We understand why some clerk magistrate’s hearings are private. Accusations are easy to make. Providing evidence to back up those accusations is more difficult, and you don’t want to sully the reputation of an individual with a baseless claim.
That wasn’t the case with Paul Bagnall, the Edgartown shellfish constable, who is accused of intentionally damaging his neighbor’s lawn with his town truck.
Bagnall was investigated by the Edgartown Police. A detective spoke with Bagnall. He also spoke with Bagnall’s neighbor. And he examined evidence, including a videotape.
We petitioned clerk magistrate Liza Williamson for access to a clerk magistrate’s hearing involving Bagnall — and were denied.
We think Williamson got it wrong. Her reasoning just doesn’t work in this case.
“The legal considerations which dictate the public character of a trial are not present here,” she wrote. “There is no tradition of public access to show-cause hearings, which are similar to grand jury proceedings. Such secrecy protects individuals against whom complaints are denied from undeserved notoriety, embarrassment, and disgrace.”
Williamson’s decision went on, “This is particularly significant since there is no libel protection in civil law against accusations made in a criminal complaint application, no matter how scurrilous.”
With all due respect, this case was investigated by a reputable police officer, and is not just a neighbor bringing a criminal complaint forward.
Finally, Williamson wrote, “Since the accused is ordinarily entitled to privacy at this early stage, public hearings are the exception rather than the rule. The fact that the accused is a public official and operating a town-issued truck is not itself a sufficient reason to open a show-cause hearing to the public. This matter has not been in the news or otherwise made known to the public in such a manner that the public interest outweighs the privacy of the defendant.”
In this case, Bagnall had already been summonsed on a charge, and the case diverted to a magistrate’s hearing. That means it appeared in the court report, and the police report is public record. The Times was in the process of reporting a story about the allegations, and spoke to Bagnall, who told us about the magistrate’s hearing the next day. We decided to petition for access and for the outcome before publishing the story.
We understand that Williamson is just following precedent. But bad precedent is bad precedent. It’s something the Globe Spotlight team attempted to shine the light on with a series of stories about these secret court proceedings. According to the Globe, only in Massachusetts are the magistrates’ hearings presumed closed. It should be the other way around. These hearings should be presumed open, just like other court proceedings.
Williamson did the right thing and issued a complaint for a criminal charge against Bagnall, and the court will ultimately decide his guilt or innocence.
Meanwhile, this case shows a system that’s broken. State Sen. Julian Cyr, D-Truro, and state Rep. Dylan Fernandes, D-Falmouth, and the rest of the legislature, can and should repair it in the public interest of transparency.
