If the Massachusetts judiciary won’t move quickly to reform the ongoing system of secret court clerk magistrate hearings, then Beacon Hill is prepared to do the job for them.
It seems some lawmakers were as shocked as the rest of us when the Globe Spotlight Team reported last fall on how many court hearings are shrouded in secrecy. The report documented that tens of thousands of show cause hearings — preliminary proceedings conducted by clerk magistrates that often determine whether a case is dismissed or will ultimately be brought to trial — are held behind closed doors, quite often without being recorded.
It is the very opposite of the kind of transparency on which the American judicial system — and its precursor right here in Massachusetts — was built.
Legislators, many of them lawyers, have often had a cozy relationship with clerk magistrates, who are not judges and may lack even law degrees. It was, after all, the Legislature that expanded the show cause system to include hearings on felonies, not just misdemeanor offenses.
Supporters of the magistrate system defend it as a way to resolve disputes quickly and prevent minor cases from clogging courtrooms. But the secrecy of the proceedings is unacceptable. Clerk magistrates might be paragons of fairness, or they might hand out their decisions arbitrarily — but without consistent transparency, how is the public supposed to know either way?
Now some legislators — with the support of the Massachusetts Newspaper Publishers Association, of which the Globe is a member — are proposing to bring those court proceedings out of the shadows. Companion bills filed in the House and Senate would mandate that the hearings be open, unless there is a good reason to close the courtroom.
It shifts the burden in a way the court should have done itself ages ago. In fact, a 2007 decision by the Supreme Judicial Court made provision for show cause hearings to be open in cases “where an incident has already attracted public attention” . . . and “the interest in shielding the participants from publicity is necessarily diminished, while the public’s legitimate interest in access is correspondingly strong.”
The latter standard was applied to a recent show cause hearing in Nantucket District Court involving an allegation of sexual assault against actor Kevin Spacey. A recording of that hearing was also made available.
The bills up for consideration on Beacon Hill this year would also mandate a record be kept of all such hearings — either by actual recording or having a stenographic record. That would certainly address the frequent complaint by district court clerk magistrates that their courts aren’t equipped with recording devices.
Legislation may not be the only way to fix the system. The Globe has filed suit arguing the public has a right to access records where clerks found there was enough evidence to go to trial but then dismissed the cases anyway. A hearing before the full bench of the SJC is scheduled for May.
A court-appointed task force has also been formed to look at the court-mandated rules under which these hearings take place. That would, of course, be the easiest way to effect change. It’s exactly how other Massachusetts court proceedings were opened up to TV cameras and the use of other electronic devices by the news media.
But right now that task force is moving at a glacial pace — fairly begging for lawmakers to set things right.
This state’s judiciary has often been a trailblazer in making court proceedings more accessible. The SJC’s own oral arguments are live-streamed, for example. Only the clerk magistrate hearings remain a throwback to a bygone era. That needs to change. If the court is incapable of doing so, the Legislature surely can get the job done.