Massachusetts’ “secret courts” will remain secret for the foreseeable future. So much for transparency in our justice system.
The show cause hearings — preliminary hearings held by clerk magistrates, who are not even necessarily lawyers — will remain largely behind closed doors in the wake of the latest report from a trial court working group. The report was released, not surprisingly, on the same day as the Mueller report. A cynic might conclude that the members of the committee — all current or former judges, clerk magistrates, or other court personnel — wanted to deliver their homage to the status quo on a day when it probably would be buried beneath an avalanche of breaking news.
The widespread use of these closed-door hearings was exposed in a recent Globe Spotlight report that found inconsistencies in how the policy of private hearings was implemented from one courthouse to another and a range of abuses, especially when it came to cases involving public officials.
But the working group, headed by retired District Court Judge Paul LoConto and Boston Municipal Court Judge Kenneth Fiandaca, recommended only that “the magistrate should consider opening the hearing to the public when the accused or complainant is a public official or public employee. However, the fact that the accused or complainant is a public official or public employee should not, by itself, be a basis to make a hearing or the records available to the public.”
And it added, “When determining whether the accusations are of legitimate public concern and the accused is a public official or employee, the magistrate should consider whether the accused’s conduct is relevant to the conduct of his or her office, misuse of authority, or are allegations of official wrongdoing.”
By that standard, a bothersome DUI or an assault on a spouse or girlfriend probably wouldn’t come close.
One of the few sensible recommendations: “The magistrate should consider whether there has been prior publication of the name of the accused or the conduct for which the accused has been charged.” This calls to mind the case of Kevin Spacey. The actor’s show cause hearing on sexual assault charges on Nantucket was duly recorded, and that recording made public.
As for recording those secret hearings on a routine basis — in the event there is a question about their content, propriety, or outcome — well, that apparently will hinge on the outcome of a suit brought by the Globe, to be heard by the Supreme Judicial Court next month. The report did note that show cause hearings held by a judge are “required to be electronically recorded,” but not hearings held by clerk magistrates.
The report also revealed that only about one-third of the 62 District Court divisions routinely record show cause hearings, and that doesn’t include Boston Municipal Court.
The working group found absolutely no need to change policy when it comes to clerk magistrates — who, remember, are not judges — holding hearings in felony cases.
The only good news — however slim — was that the group punted on a full review of standards for show cause hearings, suggesting “a new cross-departmental committee be formed.” A committee that isn’t already wedded to the status quo might be a good place to start.
Just because a system has operated for decades under the premise that such closed-door hearings are “for the protection and benefit of the accused” is no reason it must continue to do so. The system continues to cry out for more transparency, for greater regard for the public interest, and for the rights of victims.
Bills filed in the House and Senate this session would require such hearings generally be open, unless there’s a good reason to close them, and would mandate they be recorded. That’s certainly an option, given the unwillingness of the judicial branch to reform itself.
This latest report is further evidence of the judiciary’s reluctance to change. But change that would light this particularly dark corner of the judicial system remains essential.