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Records open a rare window into Mass. ‘secret courts’

Clerk Magistrate Kevin Murphy (left) looked through paperwork at the Chelsea District Court Clerk's Office.Nic Antaya for The Boston Globe

From one courthouse to the next, Massachusetts clerk magistrates and assistant clerks continue to differ widely in how they handle requests for criminal charges reviewed during confidential hearings, according to new court data provided to the Globe.

The newly released data for 2018, issued in response to a Globe request, indicated clerks in Worcester District Court approved 83 percent of applications for criminal charges after so-called show cause hearings, while clerks in Chelsea District Court approved just 26 percent of requests for charges. The court data also suggested white defendants were slightly more likely to avoid charges last year than people of color. The hearings and files are typically closed to the public when cases are dismissed, so the statistics are a rare window into the uneven results inside the system.


A Globe Spotlight Team report last year, Our Secret Courts, found Massachusetts is the only state in the country where court clerks are empowered to decide in private whether to issue criminal charges in certain cases, including some involving public officials, raising suspicions of unfairness in the state’s justice system. The Spotlight report also found dismissal rates varied dramatically in previous years based on geography and to a smaller extent based on race.

When suspects are accused by police of misdemeanor crimes but aren’t arrested, they are generally entitled to a hearing, in which they can try to persuade clerks to dismiss the case before they are ever arraigned publicly on charges before a judge. In addition, court rules also allow clerks to hold hearings in felony cases at the request of police or even in cases when ordinary citizens ask clerks to issue criminal charges.

Chris Dearborn, director of the Suffolk Defenders Program at Suffolk University Law School, called the range of dismissal rates from one court to another “staggering.”


“We would want an evenhanded administration of justice across the board,” said Dearborn, who said the courts should release additional data on the hearings, such as whether defendants were represented by an attorney. Unlike in most criminal proceedings, indigent defendants in these cases have no right to a court-appointed attorney because they have yet to be officially charged with a crime.

Part of the reason for the variation in dismissal rates is that clerks, many of whom lack law degrees, have different philosophies about how to handle cases. Chelsea District Court Clerk Kevin G. Murphy said he typically dismisses cases if a victim or other witnesses do not personally testify at the hearings, while Worcester District Court Acting Clerk Magistrate Brendan T. Keenan said his court will typically accept the testimony of a police officer summarizing what the victims and others reported.

The Spotlight report cited a number of examples in which public officials avoided charges after closed-door hearings, including one case involving a Boston police officer who was accused of falsely claiming thousands of dollars in overtime. But because the hearings and files are mostly closed to the public, it is unclear who else was affected by the decisions and why.

In May, the Supreme Judicial Court heard arguments from Globe lawyers, arguing the court should make public any case in which clerks found probable cause to believe someone committed a crime, the legal standard for issuing charges, but still declined to issue charges. The SJC has yet to issue a ruling. A court committee also recommended the court revamp its guidelines for how to handle clerk-magistrate hearings.


Court administrators have defended the hearings as important tools to “screen out questionable cases or to resolve minor offenses without creating lifetime criminal records.” But critics have challenged the way the hearings are conducted, including the lack of transparency. Ten state legislators sponsored a bill earlier this year that would make most of the hearings public and require them to be recorded.

The 2018 court data also show that white defendants avoided charges after 47.1 percent of hearings, compared with 42.7 percent for people of color at the hearings, similar to the gap the Spotlight Team previously found by reviewing data for the second half of 2017.

Iván Espinoza-Madrigal, executive director of Lawyers for Civil Rights in Boston, said one possible factor is that indigent defendants are not entitled to a court-appointed attorney for the hearings. And black and Latino families have lower incomes, making it more difficult to hire a private attorney.

Jennifer Donahue, a spokeswoman for the court system, said she couldn’t speculate on why the statistics show outcomes varied based on geography and race, but she noted it could be affected by many factors, including the types of cases filed with each court or whether people accused of crimes bothered to attend the hearings.

“The facts of each case are different,” Donahue said.

Overall, the new court data show clerks dismissed nearly half of the 59,000 cases that went to hearings last year, including felonies like attempted murder, kidnapping, bribing a juror, embezzlement, arson, igniting explosive, and aggravated rape. The 2018 data show about one in nine charges considered in these closed hearings were felonies.


The data also show that clerks dismissed at least 125 charges related to operating under the influence after the hearings. But because the files and hearings are generally closed to the public, outside observers say they cannot tell whether the decisions were appropriate.

“The big concern here is the lack of transparency,” said J.T. Griffin, chief government affairs officer for Mothers Against Drunk Driving, a national advocacy group. He said the closed-door hearings could create the appearance that special “deals are being cut.”

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