The Road to Race and Implicit Bias Eradication

Desmond_Kennethby Hon. Kenneth V. Desmond, Jr.

Voice of the Judiciary

Throughout the past several decades, State and Federal appellate courts have candidly acknowledged the implicit biases of litigants and jurors.  Although social science research has found that judges are just as susceptible to unconscious bias as the rest of the population, the paucity of case law acknowledging judicial bias underscores the need for introspection.  Since confronting subconscious attitudes and stereotypes is challenging for many, the process of eradicating the influence of race and implicit bias on the Massachusetts judicial system is likely to take many years.  Chinese philosopher Lao-Tzu said “the journey of a thousand miles begins with one step.”  With that in mind, the Trial Court recently took the first step of its “thousand mile journey” to eliminate the influence of implicit bias by establishing the Departmental Race and Implicit Bias Advisory Committee.

The Committee was formed in response to feedback from attendees of the September 2015 All Court Conference on Race and Implicit Bias.  According to Chief Justice Ralph Gants, the decision to hold the All Court Conference was prompted by recent events in Ferguson, New York, Baltimore, and Cleveland that “raised important questions about the intersection of race and justice in our country.”  The Supreme Judicial Court recognized the value of examining the court’s role in “addressing race as it affects the pursuit of justice,” and “resolved to open a dialogue among Massachusetts judges” to consider the way implicit bias impacts the Commonwealth’s courts.  The subsequent formation of the Committee was a way for the Trial Court to continue that dialogue at the departmental level.

In the most basic sense, implicit bias is “thoughts about other people you didn’t know you had.”  Consequently, it is often difficult for individuals who do not fall victim to the impact of certain biases to identify the ways they are manifested.  Within the Trial Court, however, implicit racial, cultural, gender and other biases have opportunities to exhibit themselves in myriad ways.

Implicit racial bias, for example, can manifest in the form of erroneous assumptions that a person of color is not a judge, attorney, or officer of the court.  Implicit racial bias may also explain the disparity between the number of non-Hispanic whites and persons of color given the opportunity to participate in Drug Court, which offers offenders an opportunity for rehabilitation instead of incarceration.  Indeed, while non-Hispanic whites in Massachusetts use illicit substances at slightly higher rates than members of racial and ethnic minorities, incarceration rates for distribution offenses that do not carry mandatory minimum sentences are six times higher for persons who identify as black.  Juveniles are not exempt from the subconscious biases that fuel these trends.  Of all the youths arrested for weapons offenses in 2010, white youths were arrested at approximately double the rate of black youths.  However, of all the youths that were held in custody for weapons offenses, black youths comprised 52% while white youths represented a mere 16%.

Implicit cultural biases can lead Trial Court staff members to erroneous conclusions about a constituent’s demeanor.  A judge or clerk interpreting a lack of eye contact as representative of disinterest may be less patient with a litigant who avoids eye contact than a judge or clerk who knows that in many cultures, eye contact is a sign of disrespect.  Implicit gender biases have the potential to impact the outcome of familial disputes, such as the distribution of assets in a divorce or the likelihood of a male obtaining a protective order from an abusive partner as compared to the chances of a female requesting one on the same basis.  One study found that 65% of transgender Massachusetts residents had experienced discrimination in an area of public accommodation.  Discriminatory, or even preferential treatment may also arise from implicit biases concerning sexual preference, age, weight, disability, and religion, among others.

By way of the Committee, the Trial Court seeks to create a system that embraces and understands all people regardless of their identity.  The Committee is comprised of Chief Justice Paula Carey and Court Administrator Harry Spence as well as one or more individuals (mostly judges) from each Trial Court Department who have been appointed by their respective chief justices.  Committee members are charged with initiating a dialogue about implicit bias within their department and encouraging others to get involved with the effort to help all Trial Court staff members recognize that an egalitarian judicial system is the only way to build and promote public confidence and trust that the Trial Court will administer justice impartially to everyone that it serves.

The Committee recognizes that the implicit associations we hold “do not necessarily align with our declared beliefs,” and seeks to implement checks and balances that give Trial court staff members pause before they make a decision.  Already, the Committee has created bench cards to be distributed all Trial Court justices and clerks that encourage them to engage in “more deliberative, effortful processing” when making a decision, and thereby discourage low-effort decision-making that relies on intuition informed by stereotypes or prejudice.

