|Secret Courts||September 30, 2018|
|Jenn Abelson, Nicole Dungca and Todd Wallack||Boston Globe|
A policewoman and another man enter a room with their backs facing
Inside our secret courts Criminal charges often disappear without a trace. There are few rules and fewer records. In these private hearings, who you are - and who you know - may be just as important as right and wrong.
By Jenn Abelson, Nicole Dungca and Todd Wallack
September 30, 2018
Leneeth Suazo, four months pregnant, had tried to ignore her ex-boyfriend's menacing voice mails, phone calls, and text messages since he kicked her out of his apartment.
Now it was New Year's Eve and the doorbell wouldn't stop ringing at the apartment complex where Suazo had taken refuge. She knew it was Jim Phane outside, pressing every buzzer in the building.
Suddenly, there was a knock at the front door. Phane, let in by a neighbor, was standing there, begging Suazo to talk to him.
Fearful that he'd attack her as he had once before, Suazo discreetly pressed record on her cellphone. Phane threatened her, and when he noticed the phone was recording their conversation, he lunged.
"Jim, don't touch me. Don't touch my face. I don't want you to touch me . . . Stop!"
Suazo later told police that he grabbed her jaw, shoved her, and elbowed her belly before fleeing as she screamed. A judge granted a restraining order, based on her application outlining the alleged history of violence, and police sought a felony assault and battery charge against the ex-boyfriend.
But justice would elude her. The case would go into the darkest corner of the Massachusetts criminal justice system, where closed-door hearings are often held in private offices without public notice, where the outcome is up to the discretion of a single court official who may not have a law degree, and where thousands of substantiated criminal cases go to die every year.
A black and white side profile picture of Leneeth Suazo
Jessica Rinaldi/Globe Staff
Leneeth Suazo reported that her ex-boyfriend assaulted her while she was four months pregnant.
Call it our secret court. No other state in the country has anything like it.
At Phane's closed-door hearing in Dorchester early last year, assistant clerk magistrate Helen White found enough evidence to issue the criminal complaint, despite Phane's denials. "I never hit a girl in my life," he later told the Globe. But the clerk offered Phane a huge break: If he stayed out of trouble for a few months, he could avoid a public courtroom, and the criminal charge would never appear on his record, according to an attorney's contemporaneous notes.
"It's like nothing happened to me. I did what I was supposed to do as a victim of domestic violence," Suazo said. "I feel like the court gave him more power. It was unjust what the court did to me. And if they do it to me, they're going to do it to a lot of people."
Every year, tens of thousands of cases wind up in secret court sessions - formally known as "show cause hearings" - that are presided over by court clerks and usually held for suspects who haven't been arrested and don't pose a flight risk or danger to others. People are generally entitled to these hearings for misdemeanors, but police can request them for felonies as well.
The quality of justice behind the clerks' closed doors can depend on where the hearing is held, who you know, or the color of your skin, according to a Spotlight Team investigation. It's a land of arbitrary second chances, where the powerful, the privileged, and the lucky can see serious charges like reckless endangerment of a child and motor vehicle homicide quietly swept away in private hearings.
The state's 68 clerk magistrates at District and Boston Municipal courts operate with enormous discretion to halt criminal proceedings even though many have slender qualifications: About 40 percent of clerks and their assistants, including Helen White, lack law degrees, one clerk magistrate did not go to college at all, and another has only an associate's degree.
Show cause hearings were originally created to weed out baseless allegations, but, in practice, there are so few checks on the clerks' power that they regularly go far beyond that, brokering deals and, in nearly half of the cases, rejecting requests for charges.
Clerk magistrates, who are appointed by the governor, routinely refuse to issue charges even when there is significant evidence - as in the case of a judge caught on camera taking someone else's $4,000 watch off a security belt at Logan International Airport. Over the last two years, clerks have set aside nearly 62,000 cases, including more than 18,000 after a clerk concluded there was probable cause to believe that the accused committed a crime, according to court data.
The Spotlight Team uncovered cases where clerks tossed charges involving serious injuries or deaths, including one brought against a Quincy taxi driver who ran over and allegedly dragged an elderly man, killing him.
A much better known defendant, Jared Remy, also benefited from the selective leniency of the secret court system. Charges arising from his threats to kill a former girlfriend disappeared after a hearing before a clerk in Lowell District Court in 2000, 13 years before the son of the famous Red Sox broadcaster stabbed a different girlfriend to death.
