In denying a motion to seal evidence in the case against Philip Chism, Salem Superior Court Judge David Lowy issued a ringing defense of the First Amendment and the public’s right to observe the machinery of the justice system in all aspects of its operation.
“The First Amendment poses challenges everyday for countless people and institutions,” Lowy wrote in his decision. “But the First Amendment was not intended to make life easy. To paraphrase Thomas Jefferson, the First Amendment is intended to allow democracy to thrive.”
Chism, who just turned 16, is charged with first-degree murder, rape and robbery in the Oct. 22, 2013, death of Danvers High School math teacher Colleen Ritzer, 24, of Andover.
The proceedings against Chism are in the pretrial phase, with prosecutors and the defense haggling over evidence and making preparations for jury selection. The judge’s decision involved a defense motion to impound a transcript and videotape of Chism’s statement to police on Oct. 23, 2013. In that statement, Chism allegedly confessed to killing Ritzer by slashing her throat with a box cutter.
Chism’s lawyers want to bar prosecutors from using that statement as evidence against him at trial. The defense also filed a motion asking Lowy to impound the transcript, claiming its release would taint the pool of potential jurors.
The Salem News and the Eagle-Tribune, as well as The Boston Globe, filed motions objecting to the sealing of the evidence.
“The presumption is that all proceedings are open and there’s a presumption that exhibits are open as well,” Andover attorney Peter J. Caruso, who represents The Salem News, said earlier outside court after filing the objection. “There should be no secret hearing, and there should be no secret documents in a courtroom.”
In his ruling, Lowy agreed, noting that under our common law, the presumption is that judicial records are open to the public. Lowy quoted extensively from prior case law in supporting his ruling.
“It is desirable that (judicial proceedings) should take place under the public eye because it is of the highest moment that those who administer 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 the public duty is performed,” Lowy quoted from a 2004 case, Republican Company vs. The Appeals Court.
Lowy noted that Chism’s defense has raised important questions such as whether Chism asserted his right to remain silent, whether his statements were voluntary, whether Chism, then just 14, was denied an opportunity to consult with his mother and other matters relevant to the defense’s effort to suppress evidence at trial.
Lowy said that, if he were to grant the motion to impound the videotape and Chism’s statement, then these matters relevant to the motion to suppress evidence would have to be discussed by the judge and attorneys in private, at sidebar.
That would “impair a robust discussion and leave the public distrustful of the process,” Lowy said.
“Whatever the Court’s decision on suppression might be, the public’s right to understand that decision is of constitutional dimension and central to the maintenance of our social compact.”
Lowy concluded: “The exacting scrutiny of the press in those circumstances in covering the courts and providing an unobstructed view of the proceedings, therefore, remains at the core of protecting the concept of ordered liberty, the rule of law, and ultimately not just democracy, but constitutional democracy itself.”
Strip away the legal language and here is what Lowy is saying: The people have a right to see and bear witness to the workings of their judicial system. And the maintenance of that right is essential to the public’s confidence in the administration of justice and, indeed, the very underpinnings of democracy.
We could not agree more and applaud Lowy for his ruling. If only those in the legislative and executive branches of government showed such faith in the Constitution and the people it protects.