Opinion
SUCR201800252
08-09-2018
COMMONWEALTH v. Bryon HEFNER
MEMORANDUM AND ORDER ON COMMONWEALTH’S MOTION FOR RECORDS PURSUANT TO MASS.R.CRIM.P. 17(a)(2)
William F. Sullivan, Justice of the Superior Court
This case is before the court on the Commonwealth’s motion for the production of material generated in connection with the Massachusetts Senate investigation of former Senate President Stanley C. Rosenberg ("Rosenberg"). For the reasons set forth below, the Commonwealth’s motion is DENIED.
BACKGROUND
In December 2017, Massachusetts State Police and Boston Police opened a criminal investigation into allegations that the defendant, Bryon Hefner ("Hefner") sexually assaulted four men over a period of several years. Around the same time, the Massachusetts Senate initiated an investigation into the conduct of Hefner’s spouse, Rosenberg, to determine "whether he violated the rules of the Senate." See Senate Order No. 2228 (2017). On December 18, 2017, the Senate retained Hogan Lovells, LLP ("Hogan Lovells") as Special Investigator.
The Hogan Lovells investigative team reviewed business records provided by the Senate to identify forty-five people and interview them over the course of three months. See Report of Special Investigation in the Matter of Massachusetts Senate President Stanley Rosenberg at 1 (April 25, 2018) (hereinafter, "Senate Report"). Hogan Lovells did not create formal, written statements for any of the persons it interviewed. Instead, the attorneys present during the interviews took notes that were subsequently incorporated into an interview memorandum.
Two interviewees nonetheless submitted informal statements to Hogan Lovells. "Person A" sent one of the Hogan Lovells attorneys an email to explain and provide context for certain text message exchanges Person A had with Hefner. In his email, Person A claimed to have received a picture from Hefner of Hefner’s penis. "Person B" reported that Hefner had grabbed his genitals for an extended period of time. Person B provided Hogan Lovells contemporaneous emails to unnamed coworkers that vaguely alluded to Hefner’s alleged misconduct.
It is unclear whether Hefner transmitted the photo of his penis to Witness A during the text message exchange at issue.
Throughout the interview process, Hogan Lovells and the Senate assured interviewees that their identities would remain confidential. On January 25, 2018, the Massachusetts Senate Committee on Ethics released a statement to update "the public on relevant and important actions with respect" to the investigation of Rosenberg. The statement declared, inter alia, that "[f]rom the outset, the Committee has affirmed and reaffirmed its commitment to protect the identities of all those who provide information to the Special Investigator ... Consistent with that commitment, the Committee has structured the investigation so that it will not learn the identity of any witness or potential witness." The statement also noted that the Committee had unanimously adopted a motion that required Hogan Lovells and the Senate Counsel to "maintain as confidential" and "not disclose to any party ... the identity or identifying information of any victim, witness, subpoena recipient or other person who provides information ... unless the person specifically consents to being identified, or disclosure is required by judicial process or procedure."
The importance of keeping interviewees’ identities confidential is emphasized by the fact that no individuals came forward independently to participate in the investigation.
On January 30, 2018, the Senate received a grand jury subpoena from the Massachusetts Attorney General seeking the same business records that Hogan Lovells used to conduct its investigation. The Senate fully produced the materials requested.
On March 29, 2018, a Suffolk County grand jury indicted Hefner on five counts of indecent assault and battery, one count of open and gross lewdness, and four counts of electronic recording or surveillance of an unsuspecting nude or partially nude person.
On May 2, 2018, the Massachusetts Senate publicaliy released an approximately eighty-page report detailing the results of Hogan Lovells’ investigation. Section III(C)(2) of the Senate Report, entitled Hefner’s Unwanted Sexual Advances and Sexual Assault, includes summaries of anonymous witnesses’ accounts of alleged sexual misconduct by Hefner. Senate Report at 43-45. The Senate Report states that the accounts are anonymous because "each of the witnesses asked not to be identified." Senate Report at 43.
On July 24, 2018, the Commonwealth filed the present motion pursuant to Mass.R.Crim.P. 17(a)(2) seeking an order directing Hogan Lovells to produce:
1. statements of persons who testified before the grand jury and/or were interviewed by law enforcement in this case, as set forth in a list to be provided under seal to counsel for the Senate and Hogan Lovells;
2. identities and statements of all persons interviewed regarding events described in § III(C)(2) on pages 43-45 of the Senate Report, including Footnote 38 on page 45; and
3. statements of Hogan Lovells agents, excluding attorney work product, regarding interviews with the persons covered by §§ 1-2 above.