Do you want to share your experience with these private hearings? Contact us with your confidential tips Send a tip
The Globe also investigated multiple cases where clerks refused to issue charges in private sessions against police and politicians, including Brockton City Councilor Michael Brady who avoided drunken driving charges in a 1999 clerk's hearing and now serves as a state senator.
The clerks' rationales for rejecting these and many other cases are rarely made public - or even reviewed internally by the courts. Clerks are not required to issue public rulings when they deny charges. But one recording obtained by the media demonstrates how clerk magistrates can use their positions to help people with the right connections.
In the 2017 recording, Hingham clerk magistrate Joseph Ligotti suggested police had cause to arrest former Hanson police chief Edward Savage and his wife after they allegedly stole more than $400 worth of clothes from Kohl's. But Ligotti told the couple that he would not issue the shoplifting charges largely because of the efforts of their lawyer, Daniel Webster, a former state representative.
"I'm doing this more for your lawyer than I'm doing it for you," Ligotti said. A courtroom with former police chief Edward Savage and his wife, Christine Savage, standing in the background and their lawyer, Daniel Webster, in the foreground. There are other people sitting in the courtroom reading some documents. Pat Greenhouse/Globe Staff Attorney Daniel Webster (right) represented former police chief, Edward Savage, and his wife, Christine (standing left) in Hingham court where they faced shoplifting charges. Their case almost disappeared in a private clerk magistrate session.
Ligotti promised to toss the charges if the couple stayed out of trouble and wrote letters of apology to the police and the department store.
"It's like nothing happened if you keep your nose clean," Ligotti told the couple, saying all the records would be sealed. "This goes away. No one can come in and hear or read about this." LISTEN: Ligotti at a clerk magistrate hearing
But after Ligotti retired in January, his successor, Andrew Quigley, learned that the couple never wrote the letters of apology and he issued criminal complaints, officially making the case records public. The couple pleaded not guilty to shoplifting at a public arraignment in April.
A clerk's ability to wipe a defendant's slate clean behind closed doors may even embolden some to commit new crimes by giving them an undeserved second chance.
Not long after an assistant clerk magistrate in New Bedford rejected shoplifting and heroin possession charges against Cesar Berroa in 2017, the 29-year-old and a friend targeted a sandwich shop in Seekonk. They threatened two employees with what appeared to be a gun and ordered a store employee to fill a bag with cash.
Berroa, whose attorneys declined to comment, eventually pleaded guilty to armed robbery and was sentenced to up to four years in prison.
There are plenty of defenders of this system, especially the clerk magistrates who see themselves as problem solvers, quietly working out private settlements that often may require the accused to apologize, make restitution, or promise to not repeat bad behavior. Court officials and clerks say those informal resolutions reduce the number of minor criminal matters that clog court dockets and help protect individuals from the lifelong consequences of having a criminal record.
"The current process works well," said Daniel J. Hogan, the clerk magistrate for the Boston Municipal Court system's central division and head of the statewide clerks association.
In anticipation of the Spotlight story, court administrators sent clerks a note a week ago praising their efforts handling criminal cases. "We are confident in your work and our system," Trial Court Chief Justice Paula Carey and Court Administrator Jonathan Williams told them.
But there are strong reasons to question these confident claims. Judges in public court sessions also have the option to show compassion in minor cases, including alternate resolutions that don't amount to convictions. And the lack of transparency and accountability in these secret court hearings raise larger questions about fairness, in part because the outcome seems to depend heavily on which court the accused appears in. In East Brookfield District Court, for example, clerks issued criminal charges in almost nine out of every 10 cases they heard. In Chelsea, on the other hand, clerks issued charges in fewer than two out of every 10 cases. Unequal justice?
Clerk magistrates and their assistants differ widely in how they handle requests to issue criminal charges. Here are approval rates for two urban courthouses: Chelsea 18.5% cases approved Worcester 81.9% cases approved
Source: Massachusetts court data for private hearings in 2016 and 2017 combined
The Globe also found evidence that white defendants may have slightly greater access to these private sessions than black and Hispanic defendants, and, once inside, have better success in defeating charges.
Clerks rejected more than 49 percent of cases against white defendants, versus roughly 44 percent of cases against minorities, according to a Globe analysis of court data from the second half of 2017.
