If something good happened, would we even know how to write about it.
Massachusetts judge holds, boldly, that public scrutiny of cold cases might be good, actually.
The rule of law is dying, in the United States.
If you’ve sat vigil and had the hospice nurse coolly hold one of your grimy, inadequate hands in two of her clean ones, and been told that dying is a process, rather than an event, and tried to nod and understand about how circulation stops before breathing, and signs will gather, until it’s over, and somehow life continues outside the window — people going to work — and in the hall — somehow there are people in the bathroom, who in the world would dare have a bowel movement of that length, and at that volume while someone is dying in the next room — that’s pretty much how it feels, to be a lawyer, here, now.
The world is changing. For the worse. And yet, shit goes on.
At Bullshit Hunting, because we’re not focused on any particular state or province, we often talk about FOIA. FOIA, at the federal level, is rapidly becoming unusable. Partly, this is deliberate — transparency doesn’t suit the aims of the current administration — and partly, of course, it’s a result of incompetence. A regime dedicated to breaking things it doesn’t understand.
But, in fact, state public records regimes are often vastly superior to FOIA. And often, if you’re looking for public records, it’s a state regime that governs. And state regimes are not dead yet. And the very nice thing about state public records regimes is that they’re enforceable in state court.
And state court is still a place where good things can happen.
One of the trickiest, and most often invoked, public records exemptions is the “investigative exemption.” It’s the one that the police, or district attorneys, or sometimes even fire marshal’s offices, will invoke any time they’re asked for, well, anything.
And courts are, by and large, reluctant to push back on this.
Until they’re not.
Journalist Daniel Golden, it seemed, wanted to look into the murder of Mary Joe Frug, a law professor who was murdered in Cambridge, in the 1990s. Her killer was never identified.
He submitted a public records request to the Middlesex District Attorney1’s Office.
The DA claimed a broad exemption, reasoning, as they always have — and always will, that any investigation is “open” if nobody’s been caught.
Mr. Golden appealed. And then he sued.
The Middlesex DA refused to produce an index to the court, on request, concerning this “investigative exemption.” When it did, the court was very displeased with the results, describing the index as follows:
“On its face, the Index mocks the Court's original Order of production, as expounded in its Reconsideration Memorandum, and makes virtually no effort to comply with the directives thereof. The Index consists of a 30-page spreadsheet that reflects no more than a Potemkin production of the information required by the Court. Indeed, the Index proffered is so rife with redaction regarding the referenced records that no substantive information whatsoever regarding the police investigation into the Frug murder can be extracted from it.”
From there, the court deftly, articulately, tore down each of the justifications for the broad exemptions claimed by the Middlesex District Attorney. And demanded compliance with its order.
It’s worth a read. Bookmark it, even.
Whether or not you actually ever plan to use Massachusetts public records law, to look into a cold case, it’s nice to see what happens when laws are enforced. Even against the powerful.
In Massachusetts, homicides are technically investigated by District Attorneys Offices, not local police. The actual investigators are state troopers assigned to the county district attorney’s office.