Clerk Magistrate Makes Right Call on NHL Analyst Mike Milbury

There is little doubt that the Clerk Magistrate Hearing last week which resulted in the declination of charges against former Boston Bruins player, coach, and current NHL television analyst Mike Milbury restored some much-needed sanity and common-sense logic to the occasionally way-out-of-proportion parameters of youth sports.

How do I know this? I was not only once (okay, four times over) a sports parent myself, but I was also a long time hockey parent, spanning the careers of two sons from learn-to-skate through D-I high school. Suffice it to say, I witnessed a lot of out of control behavior in hockey rinks over the years, most of it by parents. In some instances, it reached levels that were not only egregious – including a threat to harm an 11 year old skater made by a coach for supposedly hitting the coach’s son from behind during an organized knock-down drill in practice – but quite embarrassing. None of these incidents, however, were ever taken to the criminal justice system.

Having reviewed the incident report in the Milbury matter, I’m not sure why it was referred to the courts, either. My sense, based on my former career as both a federal and state prosecutor, is that a combination of the law of unintended consequences forced the prosecutor’s hand to prevent it from looking like Milbury was receiving special treatment.

Whether the Brookline police were actually lining Milbury up for harsher-than-normal treatment because of the spoiled-child syndrome, where the player-complainant’s parent was unwilling to discipline her own child for his bad-behavior, is irrelevant. What is relevant is that the System worked out the way it should have in this particular case and for that, we should be grateful we do have a screening mechanism like the Clerk Magistrate Hearing.

While some people call it an anachronism, Clerk Magistrate hearings exist because persons accused of committing a misdemeanor are generally entitled to an opportunity to be heard in opposition to the criminal complaint. For the most part, this only occurs when the application for a complaint is solely for a misdemeanor, no arrest has taken place for that offense, the complaint has not been summarily denied, and other statutory exceptions do not apply. What this means in practice is that the majority of misdemeanors which were not committed in the presence of a police officer, as well as civilian-initiated criminal actions, are often referred to the Clerk Magistrate to determine whether there is sufficient probable cause for a misdemeanor complaint to issue.

The Clerk Magistrate is not the finder of fact, but simply decides whether probable cause exists to for a criminal complaint. To be sure, the probable cause standard involved is minimal; "...the facts and circumstances within the knowledge of [the Magistrate] are enough to warrant a prudent person in believing that the individual...has offense...", see Paquette v. Commonwealth. Still, there is no question that a fair and experienced Magistrate can and should function more as referee of sorts, placing higher emphasis on whether the matter at hand is in fact something that should be decided in criminal court.

Undoubtedly, Mike Milbury learned a valuable lesson here (in full disclosure, I’m a Bruins fan!) and is probably so deeply mortified and embarrassed that he let his emotions get the better of him that it will never happen again (and no, I am not saying it is appropriate for coaches to yell, curse or place their hands on their young players). But there is also a valuable lesson to be learned in the fact that sometimes our superfluous and antiquated systems really do have a value and a function and provide an opportunity for cooler heads to prevail, when "all about you are losing theirs."

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828