"The clerks' hearings are like the wild, wild West," said Margo Lindauer, director of the Domestic Violence Institute at the Northeastern University School of Law which represented Suazo. "There are no rules of evidence. It's not recorded. The clerks don't have to be lawyers. And they all manage the proceedings really differently."
A black and white photo of Margo Lindauer sitting on a bench with a glass window behind her. From the window, a minivan can be seen parked on the other side of the street.
Jessica Rinaldi/Globe Staff
Margo Lindauer is director of the Domestic Violence Institute at the Northeastern University School of Law and has represented many victims in clerks' hearings.
How the system works
When police arrest a suspect, the person is typically arraigned before a judge. But when the suspect is not arrested, there's an extra step: courts often schedule a private hearing to see if there's enough evidence for criminal charges. That's what happened to Leneeth Suazo when she told police she was assaulted by her ex-boyfriend.
These hearings before a clerk magistrate are not open to the public and usually are not recorded or listed on court schedules. Most hearings involve misdemeanors, but police can also request them for felonies, such as the alleged assault on Suazo.
Sometimes, clerks find enough evidence to issue charges, but resolve the matter informally by having defendants apologize, make restitution, or promise not to repeat bad behavior. The clerk found enough evidence to charge Suazo's ex-boyfriend, but agreed to drop the matter if he avoided trouble.
When the clerk declines to issue charges, the defendant walks out with no trace of the incident on their record. Jim Phane, Suazo's ex-boyfriend, left his clerk's hearing with a clean record despite the evidence against him.
Private clerks' hearings are a cornerstone of Massachusetts justice - for every 100 criminal cases begun in municipal and district court last year, there were 46 show cause hearings scheduled, court data show. But such hearings are virtually unheard of anywhere else. Massachusetts is the only state where people can derail criminal charges in a secret hearing and prevent them from ever becoming public.
The Spotlight Team asked court officials or prosecutors in all 50 states and the answer was the same everywhere: With rare exceptions, all adult criminal proceedings are conducted in public, including initial hearings where court officials decide whether to bring charges in the first place.
In fact, the secret clerk magistrate hearings are the exception even within Massachusetts' justice system, which generally meets in open sessions that are recorded and overseen by judges. Even if a judge dismisses the charges, they remain part of the official record so that the case will be available for review by judges and probation officers if a defendant is charged again. And that's not true when cases are tossed in clerks' hearings.
The clerks' hearings are like the wild, wild West.
Margo Lindauer, director of the Domestic Violence Institute at the Northeastern University School of Law
So wherever did this strange closed system come from?
Private clerks' hearings are not some vestige of Colonial government like the Governor's Council, Massachusetts' ancient and unorthodox system for approving judges. There's evidence clerks' hearings date back at least to the late 1800s, but it wasn't until 1943 that the practice became institutionalized. That's when the Massachusetts Legislature passed a law giving people the right to a hearing to challenge any potential charges in district court cases where they had not been arrested.
The hearings were intended under the law to answer a basic question: Is there enough evidence for criminal charges to be filed? It's a relatively low standard for police to meet; some clerks told the Globe that they often consider the information on a police report as sufficient for charges to be issued.
Nothing in the 1943 law requires the hearings to be kept secret, but in 1975, the district courts issued guidelines saying the proceedings are presumed to be private because "citizens should be spared personal embarrassment whenever possible." Since then, with rare exceptions, clerk magistrates statewide have held their hearings in private, leaving scant written records for other court officials or the public to review. The hearings aren't even listed in public indexes of criminal cases.
Clerks' decisions almost always go unchallenged. In fewer than one case in 1,000, police or prosecutors ask a judge to overturn the decision, making the case public if they succeed, according to a Spotlight Team analysis. That's what happened in the case of 16-year-old Lorre Mitchell who was run over in a crosswalk on the way to the school bus stop in Norwood in 2014.
A black and white photo of a street crosswalk in Norwood with 16-year-old Lorre Mitchell seen standing on the other side of the road.
Erin Clark for The Boston Globe
Lorre Mitchell stood at the crosswalk in Norwood where a car smashed into her as she walked to the school bus stop. Mitchell is still frustrated with how a clerk magistrate handled her case.
The driver, Nada Gereige, admitted to police that she tried to swerve but smashed into Mitchell, catapulting the teenager onto the grassy sidewalk where police found her surrounded by debris from Gereige's Toyota. Mitchell needed surgery for her broken nose, an operation for torn cartilage in her knee, and months of physical therapy during her junior year of high school.