The Committee also understands that exposure to stigmatized group members “can help individuals negate stereotypes . . . and ‘unlearn’ the associations that underlie implicit bias.”  Accordingly, the Committee intends to identify and encourage the use of diverse recruiting resources, and advance staff members’ cultural awareness through workshops and other forms of training.  This fall, the Committee plans to introduce a resource bank on the Trial Court’s intranet to ensure that the materials distributed at these trainings are accessible to all.  To create a judicial system that is user-friendly for everyone, the Committee also plans to assess the experiences of Trial Court users through surveys and focus groups, and is considering the implementation of educational opportunities for pro se litigants who are struggling to comply with their legal obligations.

If you are interested in assessing your own implicit biases, Harvard University’s Project Implicit has free online tests available that allow you to assess subconscious preferences based on race, gender, and sexuality, among others.

Chief Justice Paula Carey recognizes that “issues related to race, bias and power are among the most difficult to confront, discuss and address since they are embedded in an organization’s structures and practices, they are often invisible to many, and they prompt defensive reactions.”  She believes that taking these issues on will be “a challenging journey but well worth the effort.”

Judge Kenneth V. Desmond, Jr. has served on the Massachusetts Judiciary for eleven years. He was appointed to the Massachusetts Superior Court in December 2012 and prior to that served on the Boston Municipal Court. He is a Trustee of the Flaschner Judicial Institute and Chair of the Trial Court’s Departmental Race and Implicit Bias Advisory Committee. Judge Desmond is a graduate of Tufts University and Boston College Law School. 


Public Access to Electronic Judicial Records

Albano_Jonf by Jonathan M. Albano

Legal Analysis

 In February 2015, the Supreme Judicial Court authorized Massachusetts trial and appellate courts to conduct pilot projects on electronic filing and service.[i]  The Court also issued Interim Electronic Filing Rules for the pilot projects.[ii]  Before the Interim Rules were issued, Trial Court Chief Justice Paula Carey appointed a 24-member Trial Court Public Access to Court Records Committee to develop a uniform policy for court records in written and electronic form.[iii]  The Committee will publish proposed rules for public comment and, after considering the public comments, present the proposed rules to the Trial Court and the Supreme Judicial Court for their consideration.

Although electronic filing and service is familiar to federal practitioners who use the PACER system, because Massachusetts state courts have far more expansive jurisdiction than the federal courts, additional study was required to determine how best to administer a state court electronic court record system.  This article considers three of the many issues raised by the Commonwealth’s transition from paper to electronic court records and offers the following conclusions:

1.      The public has a constitutional and common law right of access to electronic court records;

2.        The public has a commensurate right of access to electronically maintained alphabetical indices of criminal cases; and

3.       Permitting remote access to criminal case files would not violate the Criminal Offender Record Information Act (“CORI”), G.L. c. 6, § 167, et seq.

Public Access to Electronic Court Records

The shift to electronic court files is not likely to alter the public’s well-recognized constitutional and common law rights to on-site access to court records.  The Supreme Court repeatedly has held that the First Amendment grants the public a right of access to criminal proceedings.  See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 600, 610-11 (1982) (striking down Massachusetts statute imposing mandatory closure of sex-offense trials during the testimony of minor victims).[iv]  Several Circuit Courts of Appeal (including the First Circuit) have held that the public’s First Amendment access rights extend to judicial documents filed in criminal cases.  See, e.g., In re Globe Newspaper Co., 729 F.2d 47, 52 (1st Cir. 1984); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 505 (1st Cir. 1989).  The Supreme Judicial Court similarly has stated that “the public has a First Amendment right of access to court records such as the transcripts of judicial proceedings and the briefs and evidence submitted by the parties.”  The Republican Co. v. Appeals Court, 442 Mass. 218, 223 n.8 (2004).[v]

The SJC also has recognized a common law right of access to judicial records in both criminal and civil cases.  See, e.g., Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 604 (2000); Republican, 442 Mass. at 222.  Cf. Commonwealth v. Winfield, 464 Mass. 672, 672-73, 679 (2013) (no constitutional or common law right to court reporter’s “room recording” that is not the official record of the trial, is not filed with the court, and is not referenced in the court file).  Many of these principles are incorporated into the recently amended Uniform Rules on Impoundment Procedure, which now apply to criminal and civil case records.  See C.J. Paula M. Carey and Joseph Stanton, Amendments to the Uniform Rules of Impoundment Procedure, BBA Journal Summer 2015 Vol. 59.

