SJC orders clerks in ‘secret court’ cases to record all hearings

The John Adams Courthouse, which is home to the Massachusetts Supreme Judicial Court.Lane Turner/Globe Staff/File

The state’s highest court on Monday ordered district court clerks to audio record all closed-door hearings that vet criminal complaints and regularly gather demographic data on these proceedings, saying such measures are important to promote trust and transparency in the system.

The ruling comes in response to a Boston Globe lawsuit and series of articles by the Globe’s Spotlight Team that found wide disparities across courts and allegations that politically connected individuals received preferential treatment in these so-called “show cause” hearings, which handle mostly misdemeanor but also many felony charges.

The Supreme Judicial Court denied the Globe’s request for a specific subset of records — cases in which clerk magistrates found probable cause that defendants committed crimes, yet refused to issue charges. Still, the high court ordered other sweeping changes that it said was necessary to instill public confidence in this system, including for the first time mandating audio recordings of hearings that many clerks previously did not tape.

“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),” Chief Justice Ralph D. Gants wrote in the ruling.

Gants said even as the court finds that such records are not presumptively public under common law or the First Amendment, as the Globe argued, clerks should not categorically deny all access to the public.

“Any member of the public . . . may request that the records of a particular show cause hearing be made publicly available, and a clerk-magistrate or a judge shall grant such a request where the interests of justice so require,’’ Gants wrote.

Historically, clerks in these hearings often refused to even publicly acknowledge that such records or cases existed.

Show cause hearings are held across the state when a person has not been arrested by police, but is accused by law enforcement or, in some instances, a member of the public of committing a crime. Clerk-magistrates in the District Court and Boston Municipal Court departments hold closed-door hearings where they can hear from witnesses and then decide whether to issue criminal charges against the accused, some of whom are represented by lawyers. Massachusetts is the only state with such a system.

The Globe filed a lawsuit last year arguing that the public has a right to gain access to these records in which probable cause was found. Data obtained by the Globe found that clerks rejected nearly 62,000 requests for charges in 2016 and 2017, including more than 18,000 — or 29 percent — where clerks found there was probable cause.

Dan Krockmalnic, the Globe’s general counsel, said the public will benefit from Monday’s decision. “With today’s holding, the Court has agreed that a ‘watchful eye’ from the public and journalists can help promote transparency and accountability in these hearings,” he said. “These ‘secret courts’ are about to become less secret.”

Iván Espinoza-Madrigal, the executive director of Lawyers for Civil Rights, said the decision “creates a structure for accessing records on an individual case-by-case basis, which will be very useful for the media and for community groups to be able to get access to information that right now, we simply don’t have.”

Daniel J. Hogan, the clerk magistrate for the Boston Municipal Court system’s central division and the head of the statewide clerks association, did not return a request for comment. Defenders of the system have said the system screens out questionable cases and spares some individuals involved in minor offenses from a criminal record.

The court on Monday also made clear that individuals who requested access to show cause records could appeal to a judge, and ordered administrators to routinely compile data to assess disparities in the system. They suggested collecting data on defendants’ race, gender, and whether they have hired an attorney or not.

“If the data is showing that defendants who have counsel are much more likely to not have complaints issued against them, we can make the argument that there should be more pro bono services or a right to counsel at clerks’ hearings,” said Margo Lindauer, the director of the Domestic Violence Institute at the Northeastern University School of Law.

The Spotlight Team report from last year, Our Secret Courts, found several cases in which public officials and law enforcement officers were able to escape criminal charges after these closed hearings despite evidence of a crime. In one case, felony charges against a Boston police officer disappeared after he was accused of falsely claiming thousands of dollars in overtime. Another case involved a now-retired judge who was not charged with stealing a watch from Logan International Airport, despite a security video allegedly showing the crime.

The Globe’s reports also found that white defendants are slightly more likely not to be charged than people of color, and revealed large disparities in outcomes between district courts. Worcester District Court last year approved 83 percent of applications for criminal charges in such hearings, while clerks in Chelsea District Court approved just 26 percent of requests for charges, data shows.

After the Spotlight Team’s report, the court convened a working group that issued recommendations. Ten state legislators also sponsored a bill earlier this year that would make most of the hearings public.