Clerk magistrate's hearing normally closed to public

The article below appears in today's Cape Cod Times. As I have stated previously it should be noted that in spite of the public records laws afforded us by the first ammendment Magistrate Hearings are closed to the public in the State of Massachusetts, the only state in the U.S. where this happens. The results of these closed hearings are only known if the magistrate decides to file charges, and then only through court records.

Clerk magistrate's hearing normally closed to public

By Hilary Russ Cape Cod Times Staff Writer
BARNSTABLE - Despite a reporter's request to attend a hearing in a high-profile case, the proceeding went ahead behind closed doors yesterday in the criminal case against Christopher Parker, the man accused of causing a three-car accident that killed a Forestdale woman last month.

Several days after the crash that killed 63-year-old Diane Carhart, Parker was cited for vehicular homicide. Yesterday's hearing was supposed to lay out the facts of the case before Barnstable District Court Clerk Magistrate Robert Powers, who will decide whether the charge can go forward to trial proceedings.

The ''show-cause” or ''clerk-magistrate's” hearing, which is held in cases in which a defendant is summonsed or cited with a crime but not arrested, is normally not open to the public. So yesterday's decision to hold Parker's hearing behind closed doors hardly came as a shock to Cape Cod Times editor Paul Pronovost.

''We're disappointed that the clerk magistrate denied our access to these hearings, but we're not surprised,” he said.

State judicial guidelines suggest such proceedings should be ''presumptively” closed to the public, not restricted in all cases, according to District Court Standards of Judicial Practice, or so-called Complaint Standards, which were cited in a decision last week by the Supreme Judicial Court.

In the SJC case, The Eagle-Tribune sought access to a clerk magistrate's hearing after an underage woman was stabbed at a Lawrence nightclub. She had allegedly been served alcohol at the club, and the newspaper tried to get into the hearing about criminal charges against the nightclub's corporate owner.

Writing for the SJC, Associate Justice Judith Cowin said The Eagle-Tribune had no First Amendment right of public access to the proceeding. She likened such hearings to grand jury proceedings, which precede the filing of criminal charges, are more informal than other types of court proceedings, and have not traditionally been open to the public.

But Cowin did hint that there could be other grounds for admittance.

''There may be circumstances in which an open hearing is appropriate,” she wrote.

Citing case law, Cowin wrote ''transparency that open proceedings afford may be especially important if a well-publicized show cause hearing results in a decision not to bring criminal charges. ... In such cases, the public may question whether justice has been done behind the closed doors of the hearing room.”

By emphasizing language in the Complaint Standards, ''the SJC has given the media some ammunition going forward in trying to gain access to these hearings,” said Kimberley Keyes, an attorney at Prince, Lobel, Glovsky & Tye in Boston. The firm provides legal counsel for the New England Press Association.

Pronovost said the Times does not intend to appeal Powers' decision to a single justice of the SJC.

Susan Linhares, Carhart's daughter, said she finds the process of clerk magistrate hearings frustrating.

''It seems as though they're trying to be secretive by holding them behind closed doors,” she said. ''I'm sure that's not what they're intending, but that's the appearance.”

Staff writer George Brennan contributed to this report. Hilary Russ can be reached at hruss@capecodonline.com.

(Published: April 5, 2007)