Charges against Boston officer disappear after private court hearing

SPOTLIGHT TEAM: Inside Massachusetts’ secret courts

“This is a kind of poster child for what is wrong with having secret courts,” said Pam Wilmot, executive director of Common Cause Massachusetts. “The public needs this information to decide what kind of malfeasance is happening and whether this is systemic.”

The Globe’s Spotlight Team learned about the cases while investigating the unusually secretive process that Massachusetts uses to consider requests — mostly from police — for criminal charges issued in district and municipal courts. The process is not replicated in any other state.

The hearings, overseen by clerk magistrates and assistant clerks, are usually not recorded, and are closed to the public and missing from public court calendars. Court officials frequently won’t even confirm or deny a specific case exists.

The Spotlight Team report, “Inside our secret courts,” published in late September, found the clerks dismissed nearly 62,000 cases in the hearings over the past two years, including more than 18,000, or 29 percent, where clerks acknowledged there was enough evidence to justify issuing charges. The report also found the way clerks ruled varied widely from one courthouse to the next and raised questions of whether the powerful and connected received special treatment.

A Hingham clerk, for instance, told a former police chief in a private hearing that he would dismiss a shoplifting case against him and his wife largely because of the efforts of his lawyer, a former state representative. And an East Boston clerk refused to issue charges against a judge caught on video taking a $4,000 Cartier watch at Logan International Airport.

Court officials have adopted guidelines saying the hearings are presumed to be private to protect the privacy of suspects who might be facing spurious accusations. But even they suggest making hearings open in high-profile cases, where the “public may question whether justice has been done behind the closed doors of the hearing room.”

In the wake of the Globe reports, Governor Charlie Baker and some lawmakers have called for more transparency about the process. Court administrators convened a panel to study possible reforms. And some advocates have called for opening up the process to the public to dispel suspicions about how the cases are handled, particularly when they involve public officials or serious charges.

In one of the cases involving the Boston police officers, the department alleged that Lieutenant Robert A. Dwan, a 26-year department veteran, fraudulently collected nearly $6,800 for hours he never worked between March and August of 2015. Dwan’s total pay topped $260,000 that year.

The media publicly reported at the time that Dwan faced an internal affairs investigation involving his attendance and hours, but the details were vague. The Globe recently learned he also faced criminal charges and it reviewed the case files, which are not normally available.

FROM THE ARCHIVES: Calls from Beacon Hill for transparency in closed-door hearings

The records show that a Boston municipal clerk approved six felony charges of larceny against Dwan on Nov. 4, 2015, based on a written application from Boston police.

But before Dwan, 54, could be publicly arraigned before a judge, Boston police requested the clerk’s office hold a hearing to review the charges, where police requested they be withdrawn behind closed doors, according to the clerk magistrate’s handwritten notes at the time. Boston police Sergeant Detective John Boyle said this week that the department agreed to drop the cases in exchange for a promise from Dwan to retire and pay restitution.

The clerk’s notes said the Suffolk district attorney’s office also requested the private hearing, but a spokesman for the prosecutor’s office, Jake Wark, said the records were “categorically inaccurate” and the DA’s office had no involvement in the decision to hold the hearing or drop the charges.

Ultimately the decision to withdraw the charges enabled Dwan to quietly avoid a potential jail sentence and keep his pension of more than $79,000 a year. Under state law, public employees can lose their pensions if they are convicted of crimes related to their jobs.

The clerk’s office also restricted access to the cases, so they wouldn’t show up in the public index.

“It was withdrawn, so technically it is not public and it does not exist,” said Boston Municipal Court clerk magistrate Daniel Hogan.

Still, Hogan said he decided to let the Globe see the files to show his office handled the case appropriately. “The court did exactly what the court is supposed to do,” Hogan said. “I have nothing to hide.”

A retired Springfield district court judge, William Boyle, questioned the way the clerk’s office handled the case, however, saying he doubted clerks had the authority to set aside criminal charges once they have been approved. Normally, those decisions are made by a judge.

“Once a complaint issues, that means the clerk cannot dismiss it,” Boyle said. “You don’t get a do-over.”

A court spokeswoman declined to comment, and Dwan’s attorney could not be reached.

A second criminal case also nearly died at another private court hearing this year — until a prosecutor stepped in.

Boston police accused Sergeant Detective William J. Woodley, who resigned last year, of fraudulently collecting nearly $13,000 in overtime he never worked between June and October 2016. That’s more than several of the state troopers allegedly stole.

Investigators said in court records they used GPS and visual tracking to confirm that Woodley did not actually work all the hours he claimed. That included 19 overtime slips for days Woodley never worked at all and 13 others where he allegedly inflated his hours. Woodley, 57, earned a total of more than $219,000 in 2016.

And it wasn’t Woodley’s first offense. An internal affairs report also accused Woodley and other officers of falsely reporting their hours in 2012.

Despite the evidence, an assistant clerk ruled in a closed-door, unrecorded hearing that there wasn’t probable cause to think Woodley committed a crime. The stated reason: Woodley offered to pay the department and the department accepted the offer, according to another assistant clerk.

The case would have ended there. But after learning about the decision, the Suffolk district attorney’s office appealed to a judge, who overturned the clerk’s ruling and issued a felony charge of larceny — making all of the records public.

Ultimately, Woodley’s attorney worked out a public plea deal to resolve the case. Woodley didn’t contest the allegations. And a judge agreed to dismiss the charges after 18 months, provided Woodley pays back the department and stay out of trouble. The deal will allow him to avoid jail time and keep his pension of nearly $115,000 per year.

Woodley’s attorney did not return calls seeking comment. But the Suffolk DA spokesman, Jake Wark, said prosecutors often make this type of deal for defendants with clean records.

The outcome, however, was announced in open court and records about it are available for public inspection, which would not have occurred if prosecutors hadn’t intervened and persuaded a judge to issue criminal charges.

Justin Silverman, executive director of the New England First Amendment Coalition, said it was important to handle the case in public.

“We have a right to know who’s committing crimes in our communities, especially when it’s a police officer responsible for upholding the law,” Silverman said. “Whether or not the officer should have avoided a conviction, that decision needs to be made publicly so we can monitor the court system and know that it’s operating fairly. Without this transparency, we’re all left to wonder if the system is working as it should.”

Nicole Dungca of the Globe staff contributed to this report. Todd Wallack can be reached at twallack@globe.com. Follow him on Twitter @twallack.