Are Clerk Magistrate Hearings Secret Proceedings Where The Privileged Get Criminal Charges Buried?

Update: 9/10/19: The Mass SJC orders increased transparency for “show cause” hearings. Among the new requirements:

• All hearings will be recorded.
• Information about the hearings will be publically available in more cases, with anonymous data.

These are very reasonable transparency improvements. There will be a record of the hearings to make sure there isn’t undue favoritism to certain defendants that is buried by secrecy.

Update: 3/1/19: The Globe and other Massachusetts newspapers are pushing for legislative reform to Clerk magistrate hearings. Having all hearing rooms open to the public for most sessions, and having transcripts kept are reasonable ideas.

But in this time of criminal justice reform, we don’t want to lose the value these hearings provide in avoiding criminal charges for citizens. The flexibility to NOT bring charges that likely meet the standard of probable cause, but are not in the interest of justice is absolutely critical.

We shouldn’t have to rely on DAs like Suffolk County’s Rachael Rollins to not prosecute minor crimes. While this is a laudable position, this very discretion is better kept in the hands of an impartial body, not someone primarily tasked with prosecuting.

The Clerk Magistrate is exactly that, which is why the Magistrate system is absolutely critical for second chances and decarceration. The leniency should be expanding, and more people should be afforded the opportunity to avoid a charge being issued at all.

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A big new story in the Boston Globe suggests that Clerk Magistrate’s hearings are Secret courts where leniency is only offered to the privileged and connected, and serious charges can be buried if you have the right connections.

That is simply untrue, and a wild distortion of what actually happens in a Clerk Magistrate’s hearing.

Most incidents that appear before a magistrate are minor offenses with no victim harmed. These are incidents like Negligent Operation of a Motor Vehicle (usually a minor accident), Leaving The Scene of Property Damage (a minor hit and run), Shoplifting where the defendant was caught by store security, a minor assault incident like a bar fight, and other similar fairly low-grade offenses.

In most of these cases, the defendant made a mistake, but there was little to no harm to anyone. Quite a few of these cases are so trivial that law enforcement did not actually need to get involved.

Lack of Transparency Can be Abused

It should absolutely not be possible or tolerated for a clerk magistrate to use the secrecy of a hearing to cut a special deal because they know the individual or the lawyer personally. That is blatant corruption.

And fortunately, there are only a few known instances of this happening. Most Clerk Magistrates are extremely fair about being lenient to accused individuals without any personal bias.

And the so-called secrecy is a function of the unique limbo status of someone called before a hearing. At this point, there is still no crime, therefore there is no compelling right of the public to know. The clerk’s hearing is an early process to determine facts and evaluate the probable cause.

A person is not formally accused of a crime until and unless probable cause is shown demonstrated to the magistrate. Prior to the hearing, there only a citation to appear has been issued.  If cause is found, at the end of the hearing a criminal complaint is issued, and the defendant is set to be formally charged at an arraignment date. An arraignment is the typical first court date when someone has been arrested.

There are legitimate arguments about whether clerk magistrate’s hearing documents and dates should be publicly available. Courts do not share this information with the public or reporters, and most district courts do not allow outside observers into a magistrate’s courtroom, although a few do. Police reports are public information if you know they exist, but that is a fairly arbitrary barrier.

However, it is peculiar that hearing outcomes vary so widely by court, ranging from 19-90% of complaints being issued as a result of a hearing. That data should be transparent and the underlying reasons for the disparity between courts should be studied.

Access to Good Legal Representation is a Huge Advantage

It is true that having a private attorney represent you at a clerk magistrate’s hearing is a huge advantage, and will almost always get you a better outcome on average. But, this is also true at any criminal proceeding, motion hearing, plea negotiation or jury trial. If you are going to complain that people who can pay for excellent lawyers justice get better treatment in court, well ok then.

Welcome to every American criminal court at every time in history, and thanks for noticing. Equal access to justice would be a fantastic issue for us to take seriously as a nation.

Arguably, a clerk’s hearing is the best bang for the buck you can get in a private criminal lawyer. It’s usually one hearing and done. You aren’t paying for hundreds of hours of motion research or trial preparation.

But it is true that, because at a clerk’s hearing, you have still not been charged with a crime, that also means you aren’t eligible for a court-appointed lawyer. So it shouldn’t be at all surprising that those who can afford representation at the hearing are going to make better arguments, get better results, and get charges dropped more often.

If the Globe or other criminal justice reformers want to argue that we should hire more public defenders and mandate them for clerk’s hearings (or civil hearings, for that matter) that is also an excellent idea.

How Can Transparency and Fairness Be Improved?

Here are a few ideas on improving the clerk magistrate’s hearing process:

• Allow and pay for public defenders to represent clients at hearings for those who qualify, just like at an arraignment or other criminal proceedings.
• Allow all hearings to be open to the press and public, but restrict court documents only if and until a formal criminal complaint is issued.
• Restrict hearings to only misdemeanor offenses. Felony cases get before a clerk magistrate only in extremely rare cases, but they probably should be allowed at all.
• Don’t dismiss hearings that have sufficient probable cause to proceed if there is a harmed victim. If a 3rd party has been demonstrably harmed in an unresolved manner, the charge should issue. But just because a charge for Leaving the Scene of a Personal Injury is sought doesn’t mean there was real harm – that finding of fact still can be determined at the hearing. However, if that person is made whole (insurance damaged covered etc.) then that should be sufficient for a clerk to not issue a criminal complaint if circumstances warrant.

What about domestic violence cases? These were some of the most disturbing incidents from the Globe’s reporting.

These are some of the most difficult cases in criminal court, not just at clerk’s hearings, but more broadly in the entire criminal court system. No one wants abusers to be able to intimidate victims into not providing evidence against them, but it does happen. It is an incredibly difficult balance between protecting a defendant’s right against making sure victims aren’t coerced, yet making sure due process is protected.

We need more leniency, and more reform, not less

The bottom line is we should be expanding criminal justice reforms and second chances for minor offenses, not reducing them.

Clerk’s hearings are a great opportunity to keep people from getting caught up in the criminal justice system for trivial matters or minor lapses in judgment.

Lawmakers and citizens in the Commonwealth and the rest of the country are finally taking criminal justice reform and sentencing reform seriously. Let’s not make a few sensationalist outlier cases like the ones reported destroy one of the best systems for keeping people out of the system and saving court time and effort on trivial matters.