that the “direct interest” clause en-

compasses the press, and in Blondin, supra at 572, we ex-

pressly reserved the question. We have stated in dictum

that the statute does not require exclusion of the defendant’s

parent, husband, wife, guardian or friend. In Common-

wealth v. Marshall, 356 Mass. 432 (1969), we held that a

defendant had a right under G. L. c. 278, § 16A, and the

Sixth Amendment to have his mother, brother, sister, and

friend present at his trial. However, including a few of the

defendant’s associates is an entirely different matter from

including the press. Admittedly, the presence of a few

more persons in the courtroom might not appreciably in-

crease the victim’s anxiety about her testimony. But the

knowledge that those few extra persons were reporters who

might publish her testimony to thousands would probably

increase by orders of magnitude her sense of exposure,

vulnerability, and alarm. We believe that a policy of ad-

mitting the press during young victims’ testimony would

substantially increase the risk that the Commonwealth

would lose the benefit of that testimony.

5. In holding that G. L. c. 278, § 16A, is mandatory only

as to the victim’s testimony, we do not rule out the possibil-

ity that the trial judge might close other parts of the trial.

The decision to close any part of the trial other than the vic-

tim’s testimony or to close the entire trial is a matter within

the judge’s sound discretion. See Ottaway Newspapers,

Inc. v. Appeals Court, 372 Mass. 539, 546 (1977). Because

44a

the judge’s discretion in the context of a criminal tria! is well

settled, we take this opportunity to provide general guide-

lines for the exercise of that discretion. See id. at 550-552;

Kennedy v. District Court of Dukes County, 356 Mass. 367,

373 (1969). As we understand G. L. c. 278, § 16A, and the

common law relating to closure of trials, a judge should

hold a hearing before entering an order closing parts of the

trial other than the victim’s testimony. Although we have

not ruled that the plaintiff has a constitutional interest, this

view is consistent with the constitutional requirement that a

party receive a hearing before suffering a deprivation of

such an interest. See Gannett Co. v. DePasquale, U.S.

> (1979) (Powell, J., concurring); id. at

(Blackmun, J., dissenting).4 We take this position because

of our expressed view of the significance of society's interest

in public trials.

In a case in which G. L. c. 278, § 16A, applies, the Com-

monwealth may move for closure of parts of the trial other

than the victim’s testimony or for closure of the entire trial.

The issue at the hearing shall be whether such closure is nec-

essary to serve the statutory purpose; i.e., to preserve evi-

dence required for a just conviction. For example, if closing

all or part of the trial were necessary to assure the avail-

ability of evidence of fresh complaint, see, e.g., Common-

wealth v. Gangi, 243 Mass. 341, 344 (1923); W.B. Leach &

P.J. Liacos, Massachusetts Evidence 133 (4th ed. 1967), the

judge would be justified in ordering closure. The Com-

monwealth should bear the burden of showing necessity.

Furthermore, because of the policy favoring publicity, an

agreement between the prosecution and the defense to close

the trial should not justify closure nor even be relevant to

the judge’s determination of necessity.

At the hearing, any person to be excluded from the trial

should have an opportunity to state his objections to the

P 99 S. Ct. 2898, 2916-2917 (1979).

999 S. Ct. 2939 (1979).

45a

order.“ The person need not file a formal motion to inter-

vene. The public need not receive prior notice of the clo-

sure hearing. On the other hand, the court should hear a

person who in timely fashion informs the court of his desire

to object. The hearing should be completed expeditiously

and should not ordinarily involve lengthy legal argument.

On conclusion of the hearing, the judge should make find-

ings of fact as appropriate and should rule on the necessity

for closure.™

Since the appeal before us involves an issue now moot, it

is to be dismissed.

So ordered.

Quinrico, J. (dissenting). General Laws c. 278, § 16A,

provides in pertinent part as follows: “At the trial of a com-

plaint or indictment for rape, incest, carnal abuse or other

crime involving sex, where a minor under eighteen years of

age is the person upon, with or against whom the crime is

alleged to have been committed . . . the presiding justice

shall exclude the general public fre the court room, ad-

mitting only such persons as may have a direct interest in

the case.” It is undisputed that the criminal trial from

which employees of the Boston Globe were excluded was

one in which the defendant was being tried on indictments

charging him with the crimes of forcible rape and forced

unnatural rape on victims who were under eighteen years of

age.

® As we held in Blondin, supra, and Marshall, supra, the judge may not

exclude certain persons with a “direct interest in the case.”

