Talk about getting more than one bite at the apple. From the ABA Journal:

A new Massachusetts court rule allows judges to explain their decisions after the fact—in supplemental memoranda, rather than interviews with the press.

An appendix to the new judicial conduct rule says judges may issue after-the-fact memoranda to alleviate a misunderstanding by the parties or the public, but they should not be issued solely in response to public criticism, the Media Law blog reports.

The Supreme Judicial Court said in an appendix to the new rule that judges should consider four factors when deciding whether to issue memoranda. They are the need to alleviate misunderstanding, the time elapsed, the risk of unfairly affecting appellate review, and the danger that it would suggest opinions are influenced by public criticism.

Media Law Blog reports:

“We encourage judges to explain the basis for their decisions on the record at the time the decisions are made, including decisions concerning bail and sentencing,” the appendix says. When a judge decides at some point after issuing a ruling to write an explanatory memorandum, the appendix says, the judge should carefully consider four factors:

• The importance of avoiding or alleviating the parties’ or the public’s misunderstanding or confusion by supplementing the record to reflect in more detail the reasons in support of the judge’s earlier decision.
• The amount of time that has elapsed since the order was issued and the extent to which the judge’s reasons for the decision remain fresh in his or her mind.
• The risk that an explanatory memorandum may unfairly affect the rights of a party or appellate review of the underlying order.
• The danger that the issuance of an explanatory memorandum would suggest that judicial decisions are influenced by public opinion or criticism voiced by third parties, and would not promote confidence in the courts and in the independence and impartiality of judges.

In no case should a judge issue an explanatory memorandum “solely to respond to public criticism of the decision.” Nor should a judge issue such a memorandum “if the court no longer has the authority to alter or amend the underlying order.”

Yikes. I know nothing about Massachusetts courts, but this strikes me as unusual. If a Judge doesn’t like popular accounts of his opinion, he can then clarify it after the fact? Would these post-ruling statements be precedential? Even if they are not officially precedential, surely some litigants can look to them to explain the meaning of a ruling. This is the equivalent of post-enactment legislative history for Courts!

And I have no doubt some Bostonian on the bench will issue some statement clarifying any findings from Major League Baseball linking any Red Sox players to steroids.