The Kickham Comment - Boston Criminal Attorney Blog
Sorry I’ve been absent for a little while. With the summer waning and the heat still high, I took a few days off for the beach.
OK, back to work: The Supreme Judicial Court’s (SJC) ruling is finally in on the dispute surrounding the subject of whether the Massachusetts Commission On Judicial Conduct (otherwise referred to as the “Judicial Conduct Commission or “JCC“,) can inquire into the reasoning behind a particular judge’s decision (or decisions.) The Judicial Conduct Commission is the state government body that is empowered to investigate various allegations of wrongdoing by state court judges, whether that wrongdoing is on or off the bench. The operations of the JCC are highly secretive, for the purpose of protecting the independence of the judiciary and its members.
This ruling is sure to fuel a lot of talk radio time and fill a lot of space in the blawgosphere, so let’s get to it.
This whole controversy began a couple of years ago, when Suffolk County District Attorney Dan Conley‘s office determined (quite accurately,) that Boston Municipal Court judge Raymond Dougan consistently found in favor of the defense, even in cases when the evidence against the defendant was extremely strong. In the interests of fairness, it should be noted that Conley was concerned not merely because judge Dougan occasionally ruled in favor of the defense, but that he did so in almost always, regardless of the facts or the strength of the prosecution’s case.
In fact, a 2011 inquiry by The Boston Globe revealed that prosecutors in Conley’s office challenged judge Dougan’s decisions more often than those of any other sitting Boston Municipal Court judge. Further, that inquiry also revealed that either the Massachusetts Appeals Court or the SJC reversed or modified this judge’s rulings more than rulings issued by any other judges. Regardless of which side an attorney is coming from on this public policy issue, defense or prosecution, that one fact is pretty remarkable. In just one very noticeable case, judge Dougan dismissed drunk driving charges against a defendant who was a native of Peru, even though ¬the evidence indicated that the defendant’s blood-alcohol level was twice the legal limit. Twice the legal limit is pretty much beyond argumentation as to intoxication. Judge Dougan claimed he was serving “public justice” in dismissing the charges because the defendant might have faced deportation if convicted. As a Norfolk County drunk driving attorney, I have to admit (like it or not) that judicial reasoning is really pushing the legal envelope. The SJC reversed ¬Dougan’s ruling, holding that Dougan’s personal views on the subject of immigration “are irrelevant and undermine the principle of separation of powers.”
Because of judge Dougan’s history of making pro-defense rulings seemingly despite the facts and the evidence in many cases, in 2010 Conley undertook an extensive review of over 24 cases that his office had prosecuted in front of judge Dougan. Based on this review, Conley filed a 61-page complaint with the SJC and the Judicial Conduct Commission in December 2010, alleging a widespread pattern of bias against police and prosecutors. The JCC launched its own investigation into Conley’s allegations, asking judge Dougan to explain his legal reasoning in not only the 24 cases that Conley cited ion his complaint to the JCC, but in 27 others: 23 additional cases that the JCC found to be of interest, and four additional from a story on judge Dougan that had been published by The Boston Globe.
Judge Dougan responded by hiring his own attorney, who appealed to the Supreme Judicial Court, claiming the JCC had no right to seek Dougan’s personal notes in these 51 cases, because of the judicial independence that all judges are granted in their capacity as judges. That set the stage for war between the criminal defense bar and the state’s District Attorneys’ offices and police departments. Both sides, and the media, have been waiting for the SJC’s ruling, which is:
For the judge (and vicariously the defense bar in this matter,) nearly 100 %. In a unanimous ruling, the SJC for the first time articulated an absolute “judicial deliberative privilege” in Massachusetts. This privilege will allow judges to keep their notes and any reasoning secret and enable them to refuse to answer questions about how they ¬made their decisions. Speaking for the court, Justice Robert J. Cordy wrote that “We conclude that although holding judges accountable for acts of bias . . . is essential, it must be accom¬plished without violating the protection afforded the deliberative processes of judges.”According to Cordy, this privilege was always implicit, but henceforth will be openly articulated with this ruling, and will allow judges “to decide cases on the law and the facts as their best judgment dictates, without fear or favor.”
I’m a Massachusetts criminal defense lawyer. So where do I stand on this ruling? I’ll discuss that in my next post.