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Mass. Newspaper Loses Bid to See Court Document

May 15, 1989

WASHINGTON (AP) _ The Supreme Court today rejected an appeal by a Massachusetts newspaper barred from seeing a court document during a much-publicized murder prosecution.

The justices, without comment, let stand a state court decision that keeping the document secret did not violate the public’s constitutional right of access in criminal trials. There was no recorded dissent.

Raymond Green, a supervisor at the Belchertown State School in rural western Massachusetts, was murdered on the school campus Aug. 4, 1986. There was no arrest in the case for 11 months.

Kenneth Phoenix, a school employee, was arrested July 3, 1987, on murder charges. State police searched Phoenix’s Belchertown home that same day.

After Phoenix was arraigned in court, but before he was formally indicted, a reporter for the Transcript-Telegram, a newspaper published by Newspapers of New England Inc. in Holyoke, Mass., asked to see the search warrant and supporting police affidavit.

A state judge agreed to release the warrant that was issued allowing police to search Phoenix’s home. But she impounded the 16-page affidavit, in which police offered justification for the search.

A state appeals court upheld that order after the Transcript-Telegram appealed, and the Massachusetts Supreme Judicial Court ruled last Dec. 22 that the judge had acted properly.

Although acknowledging the affidavit is a public document and the public has a right to attend criminal trials, the state court said: ″The affidavit in question has no integral relationship with any particular pretrial proceeding to which the public enjoys a First Amendment right of access.″

The state court also said releasing the affidavit at the time the newspaper sought it could have jeopardized Phoenix’s right to a fair trial.

″No constitutionally guaranteed right to access to the affidavit existed at the time the plaintiff requested it, and the district court judge did not abuse her discretion in impounding the affidavit,″ the state court ruled.

Noting that Phoenix already had been convicted by the time of its ruling, the state Supreme Judicial Court ordered that the affidavit be made public. It subsquently was released.

In the appeal acted on today, lawyers for the newspaper said release of the document did not make its constitutional challenge moot.

″The dispute over the right to inspect affidavits in support of search warrants is not only capable but likely of repetition,″ the appeal said.

It added: ″The decision in this action leaves the public with no constitutionally guaranteed right of access to important judicial proceedings.″

But Massachusetts prosecutors urged the justices to reject the appeal.

″Search warrant affidavits are generally available to the press and the public,″ they said. ″Although occasions will continue to arise where particular affidavits are temporarily impounded to protect legitimate state interests - the integrity of an ongoing investigation or the accused’s constitutional right to a fair trial - the general principal is one of publicity.″

The case is Newspapers of New England vs. Clerk-Magistrate, 88-1514.

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