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    Globe sues for records from thousands of closed-door hearings in state’s ‘secret courts’

    A police officer escorted people in and out of a courtroom at the Edward Brooke Courthouse in July.
    Suzanne Kreiter/Globe Staff
    A police officer escorted people in and out of a courtroom at the Edward Brooke Courthouse in July.

    The Boston Globe is asking the state’s highest court to give the public access to the files from thousands of private hearings where clerks dismissed cases even after finding there was enough evidence to issue criminal charges.

    A Spotlight report last month, “Inside our secret courts,” discovered that Massachusetts clerk magistrates, meeting behind closed doors in district and municipal courts, declined to issue criminal charges in nearly 62,000 cases in 2016 and 2017. That includes more than 18,000 cases in which clerks concluded there was probable cause to believe the suspect committed the offense.

    It’s not clear why the clerks refused to issue charges when there was sufficient evidence to do so because the hearings and files are generally closed to the public.

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    But the Globe argued in a lawsuit filed Thursday with the Supreme Judicial Court that the public has a right to know under common law, the state Constitution, and the US Constitution. The Spotlight Team found Massachusetts is the only state in the country where clerks routinely hold secret hearings to decide whether to charge adults with crimes.

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    “The Spotlight Team’s reporting unearthed troubling facts that raise important questions about the administration of justice in the Commonwealth,” said Dan Krockmalnic, the Globe’s general counsel. “By filing this legal action, we intend to establish the public’s right to get answers.”

    A spokeswoman for the Massachusetts court system declined to comment on the lawsuit. But Trial Court Chief Justice Paula Carey has previously said that “the Globe article has raised issues that are worthy of fair consideration by the court, as well as the clerks and the Legislature.”

    When people are arrested in Massachusetts, clerks almost always sign off on police and prosecutors’ requests for charges. But, many times, police don’t arrest the suspect, either because they didn’t witness the alleged offense or some other reason. For these people, clerks often first hold private hearings to decide if there’s enough evidence for the charges to move forward.

    Yet, even when police present significant evidence to back up the allegations, the Globe found clerks routinely dismiss cases, frustrating many victims.

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    The Spotlight Team interviewed one woman who said she moved out of Boston because she felt unsafe after an assistant clerk in Dorchester Municipal Court refused to charge a former boyfriend with assaulting her when she was pregnant. Boston Police didn’t immediately make an arrest. But they found her claims credible enough to request a felony criminal charge against the former boyfriend, and the clerk found probable cause to believe he committed the offense. Still, the clerk agreed to drop the case so long as the man stayed out of trouble for a few months.

    “It was unjust what the court did to me,” the woman, Leneeth Suazo, told the Globe. “And if they do it to me, they’re going to do it to a lot of people.”

    Court officials say the hearings are intended mainly to deal with minor cases that could be resolved without formal criminal charges.

    But court data from the second half of last year found one in eight charges considered at the hearings were felonies — which carry the possibility of prison time — including rape, attempted murder, arson, and kidnapping. Some cases reviewed by the Spotlight Team also included serious injuries or death.

    For instance, a clerk in Dedham District Court refused to issue criminal charges against a driver who ran into a high school junior in a crosswalk in Norwood, hitting her so hard that she needed surgery and months of physical therapy.

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    But, in that case, the Norfolk district attorney’s office asked a judge to overturn the clerk’s decision and charge the driver with negligent operation of a motor vehicle. A jury later found the driver was guilty beyond a reasonable doubt — a much higher legal standard than the one clerks are supposed to use to decide whether to issue charges.

    Because the hearings are shrouded in secrecy, it’s often hard to determine why clerks declined to issue charges when there was enough evidence to do so or who benefited from the decisions. The Globe asked court administrators to voluntarily open the court files earlier this year, but they refused.

    The court’s general counsel, Daniel P. Sullivan, wrote the Globe that individual clerk magistrates have the discretion to make records public when charges do not issue, but “there is no right of access.” Massachusetts is one of 17 states where the judiciary claims to be completely exempt from the state public records law (though the Legislature is considering whether to change that).

    The lawsuit pointed out that the records could help the Globe answer a number of questions, including why clerks dismissed the cases and whether the courts gave special treatment to public officials. The Globe found a number of examples where politicians, police, and court officials avoided criminal charges in clerks’ hearings over the years.

    In addition, the Globe discovered clerks differ widely in how they handle the hearings from one courthouse to another. For instance, 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. The Globe also reported that roughly 40 percent of clerks and assistants who handle the hearings lack law degrees.

    Clerks said the vast majority of hearings are held after police file applications for criminal complaints, though private citizens can ask the courts to issue charges as well. Court administrators declined to provide a breakdown.

    In a 2007 court decision, the Supreme Judicial Court upheld court guidelines that say the hearings are presumed to be private, ruling that the closed-door hearings allow clerks to “screen out baseless complaints with minimal harm to the accused’s reputation.”

    But the high court never considered the question of whether the files themselves could be withheld — particularly in cases where clerks determined there was enough evidence to believe the accused likely committed a crime.

    The statute authorizing clerk magistrate hearings says nothing about whether the hearings or files should be publicly available. But it requires clerks to destroy requests for charges after a year when the applications are denied, suggesting lawmakers may have thought the files otherwise would be publicly available.

    Both the governor and legislative leaders have said the process needs more transparency, though they have offered few details so far.

    Many criminal justice advocates and defense lawyers argue the clerks’ hearings are important to help keep first-time and minor offenders out of the criminal justice system. But many also said the courts need to make significant changes to address concerns raised in the Spotlight story, such as reducing the secrecy around the process.

    “If the secret hearings were to become public, we would have more consistency and uniformity in how complainants and other involved parties are being treated,” said Ivan Espinoza-Madrigal, executive director of the Lawyer’s Committee for Civil Rights and Economic Justice.

    The ACLU of Massachusetts said the courts also need to provide more data on the hearings and be subject to the public records law.

    “There needs to be a greater degree of transparency regarding how these hearings operate as it relates to impartiality and equity,” said Carol Rose, executive director for the ACLU of Massachusetts in a statement. Without more data, she said, “we have no idea if clerk magistrate hearings are functioning fairly.”

    Todd Wallack can be reached at twallack@globe.com. Follow him on Twitter @twallack. Nicole Dungca and Jenn Abelson of the Globe staff contributed to this report