Saturday, May 18, 2019

Boston Globe presses high court for access to secret criminal hearings

In fall 2018, the Spotlight team at The Boston Globethat Spotlight team—published a powerful exposé on "secret courts" (limited free access) in Massachusetts criminal justice.  Now a related case, argued May 7, is pending before the Commonwealth's Supreme Judicial Court.

Julian Assange supporters' sign in front of Ecuador embassy, London, Aug.
22, 2012 (by wl dreamer, CC BY-SA 3.0).
Secret courts are the zombie of First Amendment access in the judiciary. We kill them in constitutional litigation, think they're dead, and suddenly your state courts have been infected and overrun by a whole new horde.  More often than not, new secret court systems blossom to protect the rich and powerful—infamously such as one-time GE CEO Jack Welch whilst in divorce court—from the public scrutiny that attaches to the rest of us dregs, when anyone cares to look. That correlation makes secret courts' resilience a peculiarly American counterweight to our tradition of public justice in open courtrooms.

Yet I put "secret courts" in quotation marks, because it's not clear exactly what are these secret proceedings exposed by the Spotlight team.  They're called "show cause hearings" in Massachusetts law, but even the term "hearing" seems generous.  Under state law, in the absence of an arrest, a criminally accused is entitled to a "hearing" before the court clerk to determine whether charges should issue.  That means the clerk is second-guessing police before the case actually reaches court.

This happens tens of thousands of times per year, the Globe reported.  These "hearings" are not docketed and may leave no paper trail, so if charges are not filed, there is no official record left behind.  The statute that authorizes these hearings pertains principally to misdemeanors, but may be and is used for felony charges, too, in about one in eight hearings, the Globe reported.  The statute itself does not require secrecy, but that's how the process has shaken out.  The Supreme Judicial Court approved secrecy in these hearings, likening them in a 2007 decision to historically secret grand jury proceedings.  But these show cause hearings much more resemble the California preliminary criminal hearings that the U.S. Supreme Court held in 1986 must be open presumptively to the public under the First Amendment.

While the ostensible purpose of this process is to protect the reputation of accused persons while weeding out frivolous claims, it seems many clerks have turned these hearings into an ADR process.  Keeping the accused's name off the records is a bargaining chip to leverage apologies, restitution, or an informal kind of probation.  Outcomes in this vein can be positive for victim and accused; there's no disputing that.  But Spotlight also documented victims of crime and violence who felt their experiences were devalued in secret leniency.  No-charge results have proven problematic especially when emboldened accused persons have gone on to commit violent offenses.

And it's worse than that.  Because as tends to happen in secret justice, persons of privilege—wealth, political clout, social connections, mere representation by a lawyer, which is not required before charges, and maybe mere whiteness, based on disparate-impact statistics, according to Globe research—has a lot to do with what charges get weeded out without a record being made.  Moreover, the Globe reported:

The state’s 68 clerk magistrates at District and Boston Municipal courts operate with enormous discretion to halt criminal proceedings even though many have slender qualifications: About 40 percent of clerks and their assistants ... lack law degrees, one clerk magistrate did not go to college at all, and another has only an associate’s degree.

Often to the frustration of police, some clerks reject charges in big numbers.  "In 2016 and 2017, nearly 82 percent of cases never made it out of a secret hearing in Chelsea," the Globe reported.

Bills pending in the legislature would require a presumption of openness in these proceedings.  But the ACLU of Massachusetts, Greater Boston Legal Services, and the Harvard Legal Aid Bureau all come down on the side of privacy for accused persons.  This is an old story; the ACLU has been torn famously over access and privacy.  I don't mean to be access-absolutist about this, either.  In my view, a big part of the problem stems from our society's overuse of the criminal justice system (read: drug crime) paired with excessive, punitive consequences for criminal-justice involvement (cf. Ban the Box).

1780 Massachusetts Constitution
In the case now pending before the Supreme Judicial Court, the Globe seeks access to records of show-cause hearings in which no charges issued.  The Globe reasons that these court hearings cannot be erased utterly from the public sphere.  That logic is backed up by the Supreme Court's 1986 treatment of California preliminaries, in which media sought records after the fact of closed hearings, as well as clear circuit precedent in the intervening years condemning secret dockets as antithetical to constitutional access to information.  The Commonwealth argued on behalf of trial courts to uphold the grand-jury analogy, reasoning that properly closed hearings yield properly closed records.