None of these cases or rules establish an absolute right of access to judicial records.  Judges are authorized to impound court records on a case-by-case basis or if required by statute or court rule, provided that the governing constitutional or common law standards are met.[vi]  “Under the First Amendment to the United States Constitution, ‘[t]he burden falls on the party seeking closure to demonstrate that (1) there exists a substantial probability that permitting access to court records will prejudice his fair trial rights; (2) closure will be effective in protecting those rights, and that the order of closure is narrowly tailored to prevent potential prejudice; and (3) there are no reasonable alternatives to closure.’”  Republican, 442 Mass. at 223 n.8 (quoting Sharpe, 432 Mass. at 605 n.24).  The common law right of access similarly permits impoundment of judicial records upon a showing of “good cause,” a standard which the Supreme Judicial Court has said “take[s] into account essentially the same factors as required by the First Amendment: ‘the competing rights of the parties and alternatives to impoundment.’”  Id.[vii]

Given these well-established constitutional and common law principles, there should be little doubt that the public’s right of access to electronically maintained court files is comparable to its historical right to inspect conventional court records.  In both situations, “[i]t 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 a public duty is performed.”  Republican, 442 Mass. at 222 (quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.)).  As discussed below, however, other questions remain about the manner in which the public will be allowed to access electronic records.

Public Access to Electronically Maintained Alphabetical Indices of Criminal Cases

Alphabetical indices of criminal case files have been available to the public since at least the 18th century.  See Globe Newspaper Co. v. Fenton, 819 F. Supp. 89, 91-93 (D. Mass. 1993).  See also Massachusetts Body of Liberties, art. 48 (1641) (“Every inhabitant of the Country shall have free liberty to search and review any rolls, records or registers of any Court or office….”).  Although converting to electronic records will make it unnecessary for clerks to continue to keep conventional, hard-copy alphabetical indices, clerks still will be required under Massachusetts law to maintain alphabetical indices (even if in electronic form).  See G.L. c. 221, § 23 (“Each clerk shall keep an alphabetical list of the names of all parties to every action or judgment recorded in the records and a reference to the book and page thereof….”).  As a practical matter, moreover, some form of an alphabetical index or search function will be needed to efficiently organize and retrieve case information.

Will the public have a right to use the newly created electronic indices of criminal cases?  Case law concerning public access to conventional alphabetical indices and docket sheets suggests that the answer is yes.  See Fenton, 819 F. Supp. at 90-91 (public has First Amendment right of access to alphabetical indices of criminal cases); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 86 (2d Cir. 2004) (First Amendment right of access to docket sheets).

The Fenton court struck down on First Amendment grounds a provision of CORI (since repealed) that prohibited public access to the alphabetical indices of criminal cases in order to promote privacy and rehabilitation interests.  Fenton, 819 F. Supp. at 93.[viii]  See generally New Bedford Std.-Times Pub. v. Clerk, Third Dist. Ct., 377 Mass. 404, 412, 413 (1979); J. Brant, et al., Public records, FIPA and CORI: how Massachusetts balances privacy and the right to know, 15 Suffolk U. L. Rev. 23, 59-60 (1981).

Fenton held that the historical tradition of access to alphabetical indices, combined with the positive role access has on public oversight and understanding of the courts, required that alphabetical indices to criminal cases be publicly available absent case-specific findings that a restriction on access was narrowly tailored and effectively served a compelling state interest.  819 F. Supp. at 91-99.

Throughout the courts a sprawling amalgam of papers reflects action in connection with judicial proceedings.  It is not misleading to think of courthouse papers as comprising a vast library of volumes for which docket sheets are the tables of contents.  Without the card catalogue provided by alphabetical indices, a reader is left without a meaningful mechanism by which to find the documents necessary to learn what actually transpired in the courts.  The indices thus are a key to effective public access to court activity.  And the importance of public access to the proper functioning of our judicial system cannot be overstated.

