Rare is the courtroom in America that doesn’t invite members of the public to come watch its proceedings. It’s true for traffic court, the most banal bankruptcy hearings, legal disputes between businesses, trials involving gruesome crimes, and of course the appearances of celebrities charged in high-profile cases — provided, of course, that you can find a seat in the courtroom. Even the highest courts in our state and country allow any member of the public to come to hear the arguments before them, and listen as justices hand down their opinions.
There are exceptions, of course, such as juvenile courts or grand juries or hearings selectively closed by judges for specific reasons. But those are the exception. Our court system is built atop a standard of openness that lends it credibility. People trust the court system, in large part, because it's approachable and transparent. They can hear evidence, listen to arguments and see what happens for themselves.
In Massachusetts, there’s a special layer of the judicial system that is largely excepted from this standard of openness — the ground-level hearings that take place before clerk magistrates, most often behind closed doors, out of public view. These venues often decide whether someone will face criminal charges. Even after the fact, someone off the street probably will find it difficult, if not impossible, to learn what transpired because proceedings may be unrecorded, or records kept under seal.
This system of secret hearings is being challenged by a group of lawmakers, supported by the newspaper publishers of the state. Bills filed in the state House and Senate call for a standard of openness for these proceedings, similar to the one that applies throughout the rest of our court system. The legislation also calls for more reliable record keeping of the proceedings.
Lawmakers should act swiftly to consider and approve these bills, pulling an important aspect of the state’s judicial system out of the shadows and into the light.
“We depend on the courts and our judicial system to be fair, efficient and transparent in the administration of justice,” said Senate Minority Leader Bruce Tarr, R-Gloucester, a co-sponsor of the bill. Co-sponsors in the House include Rep. Ann Margaret Ferrante, D-Gloucester. Tarr noted that hearings may still be closed, if necessary. And, to be sure, state law already requires that records in cases not leading to criminal charges not follow a person as part of their criminal history.
But, as things now stand, this system of closed clerk magistrate hearings “goes against everything we in a democratic society think of in terms of access to the courts,” Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, told Statehouse reporter Christian Wade. “Most court proceedings take place in public, and even when they’re closed to the public, as in grand jury proceedings, there’s at least a transcript kept.”
Much of the attention focused on these hearings is due to a sweeping report by The Boston Globe that found many instances of criminal charges considered in these venues but not pursued, even in cases where there was enough evidence. The Globe noted examples of certain people — police and elected officials, for example — who apparently got special treatment since complaints against them were dismissed. The newspaper also found more than 10 percent of cases brought before clerks in a six-month period dealt with potentially serious, felony charges.
All of which are good reasons to open these hearings, or at least to make records available to the public after the fact. To continue shielding these hearings from public view — particularly in cases involving elected officials, law enforcement or accusations against the powerful and rich — is to invite criticism and questions about the credibility of our legal system. For the good of all of us who depend upon that legal system for fair and impartial justice, these hearings should be open to the public.