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Judge vacates do-not-publish order issued in priest sex-abuse case

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  1. Prior Restraint

    News Media Update         MASSACHUSETTS         Prior Restraints         Jan. 12, 2005    

Judge vacates do-not-publish order issued in priest sex-abuse case

  • Media organizations successfully challenged a prior restraint on publication of the name of an already publicly identified witness, but are still seeking to undo a sealing order in the case.

Jan. 12, 2005 — A Superior Court judge Friday lifted another judge’s order to journalists not to publish the name of the alleged victim in the upcoming trial of defrocked priest Paul Shanley.

The Middlesex County District Attorney’s Office, which is preparing to try Shanley next week on multiple charges of child rape, decided not to appeal Judge Stephen Neel’s decision to vacate the prior restraint.

“Given the overwhelming authority establishing that the court does not have the power to issue prior restraints, we were not surprised that Judge Neel made this ruling,” Robert A. Bertsche, attorney for The Boston Globe, The New York Times and The Associated Press, said in a telephone interview. He added that they were “grateful” Neel made his ruling “as expeditiously as he did.”

Judge Charles Spurlock had issued the do-not-publish order on Jan. 4 after prosecutors said the accuser — who had previously given media interviews in which he was identified — might refuse to testify if his name was published. Neel vacated the order late Friday afternoon, issuing what a press release from the DA’s office called a “thoughtful and thorough” opinion. The 10-page decision, however, was not made public because of a blanket sealing order now in effect.

The Boston Herald file a motion Monday to vacate the sealing order, which the trial court apparently granted in December 2002 at the request of the prosecution, according to Elizabeth A. Ritvo, attorney for the Herald. As of Tuesday she had not yet seen the order, but it apparently seals from the public all documents filed in the case. Its existence prevented her from providing media with a copy of the brief she submitted to the court.

Bertsche said it is unclear on what basis the sealing order was entered. Media lawyers learned of its existence through references in the court docket, as well as representations by the district attorney’s office and court personnel, he said.

Ritvo said the court gave the prosecution and defense until Friday to respond to the motion to vacate, which was joined by the Globe, the Times and the AP. She said the media is not seeking the names of the alleged victims from the court records, but asked the court to unseal “the remaining material.”

“We’re trying to peel away the layers,” said Bertsche. “I’m confident we’ll be successful.”

The trial court has scheduled another hearing on the question of media access before jury selection begins on Jan. 18.

Since Shanley was arrested three years ago and charged with numerous counts of child rape and indecent assault and battery, two of his alleged victims have spoken publicly about the case and were regularly identified in news articles, according to AP. Shanley originally was charged with assaulting four people, but prosecutors dropped two alleged victims from the case and plan to drop a third, leaving one accuser to testify. That man’s name was used in early versions of an AP story last Tuesday, but was removed after Spurlock issued his do-not-publish order, which he based on the state’s rape-shield law. The statute makes it a crime “to publish, disseminate or otherwise disclose the name” of an alleged sexual assault victim, violation of which could result in a fine of as much as $10,000.

The AP has a policy of not identifying alleged rape victims if they wish to remain anonymous.

“I think it’s important to keep in mind that [the challenge to the prior restraint] wasn’t necessarily [about] the right to identify the victim,” Bertsche said, “but that the right to have the decision about what would be [published] be made in the newsroom, not in the courtroom.”

Bertsche said the Commonwealth was wise not to appeal the order to vacate “and put themselves in a position to be testing the rape shield statute, which we think is unconstitutional if applied to bar the media” from publishing information that it obtained legally.

A U.S. Supreme Court case, Florida Star v. BJF , holds that when a newspaper publishes truthful information which it obtained lawfully — in that case, the name of a rape victim — punishment may be imposed only when “narrowly tailored to a state interest of the highest order,” and that no such interest was served by imposing liability on a newspaper for violation of Florida’s rape-shield law.

(Commonwealth v. Shanley; Media counsel: Robert A. Bertsche, Prince Lobel Glovsky & Tye, Boston; Elizabeth A. Ritvo, Brown Rudnick Berlack Israels, Boston)KK

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