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Lawmakers file bills to make controversial court hearings less secret

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The Massachusetts State House.

Ten state lawmakers have sponsored legislation to lift the veil of secrecy over criminal hearings run by court clerks in district and municipal courts in Massachusetts.

At issue is the current controversial practice in which clerk magistrates and their assistants routinely decide behind closed doors whether to approve charges before suspects are publicly arraigned before a judge.

Companion bills filed in both the House and Senate would require that the hearings generally be open, unless a clerk or judge makes an exception.

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“It is an issue of transparency,” said Representative Antonio F.D. Cabral , a New Bedford Democrat who filed the House bill. “It is an issue of open government.”

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State Representative Antonio F.D. Cabral.
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The bills would also require courts to record hearings electronically or stenographically, so there is a record of what happened. Currently, most clerks do not record the hearings, even though the district court guidelines recommend it. The Senate bill was filed by Senator Viriato M. deMacedo, a Plymouth Republican. And both bills were suggested by the Massachusetts Newspaper Publishers Association.

“In a democracy, court proceedings should never be conducted entirely in secret, without even a record of what occurred,” said Robert Ambrogi, a media attorney and executive director of the newspaper association. “We are glad that a number of legislators agree with us and have taken the lead to sponsor and cosponsor this legislation.”

A Globe Spotlight investigation last fall found Massachusetts is the only state in the country where clerks decide in private hearings whether to approve criminal charges against adults. The process is so secretive that the hearings are typically not listed on court calendars and victims are not always notified or permitted to attend.

The Spotlight Team obtained court data showing that clerks reject thousands of potential charges a year in the private court hearings, even when they found enough evidence to justify issuing criminal complaints. The Globe cited examples where police officers, elected officials, and other public officials avoided charges in the hearings. But because the hearings and files are generally closed to the public, it is unclear who else benefited from the decisions and why.

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The Boston Globe filed a lawsuit with the Supreme Judicial Court last year, arguing the public has a right to access records in cases where clerks found there was enough evidence to go forward with charges at the hearings, but decided to dismiss the cases anyway. The full SJC panel is expected to hear oral arguments in the case this spring.

Separately, Senator Jason Lewis, a Winchester Democrat, filed a separate bill on behalf of a constituent that would require future clerks to have law degrees and mandate regular training for current clerks. Roughly 40 percent of the clerks who oversee the criminal hearings currently lack law degrees. Vincent Lawrence Dixon, the Winchester resident who wrote the bill, lost his bid for a seat on the governor’s council, which approves the governor’s nominations for clerk magistrates, last year. Lewis himself has not sponsored the bill or expressed any opinion about it.

Spokespeople for the governor’s office and courts declined comment on the bills. Governor Charlie Baker and Senate President Karen E. Spilka have publicly said the hearings need more transparency.

In the wake of the Spotlight series, court administrators also appointed a committee to consider possible changes to the clerk magistrate hearings.

Some court officials and criminal defense lawyers have defended the secrecy of the hearings, however, saying it is important to protect the reputations of people potentially facing baseless allegations.

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But even if lawmakers decide to open the hearings to the public, people accused of crimes could still avoid a criminal record if clerks decide there is insufficient evidence to move forward or find other grounds to dismiss a case.

A separate law, the Criminal Offender Record Information statute, says records will not be part of someone’s official criminal history, also known as a rap sheet or CORI report, if charges are dismissed prior to arraignment — and none of the bills would alter that.

Many of the cases handled at clerk magistrate hearings are misdemeanors, such as shoplifting or driving without a valid license. But the Globe also found some involved serious injuries, including accusations of motor vehicle homicide. And 1 in 8 were felonies, including rape, kidnapping, and armed robbery, according to court data from the second half of 2017.

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