Id. at 94.  Fenton has been cited approvingly by the SJC.  See Globe Newspaper Co. v. Dist. Attorney for Middle Dist., 439 Mass. 374, 382 n.12 (2003) (“[a]s a result of [Fenton], the public has access to court clerks’ alphabetical indices of defendants’ names and may thereby obtain access to court records concerning an individual defendant”); Roe v. Attorney General, 434 Mass. 418, 435-436 (2001) (citing Fenton for the proposition that the “denial of public access to court alphabetical indices of criminal defendants violated First Amendment to the United States Constitution”).

These decisions provide strong support for the proposition that the public should have a commensurate right of access to electronically maintained alphabetical indices (or “card catalogues”) of criminal cases.  Absent recognition of such a right, the modernization of court files would have the unintended consequence of reducing public oversight of the courts.

Remote Electronic Access to Criminal Case Records and CORI

Recognizing a public right of access to electronic court records ensures that the computerization of judicial records will not diminish the public’s longstanding right to obtain information about the functioning of the judicial system.  Other questions remain, such as whether the public should have remote access to case files over the World Wide Web.  PACER, for example, permits registered users to remotely search court records by a party’s name in individual federal district courts, courts of appeal and bankruptcy courts to obtain both civil and criminal case records.[ix]  Federal Rule of Civil Procedure 5.2 addresses some privacy concerns raised by online access by requiring PACER users to redact certain personal identifying information from their electronic filings.  Similar requirements are contained in the Supreme Judicial Court’s proposed new Rule 1:24, Personal Identifying Information.  Despite such safeguards, privacy advocates have concerns about the difference between, on the one hand, requiring members of the public to travel to individual courthouses to examine a court record and, on the other hand, permitting the public to access records online either on a court-by-court, county-by-county, or state-wide basis.  In addition to these public policy issues, online access to court records also raises a legal issue unique to Massachusetts law:  would permitting remote web access to electronic court records in criminal cases violate CORI?

As initially enacted, CORI restricted public access to certain criminal record information held by the executive and judicial branches.  See generally New Bedford Std.-Times, 377 Mass. at 412, 413; Public records, FIPA and CORI, supra, 15 Suffolk U. L. Rev. at 58-60.  The statutory provision that prohibited public access to alphabetical indices of criminal cases was struck down by Fenton and, thereafter, repealed as part of the 2010 amendments to the statute.  Compare St. 1977, c. 841 and G.L. c. 6, § 172(m).  See generally G. Massing, CORI Reform–Providing Ex-Offenders with Increased Opportunities without Compromising Employers’ Needs, 55 Boston Bar Journal 21, 22 (Winter 2011).

The combination of Fenton and the 2010 amendments to CORI have led some to conclude that CORI no longer has any application to court records.  See Guide to Public Access, Sealing & Expungement, Administrative Office of the District Court Department of the Trial Court (Rev. Ed. 2013) at 8 (“The CORI Law Does Not Limit Access to Clerk’s Records”); see also id. at 8 n.27, 11 & n.34.  This conclusion is supported by G.L. c. 6, § 172(m)(2), which provides in relevant part:  “[n]otwithstanding this section . . ., the following shall be public records: . . . chronologically maintained court records of public judicial proceedings.”  Id.  See also Middle Dist., 439 Mass. at 382 (“[d]ocket numbers are assigned chronologically and maintained by courts as part of their court records, criminal proceedings against adult defendants are public proceedings, and docket number information thus falls squarely within the second listed exception to the CORI statute.”); id. at 385 (“There is no violation of the CORI statute when the search specifications consist of information that would also be revealed on the court’s records accessible to the public.”).

Privacy advocates argue that remote access to electronic court records would provide the public with the type of aggregated criminal history information still protected by CORI.  The 2010 amendments to CORI authorized the Department of Criminal Justice Information Services (“DCJIS”) to create an electronic database of criminal offender record information and strictly limited access to that database to enumerated persons and entities.  See G.L. c. 6, § 172(a)See also id. at §§ 167(e), G.L. c. 6, § 168A, G.L. c. 6, § 168C, 172(29), (30).  The statute also makes it a crime to knowingly obtain or attempt to obtain criminal offender record information under false pretenses or to knowingly communicate such information “except in accordance with [CORI].”  G.L. c. 6, § 178.

