METADATA FOR EMTAF
Private citizens can file criminal charges in Massachusetts ‘secret’ courts
Massachusetts is one of a small number of states that allow private citizens to go before clerk magistrates to lodge serious criminal complaints that are vetted, and sometimes settled, in secretive hearings.
By Nicole Dungca and Jenn Abelson
Priscilla Rodas believed the worst was behind her after she reported a violent road rage case that left her with a black eye and a facial fracture.
After Brookline police arrived at the scene in September, they reviewed a security video of the altercation, and sought court approval for criminal charges against David Cataldo, a retired Boston police officer, for allegedly hitting Rodas in the face and assaulting her 15-year-old son.
But not long after, a call from her lawyer stunned her: Cataldo had used a little-known provision of the state’s court system to turn the tables and seek criminal charges against her and her son.
Massachusetts is one of the small number of states that allow private citizens — without the backing of police or prosecutors — to ask court officials to issue criminal complaints. These allegations are vetted, and sometimes settled, in a secretive system that has no parallel in any other state.
Some states that allow private citizens to initiate criminal cases limit the charges to those that have little to no jail time, such as personal disputes involving misdemeanor theft or trespassing. But in Massachusetts, citizens can also file for felony charges in the system, which largely handles cases initiated by police. Defenders of the citizens’ powers to file charges say it is a way for the accused to respond to what they see as unfair criminal charges.
But some of these citizen-initiated cases can also take on a troubling aspect, if people accused of crimes seek charges on their own to allegedly intimidate their victims into potentially dropping the original accusations, according to victims’ advocates and lawyers.
They say some defendants exploit the private clerk magistrate system through such counter-claims in an effort to avoid justice. Only nine states have a process for private citizens to initiate criminal cases, according to a 2015 survey by the National Crime Victim Law Institute.
In the Brookline case, Cataldo went to Brookline District Court, where he filed an application for a criminal complaint against Rodas, a 49-year-old mother of four, and her son, alleging that they assaulted him near Brookline Village. While she was alarmed to learn this, she said she refused to be intimidated into dropping her original charges.
Cataldo declined to comment through his attorney.
He was investigated several times by the Boston Police Department’s internal affairs division for complaints of alleged violence or excessive force, one of which was sustained while others were unfounded or not sustained upon review, according to records obtained by Rodas’s lawyer and reviewed by the Globe. He retired this year from the department, which did not respond to requests for comment on his internal affairs investigations.
Cataldo worked as an on-call campus security officer for the Massachusetts College of Pharmacy and Health Sciences but was suspended Thursday by the school after an inquiry by the Globe.
During a hearing in December — at which the Globe was barred access — Patrick Bulmer, an assistant clerk magistrate, approved the charges against the retired officer but also approved his counter-claim against the mother.
So she is facing the same misdemeanor assault charge as the man who she says punched her as she tried to keep him away from her son.
“I feel like less than nothing,” said Rodas, as she emerged from the clerk’s hearing. “Someone hurts you, and it’s still on you.”
‘I feel like less than nothing. Someone hurts you, and it’s still on you.’
Both will be arraigned on Jan. 30. The case against the son has been transferred to juvenile court and he has not been formally charged. Bulmer did not return requests for comment.
The Globe reviewed footage of the incident provided by Rodas’s lawyer and it appears to confirm the police report of the case: Officer Daniel Lalli cites MBTA bus security video as evidence that Cataldo was “the aggressor” and that the teenage boy got into a fight while protecting his mother. In the video, Priscilla Rodas appears to be trying to separate the boy and the former officer as they threw punches, then holding Cataldo.
Cataldo alleged injuries from his altercation with the teenage boy. In his application for counter-charges, he said the mother also grabbed his shirt, and “threw between 2 (to) 5 punches,” but her punches were not apparent in the videos reviewed by the Globe. In a 911 call reviewed by the Globe, Rodas — who was waiting for police to come — tells the dispatcher that she is holding onto Cataldo so he wouldn’t leave.
This confidential clerk magistrate system was the subject of a Boston Globe Spotlight report in September, “Inside Our Secret Courts.” The report exposed an unusually secretive part of the state’s district court system, where clerk magistrates — many of whom do not have law degrees — have vast powers to decide if there’s enough evidence for criminal charges to go to public arraignment, as well as to negotiate settlements in cases.
The closed-door hearings are typically held in private offices without public notice, most hearings are unrecorded, and thousands of substantiated cases die there every year. Clerks rejected nearly 62,000 cases over the past two years, including roughly 18,000 cases in which the clerks believed there was “probable cause,” or enough evidence to justify the charges, according to the Globe investigation.