DISCUSSION
I. Standard of Review
Rule 17(a)(2) authorizes the issuance of a summons to "command the person to whom it is directed to produce the books, papers, documents or other objects designated therein." In Commonwealth v. Lampron, 441 Mass. 265 (2004), the Supreme Judicial Court "adopted the standard used by Federal courts in connection with subpoenas issued pursuant to Federal rule 17(c)." Commonwealth v. Odgren, 455 Mass. 171, 183 (2009). Specifically, "a party moving to subpoena documents to be produced before trial must establish good cause, satisfied by showing (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application [was] made in good faith and is not intended as a general ‘fishing expedition.’ Commonwealth v. Kawa Lam, 444 Mass. 224, 230 (2005), quoting Lampron, 441 Mass. at 269. "The decision whether documentary evidence and objects should be produced prior to trial under rule 17(a)(2) is reserved to the sound discretion of the judge." In re Jansen, 444 Mass. 112, 118 (2005).
II. The Commonwealth’s Motion
As set forth ante, the Commonwealth has requested an order directing Hogan Lovells to produce: (1) "statements of persons who testified before the grand jury and/or were interviewed by law enforcement in this case"; (2) the "identities and statements of all persons interviewed" regarding the alleged sexual misconduct summarized in Section III(C)(2) of the Senate Report; and (3) "statements of Hogan Lovells’ agents, excluding attorney work product, regarding interviews with the persons covered by [items 1 and 2]."
Though the records sought are in Hogan Lovells’ possession, they remain the property of the Massachusetts Senate.
Most significantly, the Commonwealth has failed to establish that the materials requested are "not otherwise procurable reasonably in advance of trial by exercise of due diligence" or that the failure to obtain the requested materials "may tend unreasonably to delay the trial." Kawa Lam, 444 Mass. at 230. The materials sought are not the only available source of the identities of the witnesses Hogan Lovells interviewed and the facts known by those witnesses. See Commonwealth v. Dwyer, 448 Mass. 122, 142 (2006) (moving party has "an affirmative obligation to show that no other source likely exists for the desired records"). As stated, Hogan Lovells identified interviewees based on records that were produced to the Commonwealth pursuant to a subpoena issued to the Senate on January 30, 2018. The Commonwealth has failed to articulate why it cannot also use the records to independently determine those witnesses’ identities and interview them. See Commonwealth v. Sealy, 467 Mass. 617, 627 (2014) ("[R]ule 17(a)(2) is not a discovery tool to be invoked merely for the exploration of potential evidence") (quotation omitted). Hogan Lovells used the same materials to identify and interview the witnesses in just three months, viz., substantially less time than the the Commonwealth has to prepare for trial.
Though the names of these witnesses in Section III(C)(2) are anonymized in the Senate Report, the witnesses’ respective roles in the General Court, and the approximate time frame of the incidents in question are identified.
The Commonwealth has also failed to establish that the materials sought are "likely to be admissible at hearing or trial" and "ha[ve] a rational tendency to prove [or disprove] an issue in the case." Kawa Lam, 444 Mass. at 230, quoting Lampron, 441 Mass. at 269-70. The Commonwealth’s request broadly seeks all of the records in Hogan Lovells’ possession regarding its interviews of persons who also participated in the Commonwealth’s investigation. However, Hogan Lovells has attested that the majority of its interviews concerned "information concerning the Office of the Senate President, the Senate in general, and other matters that were not related to allegations that defendant Hefner had sexually assaulted them or others." The Commonwealth is not entitled to any materials concerning interviews or portions of interviews that bear no relevance to Hefner’s alleged crimes. Compare United States v. Nixon, 418 U.S. 683, 700 (1974) (prosecutor entitled to materials requested under Fed.R.Crim.P. 17(c) upon showing that "there was a sufficient likelihood that each of the [materials requested] contained] conversations relevant to the offenses charged in the indictment").
The Court has no basis to doubt the truth of Hogan Lovells’ representations, as they were made by officers of the court under penalty of perjury.
Alleged sexual misconduct is, however, referenced in the statements Hogan Lovells received from Persons A and B, and arguably, in the statements of Hogan Lovells’ agents regarding their interviews of Persons A and B, and the statements of Hogan Lovells’ agents regarding their interviews of individuals who described the events summarized in Section III(C)(2). Even so, the Commonwealth has failed to establish that these materials are relevant to the charges presently pending against Hefner.
