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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.

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