The report uncovered several cases in which defendants, including prominent public officials, escaped serious charges, even when there was substantial evidence that the suspects had committed the crimes.
Criminal defense attorneys openly acknowledge using the clerk magistrate system to lodge strategic counter-claims, if there is valid reason.
David Yannetti, a Boston attorney, advised a client charged with domestic assault and battery to apply for a criminal complaint against his ex-girlfriend. At a hearing in Brockton, Yannetti said he persuaded a clerk to charge the ex-girlfriend, though police alleged that during the argument, his client had allegedly struck her in the face and then kicked her after she fell down, according to the lawyer’s website.
When the ex-girlfriend was scheduled to be arraigned, his client and the ex-girlfriend asserted their Fifth Amendment privilege not to testify, and the case was dismissed. Yannetti would not identify the client to the Globe but described this case as “a common scenario.”
“Often if you are representing someone charged with domestic assault and battery, the alleged victim could well have been the alleged defendant going into it,” Yannetti said. “It’s just the police made a judgment call and you’re entitled to say, ‘If my client is charged with domestic violence, the other party should be charged as well.’ ”
Criminal defense attorney Michael Erlich said filing complaints against alleged victims when there is “legitimate grounds” can give defense attorneys “some leverage in resolving the case.”
Michele Murphy, a Melrose woman, said she felt forced to drop charges against her allegedly abusive ex-husband after he used the clerks’ system to intimidate her.
When Murphy dropped off her sons at her ex-husband’s Kingston home in 2006, she said, he roughly tossed her out his front door, and she landed on her face.
James M. Smith told officers that he threw Murphy out of his house because she wouldn’t leave, according to police and court records. Officers took photographs of her bruised face, and, Smith was arrested that night and charged later with assault and battery.
Weeks later, Smith applied on his own for a criminal complaint against Murphy in Plymouth District Court. In a closed hearing, Smith accused her of hitting him, as well as his fiancee, that night — an allegation not mentioned in the police report. Smith said in his complaint that he had grabbed his ex-wife to lead her out of the house, and that they both fell over. An assistant clerk magistrate, John Fitzsimmons, decided there was probable cause to issue the charges.
“The whole thing was upside down,” Murphy recalled. “All of a sudden, I was being accused of scaring them and abusing them. It was a black-and-white situation: There were two fire engines, at least three cop cars, and not one of those people or any of those men thought that I was the perpetrator.”
Murphy was so worried about having a criminal record that she agreed to drop her charges against Smith, so that he would drop his charges.
In an e-mail, Smith reiterated that he was trying to get Murphy out of his home after she attacked his fiancee.
“I dropped my charges because I just wanted to move on and although I was not happy with [Michele], she was still the mother of my children,” Smith wrote in an e-mail. “I thought she dropped her charges for the same reason.”
Fitzsimmons and a spokesman for the Plymouth County District Attorney’s Office did not return requests for comment.
Trial Court Chief Justice Paula Carey and Court Administrator Jonathan S. Williams had previously expressed their confidence in the clerk magistrate system, but since the Globe’s investigation this fall, Carey has convened a panel to review the guidelines for the hearings. Governor Charlie Baker and top legislators also expressed a need for transparency.
Some people who support keeping the magistrate hearings secretive often cite the need to protect individual reputations,
saying these citizen-against-citizen cases sometimes bring out baseless accusations and need to be kept private.
Daniel Hogan, the clerk magistrate of the Boston Municipal Court’s Central Division who heads one of the clerks’ associations in the state, said it’s important to preserve the rights of individuals to request criminal charges, instead of simply relying on police or district attorneys to initiate charges.
“I think the courts would be hard-pressed to prevent someone seeking any redress,” he said.
But other attorneys have argued that on the few occasions they encounter private complaints, they’re initiated as a way to intimidate victims. Anne Gillespie, a Newton family law attorney, also said she couldn’t think of a reason why the avenue should exist.
“How could it possibly protect a victim if it’s used as a sword and not a shield?” she said.
David Traub, a spokesman for the Norfolk district attorney’s office, declined to comment on the Brookline case because the office had not yet reviewed it.
He said prosecutors respect the right of citizens to seek redress but expressed disappointment for those abusing the complaints.
“As with any abuse of the criminal system,” he said, “we take a dim view of any party making counter-factual claims for the purpose of harassing any other party.”