I would like to see the SJC take into account that the Massachusetts Declaration of Rights is more expansive than the First Amendment.  Before the First Amendment was even a thing, the 1780 Massachusetts Constitution (my italics) recognized:

Art. XVIII. A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty and to maintain a free government. The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives; and they have a right to require of their lawgivers and magistrates an exact and constant observation of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.

The case is Boston Globe Media Partners LLC v. Chief Justice of the Trial Court, No. SJC-12681.  Watch the oral argument online at Suffolk Law.

Monday, May 13, 2019

UMass Law grads honor service tradition, will maintain top-3 Mass. bar pass rate with Harvard, BU

Photos and tweets from today's Commencement at UMass Law.

Photo of stage by UMassD_Alumni. Massachusetts Supreme Judicial Court Associate Justice Elspeth Cypher (read more), honorary degree recipient, at right, first row, second from left.  I'm three rows behind her.
Professor and former Dean Phil Cleary (who can count Mass. tort law among his many talents), respected faculty senior, hoods the youngest member of the class.  Thurgood Marshall-award-winning dad Jesse Purvis looks on.  Photo by UMassLaw.
My tweets in time sequence:

Now it's off to a faculty committee meeting. The busy work is never done! 🐝

Sunday, May 12, 2019

'Ink' splashes journalism's muck on public stage

Bertie Carvel and Jonny Lee Miller
Saturday I saw Ink, by British playwright James Graham, at the Manhattan Theatre Club, Samuel J. Friedman Theatre in New York.  I wanted to see Ink primarily to fan-boy Jonny Lee Miller.  I’ve idolized him since he appeared alongside Ewan McGregor in the brilliant 1996 Danny Boyle film adaptation of Ian Welsh’s Trainspotting.  I fell in love with him all over again as the reimagined Sherlock Holmes of U.S. CBS’s Elementary, the longest-ever screen-time run of an actor in the role and complement to Lucy Liu’s equally landmark portrayal of Watson.

As newspaper editor Larry Lamb, Miller live was all that I dreamed.  His jaunty spirit and dark-edge demeanor gave life to the tidal forces of moral conflict that tore Lamb apart as he labored under Australian upstart Rupert Murdoch—played by Bertie Carvel, who has owned the role to deserved acclaim since Ink’s debut at the London Almeida and then the West End—to reinvent news in the British tabloid Sun, circa 1970.

I don’t want to give away too much of the play’s awestriking climaxes, so I’ll only mention that one moment comprises a thundering explosion of physicality by Miller as Lamb, as he literally pounds his newspaper vision into reality over union workers’ refusal to roll the presses.  Miller seemed to be losing his voice by the matinee’s end, and my wife and I wondered that he could pull off this exhausting feat a second time that day, much less eight times per week.  Ink opened on Broadway in April and was just extended to July 7.

Playwright James Graham
speaks at his alma mater
University of Hull in 2018.
(By Robin S. Taylor
CC BY-SA 4.0.)
To my giddy delight, Ink delivered so much more than a stellar cast.  Mansfield-born James Graham is an accomplished writer of stage, TV, and film, and he’s evidenced an award-winning capacity to grapple with social issues through context.  (His film adaptation of Mikey Walsh’s Romany-expose memoir Gypsy Boy is in pre-production.)  Graham’s socially provocative Privacy in 2014 was informed by the Edward Snowden affair, and Daniel Radcliffe joined the cast for its New York debut in 2016.  With Privacy, though, lukewarm reviews suggested that Graham modestly missed the mark, giving audiences angst, but not much that was new.  He might have bitten off more than he could chew by trying to tackle a subject of such wide-ranging complexity.

If Privacy was Graham’s faltering early exploration of the social landscape, Ink is his finished dissertation.  I knew Ink would be about the birth of modern tabloid journalism—the less modern iteration being the Hearst-Pulitzer yellow journalism of the 1890s, another turning point in the history of news, evidencing my journalism professors’ admonition that nothing ever happens for the first time.  I did not understand before I went that Ink is calculated as a commentary on our present-day problem of “fake news,” or, otherwise packaged, the consumer-driven, 24-hour news cycle that undoubtedly represents another centennial shift in the enterprise of journalism and signifies to many a circular cause and symptom of moral decay in human civilization.