The Commonwealth does not suggest that its own investigation relied on the Senate Report or investigation, and has indicated that the instances of sexual misconduct described in the materials sought are not the same instances of sexual misconduct underlying Hefner’s charges. The Commonwealth has not articulated how materials describing these unrelated incidents would have a rational tendency to prove or disprove the sexual misconduct presently at issue in this case, but merely contends, with no supporting details, that the materials are relevant to Hefner’s "state of mind, modus operandi, pattern, scheme or plan." Commonwealth v. Jones, 478 Mass. 65, 68 (2017) ("Potential relevance and conclusory statements regarding relevance are insufficient to satisfy the rule") (quotation omitted); Commonwealth v. Mitchell, 444 Mass. 786, 798 (2005) ("[T]he facts set forth in the motion’s supporting affidavit must not be conclusory, but specific and detailed"). Compare Commonwealth v. Matis, 446 Mass. 632, 635 (2006) (burden to demonstrate relevance met where defendant established that the object of his Rule 17(a)(2) request bore "directly on whether the crime could have occurred"); Commonwealth v. Reed, 444 Mass. 803, 808 (2005) (summons appropriate where records sought "bore on a critical fact in the defendant’s case"). The need for these materials and the grounds for their admissibility is thus speculative at this point.
The Commonwealth’s additional contention that the materials "may corroborate what [the interviewees] told state and Boston police of [sic] the grand jury; but may also contradict their prior statements or otherwise provide information favorable to the defendant" (emphasis added) is likewise too conclusory to establish that the materials sought have a rational tendency to prove or disprove an issue in the case. See Sealy, 467 Mass. at 628 (defendant failed to meet burden to demonstrate relevance of records "where all of the allegations contained [in his affidavit] were couched in hypothetical language," e.g., that records "could contain statements" about the victim’s state of mind). The Commonwealth’s affidavit does not identify any of the witnesses it intends to present at trial, let alone their expected testimony and how the requested materials may be used to bolster that testimony or impeach it. Compare United States v. La Rouche Campaign, 841 F.2d 1176 (1st Cir. 1988) ("[W]here a putative key witness, whose general testimony is already known, is scheduled to testify, we cannot hold it an abuse of discretion to compel the pretrial production of a substantial interview of that witness"). Cf. Commonwealth v. Bourgeois, 68 Mass.App.Ct. 433, 436 (2007) (finding "[g]eneralizations and unsubstantiated statements concerning a particular victim’s credibility are not enough" to demonstrate "good faith, specific, and reasonable basis for believing that ... records" would contain material evidence). Assuming, arguendo, that the Commonwealth’s affidavit did assert, with the requisite specificity, how the requested materials could impeach certain witnesses’ testimony, "[g]enerally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial." Nixon, 418 U.S. at 701. Where, as here, the moving party’s affidavit lacks the requisite specificity, and thus fails to establish that the materials sought are relevant, the affidavit will also fail to "substantiate[ ] that the defendant is not engaged in a prohibited fishing expedition." Martin v. Commonwealth, 451 Mass. 113, 122 (2008).
In arriving at this decision, the Court is fully cognizant of the fact that certain alleged victims have made it clear that they do not wish to be identified and that they desire to remain anonymous. The Committee and investigators made a commitment to these individuals to protect their identities. The Senate Committee unanimously adopted a motion that required Hogan Lovells and the Senate Counsel to "maintain as confidential" and "not disclose to any party ... the identity or identifying information of any victim, witness, subpoena recipient or other person who provides information ... unless the person specifically consents to being identified, or disclosure is required by judicial process or procedure." The Commonwealth is now seeking to uncover the identities of these alleged victims. These are individuals who did not come forward willingly, and only spoke to Hogan Lovells after repeated assurances that their identities would remain confidential. The Commonwealth seeks the information as to the identities of these individuals against their specific wishes. The phrase that was added to the promise of confidentiality unless "required by judicial process or procedure" may be a meaningful statement to attorneys and investigators but may mean something altogether different to alleged victims. The promise of confidentiality should not be an empty one or one significantly limited by pro forma words. There may be any number of compelling reasons why an alleged victim does not want to be identified or come forward for the prosecution of a criminal case. This decision is highly personal and a complicated one for many victims of sexual assault. The alleged victims in this case were told that their identities would be protected as much as possible. The court respects that representation. As such, the Commonwealth must be held strictly to the requirements of Rule 17. As of this time and on this record, the Commonwealth has failed to show that the information sought is not available by other means than the production of these records. The Commonwealth, by having the same business records as the Senate investigators, has the same starting point for the search of alleged victims and crime.
The Commonwealth has also failed to show that the information sought is likely to be admissible at hearing or trial and have a rational tendency to prove or disprove an issue in the present case.
For these reasons, the Court finds that the Commonwealth has failed to meet the standard required under Commonwealth v. Lampron, 441 Mass. 265 (2004), and therefore, its motion is DENIED.
ORDER
For the foregoing reasons, the Commonwealth’s motion is DENIED.