SJC allows police to “double-dip” with show-cause hearings

Show-cause hearings, also known as clerk-magistrate’s hearings, are a unique feature of the Massachusetts legal system, offering many of those accused of criminal conduct but not arrested a chance to privately contest charges before they publicly issue, thus potentially avoiding the expense, uncertainty, and reputational harm associated with a formal court proceeding. Established by statute under G. L. c. 218, § 35A, the main function of show-cause hearings is to assess whether probable cause exists for the criminal charges—usually solely on the basis of a police report attached to the application for a criminal complaint. Probable cause is a low legal bar—much less than the “beyond a reasonable doubt” standard applied at trial—but the Supreme Judicial Court (SJC) has also held that clerk-magistrates also have the discretion to “screen” or “mediate” charges that may be supported by probable cause but do not belong in the criminal justice system. 

Unfortunately, in Cabrera v. Commonwealth the SJC took a step backwards with respect to the protections offered by show-cause hearings. The case began in summer 2020, when police officers responded to a noise complaint and encountered the defendant, who, according to the police, was intoxicated and had a handgun visible in one of his pockets. Although the handgun was properly licensed, police sought a criminal complaint under G. L. c. 269, § 10H, which bans possession of a loaded firearm while intoxicated. In fall 2020, a clerk-magistrate held a show-cause hearing and found no probable cause. This ruling was based on a mistaken reading of § 10H as requiring the possession to be in a motor vehicle.  

The statute establishing show-cause hearings does not include any mechanism for review or appeal, but the SJC has held that a judge has inherent authority to revisit a decision not to issue the complaint if requested. In Cabrera, neither police nor prosecutors requested such a redetermination to correct the magistrate’s mistake about the meaning of § 10H. Police, however, had confiscated both the defendant’s handgun and his license to carry after the incident, and did not return them. Two years after the hearing, the defendant went to the police station at least three times to demand them back; police refused to return his belongings. At one point, the defendant suggested that he might sue the police department. Soon after these encounters, in May 2023, the same police officer who filed the original complaint application filed a new one, based on the same incident in 2020. A different clerk-magistrate found probable cause and allowed the criminal complaint to issue, leading to the initiation of a criminal case. 

The defendant moved unsuccessfully in the trial court to dismiss his case based on the result from the earlier show-cause hearing, under two theories: collateral estoppel and due process. Collateral estoppel is a common law doctrine barring the relitigation of an issue of fact once it has been determined by a final judgment. Due process is a constitutional principle that in certain circumstances protects defendants from unreasonable delay by the government in pursuing a criminal case. After the trial judge denied the motion to dismiss, the defendant filed a petition with the single justice, who reported the matter to the full SJC.  

Justice Gaziano, writing for the Court, rejected both of the defendant’s arguments. He concluded that the decision at a show-cause hearing is not sufficiently “final” for collateral estoppel to apply. One factor relevant to finality is whether a decision was subject to appeal or was in fact appealed; Gaziano held that the possibility of redetermination of a hearing outcome by a judge, which is available only as a matter of the judge’s discretion, was not sufficient. With respect to the due process claim, Gaziano emphasized that (as the SJC has already held) show-cause hearings are created by statute and are not required as a matter of constitutional law. The defendant thus had no constitutional interest in the finality of the outcome. The defendant had also not shown that the delay in submitting second complaint application had been long enough to prevent him from mounting an effective defense. Delays must be severely prejudicial before due process requires dismissal. 

Gaziano’s decision is particularly concerning for two reasons. First, there now appears to be no bar to police departments filing subsequent applications for criminal complaints based on the same facts until they find a clerk-magistrate who will grant the application—undermining the value of the protection that the Legislature has put in place by creating these hearings. Second, the SJC appeared to entirely ignore the potentially retaliatory nature of the police conduct here, where the officer filed the second application after the defendant sought return of his property and threatened litigation. Although in this case the first show-cause hearing decision involved a straightforward error of law—a fact which may have influenced the outcome of the appeal—the decision will apply to any instance where a clerk-magistrate decides not to issue a complaint.  

The only positive note for criminal defendants is that Cabrera reiterated that “clerk-magistrates may deny the complaint even if they conclude that the application is supported by probable cause, if prosecution of the underlying charge is unlikely.” Although this point had already been established by previous decisions, and is included in the guidelines for clerk-magistrates on the complaint procedure, police and even clerk-magistrates do not always understood the extent of this discretion. Explaining this aspect of the law is one crucial role that lawyers can play when representing those summoned to a show-cause hearing. 

If you or someone you know has been informed of a show-cause hearing, fill out our online intake form or call us at (617) 742-6020 to be connected with one of our criminal defense lawyers.