“This was a videotape made with a camera placed on a public building, videotaping a public field, and as it turns out a public officer was killed,” Collins adds. “We believe it’s a public record based on that.”
For its part, the DA’s office is arguing that tape is part of an ongoing investigation — and that its release could improperly harm the defendants. “Our take, frankly, is that the defendant simply couldn’t receive a fair trial if the videotape were broadcast,” says spokesman Jake Wark. (His assumption — which may be correct — is that the tape would make its way from the Item to local TV newscasts upon release.)
In theory, the investigatory exemption is a tough one to obtain: it’s limited, according to the text of the law, to materials whose disclosure would “probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” What’s more, Conley’s office has already made multiple arrests in the case, which could make it harder for the DA to argue that disclosure would be detrimental. “It won’t disclose a confidential source,” argues Peter Caruso Sr., the Item’s attorney. “It won’t impede the prosecution of a perpetrator. It just doesn’t fall into any of the categories for an investigative exemption.”
On the other hand, Massachusetts courts have tended to look skeptically on attempts by the press to obtain video evidence. The best-known example came in 1993, when the Supreme Judicial Court barred the release of videotape from a police line-up following the murder of Carol DiMaiti Stuart. Stuart was killed by her husband, Charles, who blamed a nonexistent black man for the crime and later committed suicide. The tape in question, which was sought by WBZ-TV, showed Stuart falsely identifying an innocent man as the perpetrator. But despite the fact that the ensuing grand-jury investigation was complete — and that much of the information of the tape had already been made public — the SJC unanimously ruled that, as a product of grand-jury deliberations, it couldn’t be released.
“They have a natural bias against videotapes,” says Caruso of Massachusetts courts. “Even though everybody acknowledges that they’re public records, they’ve effectively carved out a public-records exemption.”
There’s another more recent precedent worth noting as well. This past October, Suffolk Superior Court Judge Merita Hopkins issued a dubious prior-restraint order that kept WHDH-TV from reporting that Paul Cahill and Warren Payne, two Boston firefighters who died in a West Roxbury blaze in August 2007, may have been impaired at the time. (According to published reports, autopsies revealed that Cahill had a high blood-alcohol level and that Payne had traces of cocaine in his system; the Globe broke the story a few hours after Hopkins’s ruling.)
The parallel isn’t perfect. But depending on what the tape in question actually shows, Conley’s reticence — like Hopkins’s — could become a case study in society’s reluctance to undercut the lionization of soldiers, firefighters, and police. Then again, the video could contain precious little interesting content. In that case, though, it’s hard to imagine why it would be crucial to the Suffolk DA’s investigation.