We are open during COVID-19 and available to speak about your case by video conference, over the phone or in person.

Boston Globe lawsuit attempts to make Massachusetts Clerk Magistrate hearings public record

The Massachusetts Supreme Judicial Court will be asked to decide whether clerk magistrate hearings where the clerk finds probable cause but declines to issue the complaint should be open to the public.  As a criminal defense lawyer that has handled many clerk magistrate hearings, clerks do sometimes find probable cause but do not issue the complaint and essentially keep the case open at the clerk level.  This typically happens in very minor cases, like leaving the scene of property damage or negligent operation of a motor vehicle.  In most cases, the person has no record so the clerk’s resolution of the case approximates what would have happened in court. In all most all of these situations, the police department is in agreement with the resolution of the case in this manner.  The clerk magistrate hearing helps the court reduce the backlog of cases in the court and allows for a practical resolution that does not result in the defendant receiving a criminal record for a minor offense.


Who are the Judicial Clerk-Magistrates?

Judicial Clerk-Magistrates have their authority under statute G.L. c. 218, § 35A, case law, and standards set by the Massachusetts Judiciary.  They act as a filter between the police and the prosecutor and were intended as a way to weed out cases not likely to result in a conviction or cases that were relatively minor in nature where a resolution could be better sought outside the court system.  Currently, cases declined for prosecution are sealed and later destroyed.

When a person is arrested, a clerk magistrate must find probable cause to issue the complaint.  In most cases, the clerk will find that the police report supports probable cause. A clerk magistrate hearing can happen if a private person makes a complaint or if a person is not placed under arrest for a misdemeanor offense.   If a clerk declines to issue a complaint, prosecutors have the ability to petition the court to overrule the clerk-magistrate but rarely do.

Boston Globe’s initial investigation uncovered that between 2016 and 2017 approximately 62,000 criminal complaints were dismissed by clerk-magistrates and of that number approximately 18,000 were determined to have enough probable cause to proceed with prosecution.  There is a wide disparity between how clerk-magistrates handle cases from district to district.  By way of example, Chelsea District Court clerks approved just 18.5 percent of requests for criminal charges, while their peers in East Brookfield Court approved 89.3 percent.

What is the Boston Globe Asking for?

The Boston Globe is focusing on cases where the clerk-magistrate acknowledged that there was probable cause to proceed with prosecution but still declined to sign the complaint.  The Clerk-Magistrates are supposed to use the following when determining whether to proceed: “reasonably trustworthy information sufficient to warrant a prudent person in believing that a crime has been committed and that the accused is the perpetrator.”.

Currently cases declined for prosecution are not public record, and unless specifically set aside are destroyed after a year.  This means that there is very little historic data on what kinds of cases are declined for prosecution.  The lawsuit asks:

  1. What percentage of cases in which a finding of probable cause was made before the application was denied represented a voluntary resolution of the matter? In what percentage of cases did the complainants object to the outcome?
  2. In what types of cases are judicial officers most likely to make a finding of probable cause before denying an application?
  3. Is the practice of making a finding of probable cause before denying an application more prevalent in some District Courts than others and, if so, why?
  4. Is there a demonstrable benefit to the practice of making a finding of probable cause before denying an application?
  5. Does a comparison of cases in which (i) a finding of probable cause results in the issuance of a complaint with (ii) cases in which a finding of probable cause preceded the denial of an application indicate any disparate treatment of complainants or the accused based on race, gender, national origin, or citizenship?
  6. Are judicial officers more likely to deny applications for criminal complaints in cases where a probable cause finding is made when the accused is a public official or has hired an attorney?

Why this Case is Important

The Boston Globe is arguing that because a clerk magistrate hearing is a court file that it has a First Amendment right to access any public record of potential criminal activity.

I would expect that the Court will find that there is not a First Amendment right to the clerk magistrate file.  If a criminal complaint is not issued, it is not a public record any more than a police investigation which does not result in criminal charges would be open to the public.  While the records are not open to the public, this is not a secret proceeding with no oversight.  The prosecution is represented by a police officer at every clerk magistrate hearing.  If a particular magistrate does not issue a complaint that the officer thinks was warranted, there is an appeal process to the court.  The fact that appeals are rarely taken has more to do with the fact that the police departments have not objected to how the clerks handle the cases and are often in agreement; further, these cases are very minor in nature.  Most of the cases that the clerk finds probable cause and does not issue the complaint, would likely be dismissed on court costs or some similar resolution in court.

To read the filing in the Boston Globe Lawsuit click here on the Massachusetts Supreme Judicial website link with the case docket.

To read about a related case Attorney DelSignore wrote about the Boston Globe lawsuit to obtain a booking photograph and police report in a criminal case that was no longer open to the public.


Contact Information