In Bryon Hefner case, Senate said witnesses would be confidential. Judge says confidential means just that
A Superior Court judge on Monday blocked prosecutors’ bid for the names of witnesses who cooperated with an internal probe of the state Senate’s former president, Stanley C. Rosenberg, saying he respects the chamber’s promise to protect their identities.
The decision is a blow to Attorney General Maura T. Healey’s office, which argued the records could provide a window into additional potential victims as it prosecutes Rosenberg’s husband, Bryon Hefner, on multiple charges of sexual assault.
Judge William F. Sullivan said the witnesses did not come forward willingly in the Senate investigation and spoke to Senate-hired investigators from Hogan Lovells US LLP only “after repeated assurances” their names would remain confidential.
Last month, Sullivan said in a hearing that there might be “wiggle room” for the Senate to share its documents. But in his order, he said the promise of confidentiality “should not be an empty one.”
“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,” Sullivan wrote in his nine-page ruling. “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,” he added.
“The court respects that representation.”
Healey’s office had targeted the identities — and records from interviews — of the witnesses because they were are not among the accusers they’ve identified in their own criminal case against Hefner.
One witness, who was a State House employee at the time and is identified as Witness A in court filings, provided Senate investigators with copies of texts with Hefner, as well as e-mails, in which the witness “referred” to Hefner sending a photo of what he said was Hefner’s penis.
Another person, Witness B, told investigators that Hefner had “engaged in unwanted touching of a sexual nature,” including grabbing the witness’s genitals.
The allegations, prosecutors argued, were “eerily similar” to many of the charges already lodged against the 31-year-old, who pleaded not guilty in April to five counts of sexual assault, four counts of distributing nude images without consent, and one count of criminal lewdness. They argued the Senate report included additional allegations “relevant to our case.”
The request drew resistance from both Hefner’s attorney and the Senate, which said it had already turned over other records, including e-mails, to Healey’s office in January in response to a subpoena. Those documents, the chamber’s attorney said, provided the basis for its own investigators to track down the witnesses.
Sullivan agreed, saying Hogan Lovells attorneys identified and interviewed the witnesses in three months — “substantially less time,” he said, than prosecutors have to prepare for Hefner’s March 2019 trial. And while their names aren’t included, Hogan Lovells’ report on Rosenberg included other information, including approximate time frames of the allegations and the witnesses’ positions in the State House, that could help guide prosecutors.
“The Commonwealth has failed to articulate why it cannot also use the records to independently determine those witnesses’ identities and interview them,” Sullivan said, adding that prosecutors have “the same starting point for the search of alleged victims and crime.”
Healey’s request was significant because it signalled prosecutors could seek to expand the case against Hefner. Her office declined to comment on the order Monday.
“Our investigation of this matter continues,” spokeswoman Chloe Gotsis said.
Scott Zoback, a spokesman for Senate President Karen E. Spilka, said her office was still reviewing the order Monday, but he reiterated that the Senate is intent on keeping its promises to witnesses “to the fullest extent possible.”
“The Senate investigation was built on a principle of privacy for those witnesses who came forward. We continue to stand by that ideal,” Zoback said.
Tracy Miner, Hefner’s attorney, called Sullivan’s order “well-reasoned.”
It “protects both the alleged victims and the defendant’s rights,” she said in an e-mail.
The criminal case isn’t the only legal front on which Hefner is fighting. A judge is weighing whether to publicly identify a man who sued Hefner and Rosenberg after their attorneys argued that unmasking Hefner’s accuser would create a “fair playing field.”
The accuser, identified as John Doe in court documents, is one of the complainants in Hefner’s criminal case, according to his attorney.
Judge Robert N. Tochka has ordered the man’s identity be sealed from public view at least until Friday.