Massachusetts has stacks of laws and court rulings that, on paper, ensure transparency in government. On Monday morning, it got yet another one: The Supreme Judicial Court, ruling in a case brought by the Globe, told the Trial Court to overhaul and open up the way it handles “show cause” hearings, a preliminary step in the criminal justice system that has long been a bastion of secrecy. The big question now is whether the Trial Court obeys not just the words of the decision but, more critically, the spirit. It’s so difficult to get public records in Massachusetts — even when citizens seemingly have ironclad rights to them — that holding the applause for now seems wise.
The case involved the unique system Massachusetts uses to sort through what are typically low-level criminal cases. When someone in the Commonwealth is accused of a minor crime — a fistfight between parents at a youth hockey game was the court’s favorite example — step one is often a hearing before a clerk magistrate. Clerks sometimes also hear more serious crimes, including certain felonies.
The clerk, a gubernatorial appointee, decides whether there’s probable cause that a crime was committed and, if so, whether to proceed with criminal charges. Those hearings happen behind closed doors, and sometimes with minimal record keeping. Sometimes they’re tape-recorded — and sometimes not. Some clerks have law degrees — and some don’t. In high-profile cases, clerks might open up the proceedings to the press and public, but it’s at their discretion.
The system grants these clerks a great deal of power, with very little transparency. In about 14 percent of the reported 126,596 show cause hearings in 2016 and 2017, clerks decided there was probable cause, but denied a criminal complaint anyway. The Globe found giant disparities among different courthouses, leading to questions about whether all citizens get the same treatment. There also have been disparate racial outcomes: In Brookline District Court, for example, clerks refused to issue charges against 80 percent of white defendants but just 45 percent of minorities. And the ability of public officials in legal jams to skirt charges at the show cause stage just amplifies concerns about the system.
The Globe wanted a particular subset of show cause hearings records made public: complaints for which clerks found probable cause but did not issue a criminal complaint. Access to those records would enable the public to see just who benefits from leniency at show cause hearings, and why.
The SJC rejected that request, but at least had a defensible reason. The court pointed out that a finding of probable cause by a clerk-magistrate, if it’s not followed by a trial, leaves the defendant with no chance to disprove the charge. If the names of such individuals automatically became public, that data would undoubtedly find its way into background-check databases, where it could be used by landlords or employers, who might not know (or care) that the defendant never had the chance to clear his or her name.
But otherwise, the ruling was a clear call for transparency. First, the court exercised its supervisory power over lower courts to order that clerks audio-record all their show cause hearings. It also ordered the Trial Court to develop “uniform record-making and record-keeping policies and procedures for the collection of information regarding show cause hearings, including information relevant to potential concerns about favoritism and disparity of outcomes.” It suggested that the records should include such data as the alleged offense, dates of the hearing, the race and gender of the accused and complainant, and the ultimate disposition of the case.
The court also declared that while records of individual cases, including the audio recordings, aren’t presumptively public, there are “circumstances in which the interests of justice would require the records of particular show cause hearings to be made publicly available on request.” And it says that ultimately judges, not clerks, should make that call.
Now the courts need to turn those words into reality. In the ruling, authored by Chief Justice Ralph Gants, the SJC said it would “leave it to the Trial Court” to hammer out a way to collect data that can be “compiled for dissemination upon request.” Clerks, and ultimately judges, will also decide how broadly to interpret the court’s call to release records when the public interest demands it.
The Globe didn’t get everything it wanted Monday, but make no mistake: If all show cause hearings are recorded, data is published about the hearings, and records are available when there’s a legitimate reason to release them, the Commonwealth’s peculiar show cause system will look a lot better than it does today.