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Appeals Court Applies Pon Standard to Defendant’s Request to Seal Record

gavel-1238036-300x201In a recent case issued by the Appeals Court – Commonwealth v. Doe – the Court vacated the trial court judge’s order “denying [the defendant’s] petition to seal his criminal record in a case terminated by a nolle prosequi.” A nolle prosequi is a declaration made by a prosecutor in a criminal case stating that the case against the defendant is being dropped. It is essentially an admission that the charges cannot be proved, that evidence has demonstrated either innocence or a fatal flaw in the prosecution’s claim or the district attorney has become convinced the accused is innocent. As grounds to support its decision reversing the denial of the motion to seal, the Appeals Court reasoned that, “in balancing the interests of the public and the defendant, as required by Commonwealth v. Pon, 469 Mass. 296 (2014), the judge may have relied upon a factor that is inconsistent with Pon’s revised standard for discretionary sealing, and may have placed too much importance on another factor that was of limited concern in the circumstances.”

The background was as follows. “Doe was indicted for murder in the first degree in connection with the death of his six month old son,” purportedly due to “shaken baby syndrome.” “[W]hile the case was pending, it was learned that Doe’s wife and her family had a previously unknown history of collagen vascular disease, a genetic condition that was relevant to determining the child’s cause of death. This information was supplied to the prosecution and the medical examiner, who … revised his ruling on the manner of death from ‘homicide’ to ‘could not be determined.’ Shortly thereafter, … the Commonwealth filed a nolle prosequi, stating that it could not ‘meet its burden of proving cause of death beyond a reasonable doubt[.’]” “Doe [then] filed a petition, pursuant to G.L. c.276, §100C, … requesting discretionary sealing of the case record because it impaired his ability to obtain employment.” The judge denied the motion “‘without prejudice to the defendant to renew upon a showing of changed circumstances.’”

In its decision, the Appeals Court discussed the significance of the decision in Pon, which “replaced the stringent standard [for sealing] set forth in Commonwealth v. Doe, 420 Mass. 142, 149-152 (1995), with a new standard more in keeping with the legislative policy reflected in the 2010 revision of the criminal offender record information (CORI) statutory scheme. That policy is to ‘provid[e] the public, and particularly employers and housing providers, with access to certain criminal records in order to make sound decisions while also enabling the sealing of criminal records where so doing would not present public safety concerns.’ Pon, 469 Mass. at 303.” Under Pon, a “judge must balance the public interests at stake against the interests favoring privacy,” in deciding whether there is “good cause” to seal a defendant’s criminal record. Turning to the present case, the Appeals Court “infer[red] that the [judge’s] balancing process was influenced by one or both of two arguments [by the Commonwealth] rooted in circumstances that could change over time: first, that Doe had not applied for work since the nolle prosequi and, hence, could not demonstrate that his record had disadvantaged him in obtaining employment; and second, that it was too early to terminate the public’s access to Doe’s court records, because defense counsel in another shaken baby syndrome case pending in the same county was expected to use evidence in Doe’s case to impeach the credibility of an expert witness common to both cases.”

As to the first of those considerations, the Court noted (1) that Doe’s petition for sealing contained a plausible explanation for his decision to refrain from searching for a job after the nolle prosequi; and (2) that, in any event, Pon, “[f]ar from requiring proof of unsuccessful job efforts, … instructs that ‘judges may take judicial notice of the well-known consequences for employment … from the existence of a criminal record.’” In the Court’s view, “[t]o the extent that the judge’s decision adopted the Commonwealth’s argument that Doe could not demonstrate disadvantage in obtaining employment unless and until he actually tried and failed to secure a job, it was inconsistent with the revised standard for sealing set forth in Pon, and constituted an error of law.”

As to the second consideration that inferably influenced the judge’s balancing process — the pendency of another case involving shaken baby syndrome — the Appeals Court stated, “Whether, as the Commonwealth argued, the continued public interest in the Doe case that was being generated by the other case militated in favor of maintaining public access to Doe’s file is a close question.” The Court resolved that question in Doe’s favor, “conclud[ing] that the judge may have placed too much weight on the pendency of the other case in denying Doe’s petition.” In any event, noted the Court, “later developments have made the issue largely academic. In the intervening period between the judge’s order [denying Doe’s petition] and the briefing of this [appellate] case, the Commonwealth filed a nolle prosequi in the other case, as well. The unusually high degree of public interest in that case, which brought attention to the Doe case, no longer stands in the way of sealing Doe’s record.”

Having a criminal record of any kind has the potential to negatively impact a person in many different ways – be it in relation to employment, housing, or other issues. Attorney Daniel Cappetta recognizes the significant hurdles that individuals with a criminal record face. He has successfully helped numerous clients seal their records and thereby take a significant step forward toward better job prospects, better housing prospects, and other benefits. If you or a loved one would like to explore the possibility of sealing a record, contact Attorney Cappetta for a free consultation today.