A recent conviction of a Massachusetts police chief for extortion raises questions about whether clerk magistrate’s hearings, a common type of criminal procedure in Massachusetts courts, should have more transparency. In almost all courts, these hearings are closed to the public and the media. Clerk magistrate’s hearings are used to find if there is sufficient cause to proceed with a formal criminal charge against a defendant.
Former Lee, Massachusetts police chief Joseph Buffis was convicted of extortion last month for his role in coercing a couple to donate to a charitable toy fund he controlled in exchange for a favorable outcome in a prostitution case. He was found not guilty of other charges, including multiple counts of money laundering and wire fraud related to the toy fund. He faces up to 20 years in prison for the extortion charge and will be sentenced on October 19.
The extortion revolved around a prostitution sting that resulted in a criminal citation for Thomas Fusco and Tara Viola, the former owners of the Inn at Laurel Lake. Viola was charged with sexual conduct for a fee, and both were charged with keeping a house of prostitution. Buffis knew that Fusco and Viola were eager to work out any deal that would both get them out from under the charge and stop any additional bad publicity from destroying their business.
He concocted a scheme where he would agree to not issue the criminal complaint at a clerk’s hearing, have them sign non-disclosures about the agreement, and even issue a memo to his own department to be silent on the matter in exchange for a $4000 charitable donation to his fund. He worked out this arrangement in a meeting before the hearing, and also convinced them not to bring their own attorney.
Buffis counted on the fact that proceedings at a clerk magistrate’s hearing are closed to the public. He used the flexible rules and his power as a police prosecutor to his advantage to force the donation, in exchange for quietly killing the charge.
The clerk magistrate himself who presided over the hearing had no role in either the payment or the non-disclosure, which is very unusual. However, it is common for a Clerk to agree to not issue a criminal complaint when the police prosecutor in not interesting in pursuing the case further.
How clerk magistrate’s hearings work and how they can be exploited
Clerk magistrate’s hearings are a common, but poorly understood criminal proceeding in Massachusetts courts. For misdemeanor offenses, a police officer can, at their discretion, issue a criminal citation for a person to appear at a clerk’s hearing instead of arresting them. Also, if someone is suspected of a misdemeanor crime not witnessed by a police officer, they are always issued a citation. A “show cause,” or clerk magistrate’s hearing is to determine if there is probable cause to issue a formal criminal complaint and proceed with charges.
Clerk’s hearings are closed to the public and the press in almost all courts, including Southern Berkshire District Court where this hearing took place. The widely understood reason why these hearings are not public is to protect the privacy or the accused, which is generally a good thing because a defendant at a clerk’s hearing has not been arrested or charged with a crime.
The magistrate has a great deal of discretion in whether or not to proceed with issuing a criminal complaint. If the prosecutor is not pursuing the charges aggressively or is willing to cut a deal in exchange for not issuing the charge, the magistrate will almost always agree. The magistrate can also rule against a prosecutor arguing in support of the charge if he doesn’t find sufficient probable cause to proceed, or for any other reason in the interest of justice.
It is a police prosecutor from the department, typically a high ranking officer, and not an Assistant District Attorney who is in charge of the prosecution. That is how Buffis was able to control the outcome of the hearing in this case.
It is not required that the defendant have his own attorney at the hearing, but it's usually a good idea. A defense attorney’s role, besides winning the hearing on the facts, can be to help negotiate a creative solution to avoid charges for his client. However, alternate solutions are almost always tied to solving the problem, not just a simple payout.
For example, with a leaving the scene of an accident charge, it is typical to work out a deal where all damages are paid by the defendant or his insurance. Or in drug cases, the defendant might be required to complete a treatment program. If these terms are agreed upon and the conditions are met, the police will drop the case.
Should clerk’s magistrate’s hearings be opened up to the public?
There has never been a definitive answer as to how Massachusetts Supreme Judicial Court Rule 1:19 concerning media access applies in clerk magistrate’s hearings. The rule states that:
A judge shall permit photographing or electronic recording or transmitting of courtroom proceedings open to the public by the news media for news gathering purposes and dissemination of information to the public, subject to the limitations of this rule.
However, most courts do not classify clerk magistrate’s hearings as “courtroom proceedings open to the public.” They are almost always open only to the parties involved and court officers. To my knowledge, the only district courts that have clerk magistrate hearings open to the public and media are Newton and Quincy.
A publicly accessible hearing would have made this extortion attempt difficult, if not impossible. However, I believe what happened in this case is very rare. And keeping the defendants names off the record is a very reasonable privacy request, given that unless a complaint is issued, they are not charged with any crime.
In fact, in the few courts that do have open clerk’s hearings, like Quincy District court, I have in the past requested that my client’s hearing be moved to a closed court to protect his privacy in the case of a delicate and potentially damaging public accusation.
So I believe that it still makes sense to keep these hearings closed. To respond to the Buffis extortion by opening all clerk’s hearings would be an example of "hard cases make bad law." This was an extreme and unusual situation that would cause more harm than good for individual rights.
But the public does have a right to know what is going on in its courtrooms. Government transparency and as much openness as possible in all courtroom practices should be the goal.
It would be reasonable to track the outcomes of clerk magistrate’s hearings, as long as the names of those not ultimately charged is kept private. That can help inform the public of both government overreach, and flaws in the process and outcomes.
Russell Matson is a drunk driving and criminal defense lawyer in Braintree, Massachusetts. He represents clients on criminal matters across Massachusetts. His web site is http://www.madrunkdrivingdefense.com.