Police cited Gereige for negligent operation of a motor vehicle, a misdemeanor. But a clerk, Robert Moscow, refused to issue the charge, saying he believed the crash was an accident, according to court records in Dedham District Court.
The Norfolk district attorney's office disagreed and asked a judge to overturn Moscow's decision and issue the criminal charge. The driver eventually stood trial in front of a jury, which unanimously found her guilty. Gereige, who declined to be interviewed by the Globe, lost her license for several months.
"I still don't believe I made a wrong decision, but if a judge and jury say I'm wrong, I guess I'm wrong," said Moscow, a former clerk who said he still oversees show cause hearings.
Mitchell, who has scars across her face from the incident, said it's scary to think that her case almost disappeared in this secret session.
"It makes me have no faith. People can go ahead and do awful crimes to others and not have any consequences," Mitchell said. "There are people who are cheating the system."
Given the potential for injustice, why are challenges to clerk rulings so rare?
Want to support more Spotlight Team investigations like this one? Subscribe now
Some police chiefs say there is a strong disincentive against taking on the clerks. Clerk magistrates and their staff must typically approve every application for criminal charges, as well as oversee case records and conduct small claims and traffic hearings. Effective law enforcement, in other words, can depend on the attitude clerks bring to their work.
"If you irritate the clerk, they can make your life miserable," said Hampden Police Chief Jeff Farnsworth, a vice president of the Massachusetts Chiefs of Police Association. Behind closed doors
This secret system sees it all: garden-variety traffic violations, neighborly disputes that get out of hand, but also far more serious charges such as carjacking and arson. In one case, taxi driver Steven P. McNally backed up over and killed a customer he had just dropped off, but was able to leave a clerk's hearing in Quincy District Court in 2016 without charges. (A judge later reversed the decision and a trial is pending.)
Clerks often downplay the severity of the charges they consider: "The situations we get are mostly fights," explained Kevin G. Murphy, Chelsea District Court's clerk magistrate. "Some in a barroom, two girls having a 'catfight,' as they call it."
People can go ahead and do awful crimes to others and not have any consequences.
Lorre Mitchell, a pedestrian hit by a car
But the Spotlight Team found that clerks frequently handle felony charges, which potentially carry time in state prison. Felonies accounted for more than one in eight of the criminal charges handled at clerks' hearings in district and municipal courts, according to court data from the second half of 2017. These included kidnapping, rape, armed robbery, drug trafficking, and attempted murder.
Police sometimes ask clerks to issue charges without a hearing in misdemeanor cases where defendants are considered likely to commit another crime, hurt someone, or flee the state. But some savvy lawyers successfully challenge these efforts, knowing a hearing gives their clients a chance to quietly resolve the matter. Cases inside secret court
In the Massachusetts court system, clerk magistrates can make cases disappear, even when there is substantial evidence people committed a crime.
Pat Greenhouse/Globe Staff
Quincy District Court
According to a police report, Brockton city councilor Michael Brady smelled of alcohol and admitted he had been drinking before he drove his car into a telephone pole in Weymouth in 1998. But he was still able to leave a clerk magistrate's hearing without an operating under the influence charge. Two decades later, Brady, now himself the state senator from Brockton, was arrested for drunken driving in Weymouth after failing several sobriety tests. He pleaded not guilty and entered an alcohol rehabilitation facility.
Pat Greenhouse/Globe Staff
Edward & Christine Savage
Hingham District Court
Former Hanson police chief Edward Savage and his wife were caught on camera taking over $400 worth of clothes from Kohl's. At a private hearing in 2017, a Hingham clerk told the couple he would not issue charges, largely because of the efforts of their attorney, if they wrote letters of apology and stayed out of trouble. Earlier this year, a new clerk magistrate discovered the apology letters were never sent and issued charges for shoplifting. Savage and his wife pleaded not guilty in April.
Robert E. Klein for The Boston Globe
Judge Patricia Curtin
East Boston Municipal Court
Massachusetts District Court Judge Patricia Curtin was caught on camera taking a $4,000 Cartier watch from a security belt at Logan International Airport in 2014. State police said they asked the court to charge Curtin with larceny without a hearing, but the East Boston Municipal Court clerk's office scheduled one anyway. After giving Curtin a hearing, the clerk magistrate declined to issue charges. Curtin has since retired.