™ Although a judge might abuse his discretion or make an error of law,

such an error would not warrant reversal on statutory grounds if raised on

appeal by a defendant. Cf. Commonwealth v. Leo, Mass.

- (1979) (Mass. Adv. Sh. [1979] 2245, 2247-2249) (CG. L. c. 278,

§ 16A, does not create rights in a defendant). If a defendant should raise

at the hearing a constitutional objection to closure, the judge should con-

sider the extent of his constitutional right to a public trial.

46a

In part 1 of its opinion, the court holds that the word

“trial,” as used in the phrase “[a]t the trial” at the begin-

ning of § 16A, is ambiguous. The court then discusses sev-

eral principles of statutory construction as relating to am-

biguous language and by the application of those principles

to § 16A it concludes that when the Legislature used the

word “trial” it intended it to mean only that part of the trial

during which the minor victim testifies.

For the reasons stated below, I am unable to agree with

that interpretation of § 16A, and I therefore respectfully

dissent from the opinion in that regard.

It is clear from the court's opinion that its conclusion that

§ 16A “is mandatory only as to the victim’s testimony” is not

based on any holding that the statute is unconstitutional.

The court expressly states that it does not reach the constitu-

tional issues raised by the plaintiff. The court limits itself to

the process of statutory construction of an assumedly ambig-

uous statute. For that purpose it resorts to several aids to in-

terpretation, particularly the legislative history of § 16A, as

originally enacted in 1923 and amended in 1931, and var-

ious articles appearing in law journals and other publica-

tions between 1969 and 1978 on the subject of the ordeal of

rape victims in court. See note 11 supra, of the court’s opin-

ion. I likewise limit this dissent to a consideration of statu-

tory construction, and do not reach any constitutional issues.

1. I do not believe that the words “[ajt the trial,” as used

at the beginning of § 16A, are ambiguous. I believe that

they are used in their usual and ordinary sense, and that as

such they include all of the trial proceedings starting with

the empanelling of the jury and continuing through the re-

turn of the verdict or finding. There may be some excep-

tions thereto, e.g., voir dire hearings held in the absence of

the jury to determine the admissibility of evidence, but it is

not necessary for the purposes of this case to identify or

define such exceptions precisely. In any event I do not

believe that the clear language, given its usual and ordinary

meaning, permits the drawing of a distinction between that

part of the trial during which a youthful victim of a sex

47a

crime testifies and the remainder of the trial during which

any other witnesses are testifying.

The language which the Legislature used in § 16A to state

its intention to require the exclusior of the general public

“at the trial” of persons charged with sex crimes against

young victims is not unique to that statute. In G. L. c. 119,

§ 38, inserted by St. 1954, c. 646, § 1, the Legislature man-

dated that “[aJll hearings [of a certain type involving

juveniles) shall be closed to the general public... .” A

similar provision is found in G. L. c. 119, § 65, to the effect

that “the court shall exclude the general public from the

room” in which hearings are held on certain juvenile mat-

ters. General Laws c. 210, § 6, as amended through

St. 1971, c. 388, provides that if, at the request of any par-

ty, a probate judge determines that an adoption hearing

shall be held in chambers, “the probate judge shall exclude

the general public from the hearing.” Similarly, GC. L.

c. 278, § 16B, inserted by St. 1949, c. 302, provides that a

District Court judge “may exclude the general public from

the court room during the trial of any criminal proceeding

involving husband and wife.” I know of no claim or sugges-

tion that these statutes should be construed to permit the

closure of only certain parts of the trials to which they ap-

ply; and I know of no instances of the application of such a

limitation by our trial courts as a matter of statutory con-

struction.

It is significant to note that when the Legislature did in-

tend to authorize the exclusion of persons from limited por-

tions of a trial it did not use the general language contained

in § 16A and other statutes cited above, but rather it chose

language expressly authorizing an exclusion limited to pre-

scribed portions of a trial. This is eloquently demonstrated

by G. L. c. 278, § 16C, enacted by St. 1978, c. 316, which

provides in part: “To protect the parties involved at a trial

arising from a complaint or indictment for incest or rape,

the trial judge may exclude all spectators from the court-

room in which such trial is being held, or from said court-

room during those portions of such trial when direct testi-

48a

mony is to be presented,” provided certain consents by the

parties are first obtained.

In my opinion, a comparison of § 16A with the other stat-

utes discussed above requires a conclusion that the Legisla-

ture is capable when drafting statutes of using language

which clearly expresses its intent to exclude the general

public or spectators from trials generally as distinguished

from parts of trials, and that it demonstrated this in its

choice of the language of § 16A in sharp contrast to th

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