Firestorm in Massachusetts over Judicial Independence

District Attorney Dan Conley has long complained that trial judge Raymond G. Dougan is biased for the defense. Now, spurred by his complaints, and probably by coverage of his complaints in the press, the Massachusetts Commission on Judicial Conduct (CJC) has taken up the case. They are undertaking an unprecedented investigation of Judge Dougan. Usually, when the CJC investigates a judge, they are looking at unprofessional behavior of some sort. In this case, instead, an aggravated DA has pulled together a list of 25 or so cases that make Judge Dougan look, (at least to the public), biased against the prosecution. He has persuaded the CJC that this list of cases merits their investigation of Judge Dougan's 21 years on the bench.

The investigation has triggered a firestorm here in the Commonwealth, and head scratching, at least beyond. Judge Dougan has petitioned the Supreme Judicial Court (our top tier court) to bar the investigation. As far as anybody can tell, this is the first time in the 34 year history of the CJC that a judge under investigation has challenged its authority to investigate.

J. William Codinha, the special counsel leading the year-long investigation of Dougan, said it would set a bad precedent to allow Dougan to escape questioning. In a state where judges are appointed for life and do not have to retire until age 70, said Codinha, the commission is the only agency that can hold judges accountable for their actions.

If Dougan succeeds, “no sitting judge need ever remain truly impartial, for he may not be asked under oath if he is, and any improper bias or influence can remain safely concealed,’’ Codinha wrote in his memo to the court.

(from http://boston.com link above and an article in the Boston Globe)

But many people are echoing Judge Dougan's challenge to that investigation. The Massachusetts defense bar, is rallying to Judge Dougan's defense (don't laugh). In a post in the local legal blog, Massachusetts DUI Lawyers Blog, Benjamin P. Urbelis wrote

Conley mounted an unprecedented attack on the judge, having each of his Assistant District Attorneys who stands before the judge in a criminal case ask his honor to recuse himself on the grounds that he cannot be fair. (As a former prosecutor, I can say that this puts the young ADA in an extremely uncomfortable and difficult position). Conley took his cause even further when he asked the Judicial Conduct Commission and the Supreme Judicial Court to prevent Dougan from hearing criminal cases altogether.

Within days, the Massachusetts Defense Bar appropriately fired back, outraged by DA Conley's recent actions, which they call an attempt to intimidate judges.

Some judges are prosecutor-friendly, some judges are defense-friendly. That's the nature of our criminal justice system. Judges are expected to use their legal education, life experience, legal experience, and judicial experience to apply the law and ensure justice. Judges are human and will differ in the manner in which they handle and rule on cases. Case law is created when judges issue "Opinions." The extreme position that Judge Dougan is biased and a threat to our public safety could also be said of several judges that Massachusetts defense attorneys would love to remove from the bench; but we understand that it is not our job, nor our right, to do so.

(from MA. DUI Lawyers Blog)

Others defend Judge Dougan:

“I think the judge has an explanation, a good, solid explanation for any of the matters that are raised in that particular motion,” [Conley's motion to the CJC] said Michael Keating, the attorney for Judge Dougan. Keating says the district attorney’s motion mentions 25 or so instances out of some 50,000 cases that the judge has presided over. As a judge, Dougan acted within his discretion and independence, Keating says. But despite the challenge to his reputation, “he is precluded from giving that explanation under the code of judicial conduct.”

To support its claims of bias and unlawful actions, the district attorney, who declined to talk with us, points to the frequency with which the judge’s decisions have been appealed by the prosecution or overturned by the Appeals Court. He leads all judges in Boston’s district courts.

But defense attorney and author Harvey Silverglate says reversals and appeals don’t tell the story, especially with experienced judges familiar with the problems of evidence from police.

“District attorneys get very upset when there’s a judge on the bench who actually understands how the system works on the street,” Silverglate said. “They call that bias, but in fact it’s not. It’s simply an increased level of sophistication that certain judges have about how the system works.”

(from http://www.wbur.org/2011/04/20/conley-dougan )

Nancy Gertner, a retired US judge now teaching at Harvard Law School, has been a vociferous supporter of Dougan. “Here’s the thing: Judges are already held accountable,’’ she said. “They’re held accountable on appeal. This is an attack on someone whose opinions you disagree with.’’

She also made reference to an independent judiciary. She believes this investigation is bad news for independent-minded judges. “The idea that this will have no bearing on judicial independence is absurd,’’ she said. “I’ve literally never heard of a case where a judge is being investigated for the content of his decisions.’’

(from Adrian Walker, "Judging the Judge", column in the Boston Globe, April 9, 2012)

The shocking part of this story is that the Judicial Conduct Commission did not dismiss the complaint out of hand. Judge Dougan has had to ask the Supreme Judicial Court to intervene to block the JCC from requiring him to submit to questioning about his decisions. Really, there aren’t enough adjectives for how bad this is. Judges make decisions. That’s what they do. And every decision will leave someone unhappy and feeling like the judge was biased. To my knowledge, no judge has ever been required to explain himself absent some form of misconduct like having an undisclosed interest or ex parte communication.

Conley was able to assemble a list of cases that make Judge Dougan look bad, and to the lay observer, they certainly do. The judge did release a defendant before trial with horrifying results. But for crying out loud, we don’t pig pile on a judge for locking up a defendant who is later acquitted. Should we go after judges whose convictions are later reversed on appeal? Mr. Conley may not lose any sleep over the possibility that an innocent person will be convicted when a judge sleeps through the trial, but the rest of us rely on the judicial branch to thoroughly test the prosecution’s case. (snip)

I wonder if Mr. Conley would answer honestly if asked whether any judges are biased in his favor. It’s not a secret in the trenches. ADAs don’t even need to spell it out. After I rejected the offer of a plea deal, one young ADA was hugely amused. “A trial?” he chortled. “You’re going to try this to Judge X? Don’t come here often, do you?” Trying cases to some judges is just a slower way to plead guilty. Does Mr. Conley think his assistants should ask these judges to recuse themselves?

I am disappointed in Mr. Conley for acting like an uneducated hypocritical crybaby, but my real disgust is reserved for the Judicial Conduct Commission. How many complaints of bias (mostly brought by non-lawyers who don’t understand the concept of judicial independence) has the Commission dismissed with a form letter explaining that a claim of bias, without more, cannot be investigated? If the JCC did not have the courage to tell Mr. Conley to put on his big boy underpants, I surely hope the Supreme Judicial Court will.

(from Cambridge attorney Lowry Heussler, posting at SameFacts blog on April 7, 2012, "Dan Conley: much worse than a sore loser".