Pat Greenhouse/Globe Staff
New Bedford District Court
Cesar Berroa was stopped in January 2017 by a Dartmouth police officer for shoplifting, and also admitted to having heroin, according to a police report. But an assistant clerk magistrate in New Bedford District Court refused to issue those charges. Not long after, Berroa and a friend robbed a Seekonk sandwich shop, threatening two employees with what looked like a gun. Berroa was later sentenced to up to four years in prison after pleading guilty to armed robbery.
John Tlumacki/Globe Staff
Hingham District Court
Fellow employees at Bright Horizons daycare in Hingham accused Marie Millette of violently shaking and force-feeding small children in 2016. But two clerk magistrates refused to issue assault and battery charges against her after private hearings. However, the district attorney took the rare step of challenging the decision and a judge eventually decided that Millette would face criminal charges. A trial is pending, and Millette is not currently allowed to work in childcare.
Lane Turner/Globe Staff
Quincy District Court
In 2016, taxi driver Steven McNally backed up over and killed his customer, Robert Noyes, shortly after dropping him at his Quincy home. A police officer said he believed McNally did not look directly behind him while backing up, but an assistant clerk magistrate declined to issue the charge of motor vehicle homicide by negligent operation. He was charged later that year after the district attorney's office urged a judge to reverse the decision. A trial is now pending.
Remy, the son of the Red Sox broadcaster, was scheduled to be publicly arraigned on charges that he threatened to kill his former girlfriend in 2000. But Remy's lawyer persuaded a judge to divert the case to a private hearing in Lowell District Court, where the clerk magistrate himself had been accused of domestic violence. The case against Remy disappeared, and eight months later, Remy was arraigned on charges of threatening another girlfriend. Today, he's serving a life term in prison for stabbing a different girlfriend to death.
A black and white photo of Jared Remy in court
Joanne Rathe/Globe Staff
Jared Remy plead guilty in Woburn Superior Court in 2014 to killing his girlfriend. Years before, another domestic abuse charge against him disappeared in a private court session.
But defense attorneys argue that many of their clients in these private hearings are far from hardened criminals. They say hearings offer a way to mediate cases and give young, first-time offenders a second chance or keep spurious allegations from becoming public.
In Chelsea, for example, a clerk declined to issue charges stemming from an argument between two women in a checkout line at Market Basket. Because one woman had brushed the other with her shopping cart, police included a charge of assault and battery with a dangerous weapon.
Criminal defense attorney John Salsberg said he has seen countless cases that have been correctly resolved in clerks' hearings - cases that should never have gone into the regular criminal justice system. Since the 1980s, he has worked as a supervising attorney with the Harvard Defenders, a Harvard Law School organization that represents individuals at these criminal proceedings. "Just because something's a crime doesn't mean it needs to be prosecuted," Salsberg said. "And I think the clerks have enough experience to know which complaints should end up issuing and which shouldn't."
It's like nothing happened if you keep your nose clean. This goes away.
- Former Hingham clerk magistrate Joseph Ligotti to couple accused of shoplifting
Other defense lawyers praise the clerks' hearings for a different reason: They brag about their record of winning cases in the private sessions, even when the evidence is stacked against their clients.
In April, Boston attorney Stephen Neyman wrote about a client in Roxbury Municipal Court who was accused by his girlfriend of grabbing her by the neck and hair, dragging her out of his car, and throwing her on the street.
"Officers observed marks on the woman supporting her complaint," Neyman noted on his website. "Nevertheless, our office was able to convince the clerk not to issue the criminal complaint."
And some defense attorneys acknowledge that clerks can be more lenient than judges because no one from the public is watching.
"Clerks feel less pressure than a judge in certain cases," said Joseph B. Simons, a Boston criminal defense attorney. "Nobody knows about it."
A black and white photo of Joseph B. Simons.
Jonathan Wiggs/Globe Staff
Joseph B. Simons is among a number of criminal defense attorneys who advertise on websites their successes in clerks' hearings.
Simons claims he's successful at persuading clerks not to issue complaints over 90 percent of the time, which is far higher than the court's overall rejection rate of 49 percent, according to court statistics.
There are other factors that raise fairness questions about the secret court system.
Indigent defendants are at a significant disadvantage in clerks' hearings because they are not entitled to public counsel as they are in regular criminal court sessions.
And white defendants appear to have a slightly easier time obtaining access to secret hearings and then getting their charges rejected once in a hearing.