Set principally in 1969, Graham’s play never mentions “fake news” in modern terms.  But it does talk about populism, and therein lies Graham’s clever contextualization.  He locates Murdoch’s revolutionary arrival on the global media scene relative implicitly to the Fox Corporation of 2019, five decades hence, and at the same time relative explicitly to the spilling of populism onto the world stage in 1939, three decades earlier.

Jonny Lee Miller and Lucy Liu talk Elementary at San Diego Comic-Con in
2012.  (By Genevieve CC BY 2.0.)
As the cast discussed on stage in a talk after the show on May 11, an insightful feature of Graham’s Murdoch and Lamb arises in their portrayal as protagonists.  Part of you roots for them to succeed in overturning the staid paternalism of post-World War II journalism.  Fleet Street had become entangled with elitism, arguably peddling news as nothing more meaningful than a new opiate for the masses.  Media had fallen out of touch with the everyday plight of the working classes that post-war chroniclers had purported to protect with anti-establishment bulwarks.  Sound familiar?

Lamb’s fall reminds us that the shortest path from Cronkite-esque public servant to Alex-Jones-town social menace is more slippery slope than cliff-edge drop.  Murdoch is the devil to Lamb’s Doctor Faustus, and one must remember that the devil was not really the villain of that story.  Protagonist and antagonist at once, Faustus was everyman.

Graham artfully traced the unraveling of countless threads in social policy in Ink’s Sorkin-paced script.  Almost in the play’s background, the aforementioned union press workers evolve from butt of ridicule to moral compass as Lamb loses his grip.  Characters’ commentary collateral to the business of newspapering portends the looming behemoth of television, à la Marshall McLuhan.  Lamb’s dogged insistence that absolute freedom of information is the best way to save the life of kidnapped Muriel McKay evokes pondering of Julian Assange’s access-to-information fundamentalism, such as birthed Wikileaks.

Front and center, the advent of the Murdochian media empire, portrayed in Ink, posits a simple question that has haunted ethicists since the construction of the Fourth Estate:  Is the role of journalism in a democracy to give the public what it needs or what it wants?

 Elementary s7 premieres May 23 on CBS.

Thursday, May 9, 2019

Let's open up those tax returns. All of them.

Had Donald Trump never entered politics, never become President, his billion-dollar-plus tax-return losses reported by The New York Times would still have happened.  And no one is so naïve as to think that Trump is alone in exploiting the tax system, if not mocking it.  The alternative minimum tax, in place long before the Trump-Times study decade, is supposed to curtail claimed-loss shenanigans by the 1%ers.  But they don’t pay it and hardly ever have.  Working people pay it.  (I paid it at least once.)  Sure, we should go after tax fraud.  But I’d like to see our congressional leaders talking about unfairness in the tax system as it exists in law.  That’s Congress’s wheelhouse, after all.

Let me issue the perennial reminder that personal income taxes are fully transparent, public, and online—for everyone—in Norway, and they always have been public, if only more recently online.  Yet the sun still shines there—most places, most of the year—and people get on just fine.  It turns out that knowing what other people earn in income does not undermine or destroy society.  In fact, transparency might generate overwhelming positive consequences, such as a better informed therefore better functioning free market for labor, and, lo and behold, public confidence in government and tax equity.

America has a weird ethic about salary secrecy.  My pay is online; you can look it up at Mass Live.  Look for my wife there, too, so you know what our household income is.  And then explain to me why we owed thousands of dollars in taxes this year even after we reduced our 2018 W-4 deductions to zero and supposedly got a rate cut.  (Spoiler alert: Pretty sure the IRS over-cut withholding to create short-term economic stimulus at later public expense.)  I’d tell you what we make right here, but I learned the hard way that people at my workplace hate when I talk openly about salary.  There’s some social taboo, I guess, that I never learned.  Anyway, 🤙.

Here’s my modest proposal.  We don’t have to be Norway.  But how about, when you’re elected to federal office, executive or legislative, your tax returns, back some number of years and going forward some number of years, are entered into a public database.  We see politicians herald the release of their returns; that’s the norm we hold up as desirable.  So let’s formalize it.  Simple and nonpartisan.  These are people holding public jobs, paid from the public fisc.  So we know their earned incomes.  What’s left to hide?

Maybe if we saw everyone’s taxes in Congress, as well as the President and Veep, we’d finally get meaningful and bipartisan tax reform.