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The Massachusetts Supreme Judicial Court heard arguments Tuesday about whether the courts should release records from thousands of hearings where clerks decided to dismiss criminal cases behind closed doors, even after finding there was enough evidence to issue charges.

Last fall, The Boston Globe sued the heads of the trial courts, arguing the public has a right to access the records of these hearings under both common law and the US and state constitutions. The move came after a Globe Spotlight Team report last year found Massachusetts is the only state in the nation to hold such proceedings out of public view, and keep much of the documents secret.

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“Records that are filed with the court are presumptively public,” said Globe attorney Jonathan Albano, arguing public access is vital for the court’s transparency.

But Deputy Attorney General Eric Haskell, representing trial court leaders, insisted records of clerks’ hearings – like grand jury proceedings – should generally be kept confidential to protect the rights of people accused of wrongdoing who haven’t been formally charged.

The “right of public access to court records isn’t absolute,” Haskell told the justices.

Haskell pointed out the Globe and others have the option to still ask clerks or judges to make an exception for specific cases. And they can ask the courts for statistics on clerk magistrate hearings, as the Spotlight Team did for its series last year, he said.

The court hearing was intense and animated, as justices questioned the Globe’s attorney for nearly an hour, even though the typical allotted time for each side is 15 minutes. Some justices raised concerns about whether opening up such records would be a setback to efforts to help people who have brushes with the law avoid adverse publicity and move on with their lives and obtain housing and jobs.

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The Globe’s lawyer pointed out the names of people accused of crimes are typically already available from police records; the court records would simply show how clerks handled the cases.

Justices also peppered the court’s attorney, Haskell, with questions about the importance of transparency and accountability and grilled an attorney for the clerks’ association about many clerks’ resistance to audio recording the hearings.

The Spotlight Team, in its series of stories, “Our secret courts,” found uneven justice in this part of the court system. Data showed that clerks rejected nearly 62,000 requests for charges in 2016 and 2017, including more than 18,000 where clerks found there was probable cause to think the accused committed a crime.

It also found court data showing decisions vary wildly from one court to another. For instance, clerks approved 18.5 percent of requests for charges in Chelsea, compared to 81.9 percent in Worcester, over two years.

The Globe found several instances where public officials avoided charges, including felonies, at private hearings. But because the files are generally not publicly available, it is not clear who else benefited from the decisions and why.

The hearings are usually not listed in court calendars or indexes — and most are not recorded. Court officials frequently won’t even confirm a particular case exists. And even victims aren’t always told about the hearings or allowed to attend.

The clerks magistrates’ association and several groups that provide legal aid to defendants also filed briefs urging the courts to deny the Globe’s request, saying it could harm the reputations of individuals accused of crimes.

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The American Civil Liberties Union of Massachusetts urged the courts instead to require the courts to collect and disseminate additional data about clerk magistrate hearings, such as whether the accused were government employees and represented by attorneys. Unlike traditional criminal proceedings, indigent defendants are not entitled to court-appointed lawyers in clerk magistrate proceedings, even though attorneys say representation can make a significant difference.

The SJC justices appear to be wrestling with how to address questions raised by the Globe series — including suggestions of favoritism, unevenness, and lack of transparency — while still protecting the rights of people accused of crimes who are ultimately never charged.

“All these concerns raised by the Globe are legitimate,” said Justice David Lowy.

In addition, several justices, including Lowy and Chief Justice Ralph Gants, questioned why clerks routinely do not record clerks’ hearings – something already done in most other types of court hearings.

“We require grand jury proceedings to be recorded,” Gants noted. “Why should we not also require these to be recorded?”

The District Court guidelines contend it is “good practice” to record all clerk-magistrate hearings, but the court working group found most clerks do not follow that suggestion. Peter Haley, a lawyer for the Association of Magistrates and Assistant Clerks, argued that recording hearings would inhibit everyone in the hearing from speaking openly in resolving messy disputes, forcing them to be “mindful” of what they are saying.

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“Don’t we want people to be mindful of what they’re saying?” said Justice Frank Gaziano.

Justices also appeared to be considering whether to order the courts to collect and release more data on clerks’ hearings, release redacted versions of court records without the names of people accused of crimes, or even whether to crack down on lawyers who brag about their success in clerk magistrate hearings. The clerks association’s lawyer said it would support the latter suggestion.

“No lawyer should be advertising they have success with respect to clerk magistrate hearings,” said Haley, a lawyer for the clerks’ association. “The implicit suggestion here is that they have an ‘in’ . . . That’s entirely inappropriate.”

A court working group suggested the District Court guidelines should be updated, though so far has mandated only minor revisions and left open-ended other recommendations. It also called for better and more consistent collection of court data.

Separately, 10 state lawmakers have sponsored legislation to require clerks to record hearings and make hearings public, unless a clerk or judge makes an exception. The bills have been referred to the judiciary committee.


Todd Wallack can be reached at twallack@globe.com. Follow him on Twitter @twallack.