The racial disparities were particularly striking in some smaller courts. In Brookline District Court, clerks refused to issue charges for 80 percent of white defendants, compared to just 45 percent of minorities, according to court data from the second half of 2017.
Brookline's clerk, Edward F. Savage, said he was skeptical of the Globe's analysis of the 60 cases, noting he is "more than fair to people of color."
Nevertheless, some advocates and legal experts worry the system creates the potential for unequal treatment. The clerk magistrates themselves are hardly the picture of diversity: Nearly three-quarters are men, the majority of magistrates are white, and the median age is 60.
"We should be gravely concerned about a private process - or a process that's not subject to scrutiny - that disproportionately advantages white people," said Rahsaan Hall, the director of the racial justice program at the American Civil Liberties Union of Massachusetts.
The role of clerk magistrates
To hear clerk magistrates describe their job, the post sounds almost like a traditional village elder - mediating disputes, doling out second chances after foolish choices, dispensing wisdom for better living. The law is important, they say, but not as important as helping people.
"I think the best clerks doing this work are non-lawyers," said East Boston Municipal Court clerk Joseph Faretra, who never earned more than an associate's degree in college. A non-lawyer "sometimes has more practical experience and common sense." Find out what happens in your local courthouse
Faretra, who has held his post since 1974, readily acknowledges that he sometimes blocks criminal charges from going forward even when police have enough evidence to show probable cause.
"I don't have a stamp," he said, raising his fist up and down as if he was stamping a stack of documents. "It's compassion and understanding. That's what guides the clerks' offices."
"We're a social agency," he explained, adding that it is relatively easy to figure out whether someone made a mistake and deserves compassion or is a career offender who should be charged. Pat Greenhouse/Globe Staff East Boston Municipal Court clerk magistrate Joseph Faretra defends his work, saying he sees himself as helping people.
"You know, I know, we all know who deserves a break and who doesn't," he said.
No clerk gives more people breaks than Kevin G. Murphy of Chelsea District Court, whose office refuses to issue criminal charges at the highest rate in the Commonwealth. In 2016 and 2017, nearly 82 percent of cases never made it out of a secret hearing in Chelsea. It's a staggering statistic that caught even Murphy by surprise when the Spotlight Team presented the information to him.
A black and white profile picture of Kevin Murphy
Chelsea Record Photo
Chelsea clerk magistrate Kevin Murphy.
But Murphy, who never attended college, insists that many of the cases that come before him are people getting "emotional" - domestic disputes, friends in an argument who regret calling the police - and these cases would never make it to trial.
He said he has a rule that helps him determine whether charges are serious: If the victim doesn't appear at the hearing, he usually sides with the defendant and doesn't issue the criminal charge.
Murphy likened crime victims to job applicants. "If you don't show up for your interview, you don't get the job, or they just disregard your application," he explained.
But Murphy's rule is based on his own preference rather than any law. Victims aren't required to attend the hearings and they aren't always notified when they are taking place. And some victims, especially in cases of domestic violence, have a justifiable fear of showing up to private hearings where they may be sitting feet away from their alleged abuser.
Murphy's reliance on his personal rules may help explain the wide variations in how clerks handle their private hearings - and who gets one in the first place.
Do you want to share your experience with these private hearings?
Contact us with your confidential tips
Send a tip
This haphazard approach to justice allowed a sitting judge who was caught on video grabbing a $4,000 watch to walk away with a clean record. The police and prosecutor said they wanted Judge Patricia Curtin to be arraigned on a felony larceny charge without a hearing after she took a Cartier watch that did not belong to her from the security line conveyor belt at Logan Airport in 2014.
But the East Boston clerk's office chose to hold a private hearing instead. That appears to contradict a 2003 court ruling that clerks should only schedule hearings in felony cases when police request them.
After holding the hearing, the East Boston clerk, Faretra, said he declined to issue charges because police and the judge's lawyer announced that they had struck a deal to resolve the case - a claim both State Police and the Suffolk district attorney's office adamantly denied. When a Globe reporter asked Faretra about the discrepancy, Faretra responded: "There is no reason to talk about that."
Like most clerks, Faretra said he doesn't record show cause hearings - even though the district court guidelines recommend electronic recordings of clerks' hearings - so there is no record of what actually occurred. The paper documents have long since been destroyed, which is required under state law for charges that aren't issued. Curtin, now retired, told police at the time that she grabbed the watch by mistake and didn't immediately return it because security workers were busy.