A discussion of the public policy arguments for and against online access to court records of criminal cases is beyond the scope of this article.[x]  As a matter of statutory construction, however, it is difficult to argue that CORI forbids remote access to court records (whether on a state-wide, county-wide, or court-by-court basis), particularly given the unintended consequences of such an interpretation.  For example, the statute draws no distinction between electronic and conventional court records.  If CORI applies to accessing electronic court records remotely, then it also would apply to accessing conventional records in a courthouse, a conclusion that would upend centuries of tradition and raise significant constitutional issues of free speech and separation of powers.  See generally Fenton, 819 F. Supp. at 98-99; Opinion of the Justices, 365 Mass. 639, 645-647 (1974) (executive branch agency that controlled electronic data processing in the judicial branch would violate art. 30 of the Declaration of Rights).  Nor does the statute distinguish between remote and on-site access, or between state and federal courts.  Broadly interpreting CORI as applying to court records thus would implicate PACER users as well.  Under these circumstances, the criminal penalties imposed for obtaining criminal offender record information under false pretenses or communicating such information except in accordance with the statute seem best understood as protecting the DCJIS database, not court files.  See G.L. c. 6, § 178.

Electronic court records represent a great technological advance for the delivery of legal services and justice.  But that advance should not render obsolete a far greater innovation ― the Founders’ vision of a presumptively public judicial system.  There may be many issues to consider before permitting remote Web access to court records, but violating CORI most likely is not one of them.

Jonathan M. Albano is a partner at Morgan Lewis & Bockius LLP in Boston. He represents the press in courtroom access and privacy matters and was counsel on behalf of media interests in some of the cases cited in this article.

Endnotes

[i] See http://www.mass.gov/courts/case-legal-res/rules-of-court/sjc/efiling-order.html.

[ii] See http://www.mass.gov/courts/case-legal-res/rules-of-court/efiling-rules.html#rule11.

[iii] Committee members include representatives of the Trial Court, the Superior Court, the Boston Municipal Court, the Housing Court, the Land Court, the Probate and Family Court, the Appeals Court, and the Supreme Judicial Court.  A transcript of a June 15, 2015 public hearing held by the Committee, as well as written comments received from 36 persons and organizations, is available at http://www.mass.gov/courts/court-info/commissions-and-committees/tc-access-records.html.

[iv] See also Richmond Newspapers v. Virginia, 448 U.S. 555, 580 (1980); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 513 (1984); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10 (1986).

[v] Other courts also have recognized a First Amendment right of access to civil proceedings and records.  See generally Publicker Ind., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984).  The Supreme Judicial Court has not yet addressed whether Article 16 of the Declaration of Rights of the Massachusetts Constitution grants the public a comparable right of access to court records.

[vi] The Massachusetts Appeals Court maintains a list of materials that are not available for public inspection.  See http://www.mass.gov/courts/docs/appeals-court/impoundment-sources.pdf.  But see Commonwealth v. Jones, 472 Mass. 707, 731 (2015) (despite statutory requirement of G. L. c. 233, § 21B that rape shield hearings must be held in camera, Constitution requires trial court to make case-specific findings before closing hearing).

[vii] “The exercise of the power to restrict access, however, must recognize that impoundment is always the exception to the rule, and the power to deny public access to judicial records is to be strictly construed in favor of the general principle of publicity.”  Republican, 442 Mass. at 223  (quotation and citation omitted).

[viii] See St. 1977, c. 841 (“the following shall be public records: … (2) chronologically maintained court records of public judicial proceedings, provided that no alphabetical or similar index of criminal defendants is available to the public, directly or indirectly”) (emphasis added).

[ix] The more than one million users of PACER, which is an acronym for Public Access to Court Electronic Records, include attorneys, pro se filers, government agencies, trustees, data collectors, researchers, educational and financial institutions, commercial enterprises, the media, and the general public.  See https://www.pacer.gov/.

[x] See, e.g., N. Gomez-Velez, Internet Access to Court Records – Balancing Public Access and Privacy, 51 Loy. L. Rev. 365 (2005); P. Martin, Online Access to Court Records – From Documents to Data, Particulars to Patterns, 53 Villanova L. Rev. 855 (2008).  See generally U.S. Dep’t of Justice v. Rep. Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989).