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A simple way to open up ‘secret courts’

Clerk Magistrate Kevin Murphy looks through paperwork at the Chelsea District Court Clerk's Office in August.Nic Antaya for The Boston Globe

Just one small change in the law would set right much that is wrong with the state’s unique and utterly archaic system of closed-door court hearings presided over by clerk magistrates.

Last week a bill to make that small change got a hearing on Beacon Hill, where those clerk magistrates have always had a lot of powerful friends. But this year it’s high time transparency and the public’s right to know took priority over the influence of this narrow interest group.

For as long as anyone can remember, Massachusetts Trial Courts have treated so-called show cause hearings — a preliminary step in the criminal justice process — to be presumptively closed unless “the magistrate concludes that legitimate public interests outweigh the accused’s right to privacy.”


The many flaws in these “secret court” proceedings — and some of the more dubious decisions in cases involving the politically well connected — were laid bare in a Globe Spotlight series. It documented wide disparities among district courts in the percentage of cases in which criminal complaints were actually issued and even greater racial disparities within those numbers. The secrecy of these hearings cloaks a pattern of the politically wired getting a break.

In September, the Supreme Judicial Court, ruling in a case brought by the Globe and intended to open up certain records relating to that process to public scrutiny, made some incremental steps toward making the proceedings more transparent. In a decision authored by Chief Justice Ralph Gants, the court opted to “exercise our superintendency authority to require that all show cause hearings be electronically recorded.” It gave the Trial Court until next September to figure out how to get that done, adding “We recognize that implementing our directive . . . will take time, money, and training.”


The court also said, “If allegations were to surface that a clerk magistrate acted inappropriately during a show cause hearing such as by favoring a certain attorney, or by acting differently based on the race, gender, nationality, or citizenship of a litigant, or by acting abusively toward a litigant or attorney, an electronic recording would be the best evidence as to whether such misconduct occurred (and also the best means for a clerk magistrate to refute an unfair allegation).”

Of course, the easiest way to refute such allegations — and bring these clerk magistrate hearings into the light — would be to make them presumptively open, rather than presumptively closed.

That’s exactly what a bill filed by Representative Antonio Cabral and Senator Bruce Tarr and supported by at least five of their colleagues would do — basically turn the system around and make it consistent with every other court proceeding in the state.

“Any hearing . . . and any record associated with such hearing, shall be presumed to be open to the public unless the court, or said officer thereof, makes a written finding, for good cause shown, that the defendant’s interest in privacy outweighs the public’s right of access,” the bill says. To actually close the courtroom would require a hearing “on the record” at which even an “interested non-party” like a media outlet would have to be heard. Any subsequent ruling to close the courtroom would have to specify the reason why. The bill also reiterates the SJC’s requirement that it be recorded. (The Massachusetts Newspaper Publishers Association, of which the Globe is a member, publicly supports the bill.)


Yes, under an open system some complaints that don’t result in criminal charges will become matters of public record. But the benefits of a transparent judicial system far outweigh the potential embarrassment to those facing such complaints.

For nearly three decades, the Massachusetts court system has been a model of transparency, allowing cameras into most proceedings, allowing reporters to bring in laptops and electronics so they can report from right inside the courtroom.

Only when a clerk magistrate is presiding, rather than a judge, do open court rules not apply. Massachusetts is the only state where such hearings to approve criminal charges against adults happen in secret. That needs to change. The Legislature can and should make that happen in the interest of both justice and transparency.

Correction: An earlier version of this editorial misspelled the first name of Representative Antonio Cabral.