There are few requirements, educational or otherwise, to become a clerk magistrate, despite the fact that the job has lifetime tenure and a salary of about $155,000 and, unlike judges, no mandatory retirement age. Quincy District Court clerk Arthur Tobin, 88, is still on the job, one of nine clerks who are older than 70, the mandatory retirement age for judges.
A number of clerk magistrates have strong political connections. That includes Falmouth clerk Edward Teague, a longtime state representative for Barnstable. In Natick District Court, Brian Kearney was married to a state lawmaker when he was appointed.
Murphy, a lifetime Chelsea resident, worked his way up to his current post from his start as a young messenger in the Superior Court, in part by cultivating close political ties. When he was appointed clerk magistrate for Chelsea in 1995, a parade of politicians offered to speak on his behalf at his Governor's Council hearing, including state leaders in both the House and the Senate and a Superior Court justice, records show. In his office in Chelsea, Murphy hung up a gift he got when he left the Superior Court: It's a caricature of him and his wife with a former state representative dressed as a vampire in the background, a nod to the lawmaker's late-night social life.
Over the years, Murphy has faced criticism about the way he runs his office, and in 2012 he was temporarily reassigned to Salem District Court after the Chelsea office lost guns that were criminal evidence.
And though graduating law school is not required, clerks are subject to evaluation by the Joint Bar Committee on Judicial Appointments and approval by the nine-member Governor's Council.
But objections from the committee aren't enough to stop a nomination: Kearney won his post even though the Joint Bar Committee on Judicial Appointments found him "not qualified."
The Governor's Council members sometimes challenge candidates, but a staff member couldn't recall anyone being rejected since 1994, when William Weld was governor.
A black and white profile picture of William Lisano
Lowell clerk magistrate William Lisano.
For instance, when William Lisano was nominated to be clerk in Lowell District Court in 1993, advocates against domestic violence warned that Lisano had faced abuse accusations from his wife. Rape Crisis Services of Greater Lowell and other women's organizations said in a letter to the Governor's Council that, if the allegations were true, his appointment would "create an enormous injustice to victims of domestic violence."
But Republican Governor Weld nominated Lisano, a former state trooper and driver for the GOP, anyway. And a group of police prosecutors heartily endorsed him in a letter to the council.
In the end, Lisano was approved. Years later, he was temporarily removed from his post in 2015 as police investigated another allegation of abuse from his wife. He was found not guilty in 2016.
The lifetime appointments have also allowed some clerks to continue in their positions despite years of problems. In Hingham, longtime clerk magistrate Joseph Ligotti's brusque and disrespectful manner sparked many complaints after he was appointed in 1989, according to a 1991 Globe article. But he stayed on the job for more than two decades.
In 1992, he was prohibited from conducting court hearings for six months and ordered to undergo sensitivity training after the Globe revealed he had loudly berated people in public and misled them about their options within the court. He was again suspended in 2000 after a court committee found he had illegally issued an arrest warrant and was rude to people within the court.
Such seeming insensitivity was again on display when a worker was accused of abusing babies at Hingham's Bright Horizons day care by force-feeding and roughly rocking the children. In 2016, Marie Millette allegedly shoved a spoon into a baby's mouth and fed her until the child vomited, according to police. Coworkers told police that Millette force-fed hot dogs to one child and shoved a baby bottle into another child's mouth while he was screaming.
A black and white photo of Marie Millette in court
John Tlumacki/Globe Staff
Marie Millette in Hingham District Court in May 2018 faced assault and battery charges. Her case wound up in public court only after prosecutors intervened.
Ligotti and an assistant clerk both declined to issue charges in two separate hearings.
In one bizarre exchange in 2017, Ligotti wondered aloud why the children didn't report the abuse themselves, according to a recording of the hearing.
"The children are all 2 . . . " the police detective responded, trailing off. "The children are very young."
Ligotti acknowledged that he could easily issue charges for the case, but he decided not to, in part because state social workers found evidence only of child neglect, a less serious offense than abuse.
A black and white profile picture of Joseph Ligotti
Bill Brett/Globe Staff
Former Hingham clerk magistrate Joseph Ligotti.
After parents objected to Ligotti's decision, the district attorney's office asked a judge to intervene and the judge agreed to issue charges. Millette pleaded not guilty in May to reckless endangerment of a child and assault and battery. By then, Ligotti had retired. Ligotti declined to comment; an assistant clerk said police didn't provide sufficient evidence.
