While members of the public can listen in on this hearing for Thomas Koonce without seeing it, they are unable to record the hearing

Many from the public and press will want to virtually attend the first commutation hearing for any prisoner in Massachusetts since 2010. That year, then-Gov. Deval Patrick granted one commutation—for a woman serving time in a medium-security prison for drug offenses.

The upcoming hearing, to be held at 10am on Oct. 27, is for Thomas Koonce, a life-sentenced prisoner, and will be before the Parole Board—which, in this case, technically becomes the Advisory Board of Pardons to the governor. A commutation can pave the way for parole eligibility for a person sentenced to life without parole. After the board holds a hearing, the recommendation goes to the governor; if he grants the commutation, then our elected Governor’s Councilors vote on it. 

While this is a major moment in the Mass criminal legal system, members of the public won’t get to see this hearing, arguably in violation of state law.

According to the state’s General Laws, meetings of any public body are “to be open to the public”; this includes hearings for those serving life sentences with parole eligibility. In Mass, anyone is permitted to attend these hearings, and that includes meetings by “remote participation.”

Since May, the Board has held virtual hearings for lifers eligible for parole. Most of the seven members go to the Natick office in person for these meetings, while the prisoner, i.e. parole petitioner, appears on screen from an institution. Lawyers and those who testify for and against the prisoner get to have the familiar square with their face in it.

The public, however, has been barred from attending virtually on screen. In other words, the Parole Board is interpreting an “open meeting” to mean that only phone admission is open to all. People dial in for the two-hour meeting, and are told to “Please put your phone on mute.”

A lawyer from the Parole Board said in an email, “Members of the public not giving testimony are given audio access but not video access, as it could potentially be disruptive to the hearing.”

I have attended five virtual lifer hearings, and while it is true that the Parole Board encounters connectivity problems, it is not clear that has anything to do with allowing people to come on screen, or with whether they turn off their cameras or their sound. The board uses a very secure virtual platform, Webex, which supports, at a minimum, 100 people on screen, said  Ryan Wengreen of Cisco, developer of Webex, per an email and phone conversation.

This development over a lack of transparency is just the latest in a series of problems we have reported on regarding the Parole Board. I wrote about the “Dysfunctional Mass Parole Board’s Inevitable Coronavirus Crisis” in April and in subsequent months, and the situation has only become worse during COVID-19. As for those who are filing for executive clemency—reducing sentences or erasing convictions—as of Aug. 31, per the Boston Globe, there were 117 commutation and 209 pardon petitions that the Parole Board had not acted on.

The Parole Board let Koonce’s commutation petition sit for six years. It was first filed before the body in 2014 by Attorney Patricia Garin, and after the board took no action on it, Koonce’s current attorney, Timothy C. Foley, updated and refiled the petition. Since 2015, when Governor Charlie Baker took office, there have been no commutations or pardons sent to him by the board.

While members of the public can listen in on this hearing for Thomas Koonce without seeing it, they are unable to record the hearing. The board says anyone can make a public records request for a recording after the hearing—hardly ideal for reporters, since these requests take many days if they are ever returned at all—and to complicate matters, the Parole Board only produces DVDs, not MP4s which they say are too large to be emailed.

For students learning to be lawyers? Family members, friends, or foes of the petitioner? The only option is to listen on the phone.