Earlier this year, Amanda Hightower, of Brockton, said her toddler son is still recovering from his time at Bright Horizons and re-learning how to eat by himself. Her husband, an attorney, said he was stunned that the clerk magistrates initially rejected criminal charges against Millette, based on the 17-page police report.
"It's impossible for a magistrate to not find probable cause after reading that," John Hightower said. Is it constitutional?
Some legal experts question whether the private hearings are even permitted under the US Constitution. With very few exceptions, the US Supreme Court has ruled that the public must have access to criminal proceedings under the First Amendment.
Clerks' hearings "should certainly be open," said Jennifer Nelson, an attorney from the Reporters Committee for Freedom of the Press. "It serves as a check on the judiciary and the prosecution to make sure there is some light on the process and abuses do not occur."
In 1986, the Supreme Court ruled that the public had a First Amendment right to see the transcript of a proceeding in California where magistrates decided whether there was probable cause to go forward with a murder case. Nelson argued that the private clerks' hearings in Massachusetts are comparable and that the public should get the same "constitutional right of access."
But the Massachusetts Supreme Judicial Court ruled in 2007 that clerks' hearings are more like grand jury proceedings, which have been closed to the public since Colonial days. Grand juries meet privately and decide whether there is enough evidence to indict a defendant. Similarly, the court noted, clerks' hearings happen before criminal charges are formally issued and, thus, could potentially deal with spurious allegations that could harm someone's reputation.
Emily Zendt/Globe Staff
Nelson believes that the SJC failed to recognize key distinctions between show cause hearings and grand jury proceedings. Grand juries, for instance, are composed of citizens, while clerks are government employees who should be publicly accountable for their actions.
"I think the [SJC] analysis was flawed," Nelson said.
UCLA Law professor Eugene Volokh said there's a good argument that clerks' hearings are required to be public under the Constitution. But he said it's not clear-cut and it might be difficult to persuade a federal court to overturn a decision by the SJC. "When one court does something, it's a fair bet other courts will do the same," he said.
The continued secrecy of the courts worries advocates for victims of domestic violence, who say they often see violent crimes funneled to clerks' hearings.
Sherry Smith, a staff attorney with Greater Boston Legal Services who previously worked at the Essex district attorney's office, said such disputes should be heard in public courtrooms, where there is far more accountability. At a minimum, she said, the hearings should be recorded and clerks should not have the authority to settle cases.
Leneeth Suazo, the woman who was pregnant when she said her ex-boyfriend assaulted her, also points to the need for public accountability in clerks' hearings. She wonders whether there would have been a different outcome had the case been heard in an open courtroom before a judge. Maybe then, her ex-boyfriend might have been charged - and she would feel less frightened.
Several weeks after the Dorchester clerk refused to issue the assault charge against Suazo's ex-boyfriend, Suazo moved out of Boston for safety.
Even though there was a restraining order in place, Suazo said she felt vulnerable because Phane wasn't held to account in the clerk's hearing. Dorchester's clerk magistrate, Anthony S. Owens, refused to research how his assistant clerk handled Suazo's case, saying he could not comment if there is no public record.
Suazo, who asked that the Globe use her middle name to protect her identity, worried her ex-boyfriend would try to hurt her or their unborn child. Soon enough, she began receiving calls from someone with a private number who breathed heavily into the phone.
After her son was born in June 2017, Suazo heard from her ex-boyfriend's friends and a relative that he wanted to be a part of the boy's life. One of Phane's friends told her that she doesn't belong in this country, repeating a line that Phane yelled when he got angry.
"I am still really scared," said Suazo, who fled an abusive father in Honduras.
So why hasn't she called the police?
Because, Suazo said, it got her nowhere the last time.
Join the discussion
For tips and feedback, please contact email@example.com, firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org. You can call the Spotlight Team at 617-929-7843, or send a tip here.
Jeremiah Manion, Joshua Miller, and Eric Moskowitz of the Globe staff and Globe correspondents Zach Ben-Amots, Kayla DiPilato, Morgan Hughes, Zipporah Osei, and Julia Preszler contributed to this story.
Graphics, design, and development: Saurabh Datar and Irfan Uraizee
Lead photo: Suzanne Kreiter
Illustrations: Ryan Huddle
Video: Emily Zendt
Video project editor: Anush Elbakyan
Audience engagement: Heather Ciras
|Send comments to: email@example.com|