SJC Rules In Favor Of Judge Dougan: Judicial Ethics Commission Can’t Demand Reasoning Behind Judge’s Decisions – Part Two of Two

In my previous post, I explained the Massachusetts SJC’s ruling last week on the contretemps surrounding the question of whether or not the Massachusetts Commission on Judicial Conduct can allowably inquire into a judge’s reasons for his or her rulings. The issue arose because the Judicial Conduct Commission had launched an inquiry into one of the judges in the Boston Municipal Court following allegations of bias filed by the Suffolk County District Attorney.

Surprisingly enough, as a Dedham, Massachusetts criminal defense attorney, I disagree with this decision. I know that my colleagues in the criminal defense bar will disagree strongly with me, but I can’t agree with this decision. My opinion isn’t pro-prosecution, nor is it pro-defense. Nor am in any way saying that judges should be required to explain their reasoning if litigants, prosecutors or defense counsel don’t like a particular judge’s ruling. Such would be ridiculous. The Judiciary was designed to be independent for good reasons. Under typical, day-to-day “normal” circumstances, I don’t believe judges should have to explain their reasoning to litigants, to disaffected parties, or to the media.

However, the circumstances presented in judge Dougan’s case are anything but “normal” – and I don’t think that an honest advocate for either side of this argument can claim otherwise. The SJC’s ruling here can just as easily be used against criminal defense attorneys one day. Or against minorities, or women. Consider this: What if a judge somewhere in Massachusetts were to routinely – in almost every case that came before him or her – rule against black defendants. Or against women. Or against the members of any particular ethnicity or group. Let’s assume a judge were to rule this way no matter the evidence, and let’s say it happened in almost 100% of the cases before this hypothetical judge. In such a circumstance, such a judge would be essentially unstoppable. And that is not good public policy.

Once more, under everyday or “normal” circumstances, I don’t believe that a judge should have to explain or justify his or her reasons for a ruling to litigants, counsel, or anyone else. I believe this should only be an option in extreme circumstances, such as when:

• There is a clear, inarguable pattern of bias or lack of sound judicial reasoning, supported by objective data.
• A formal complaint has been made to the Judicial Conduct Commission.
• The Judicial Conduct Commission has made a finding that such questions may indicate a pattern of bias, and that such questions to a judge further the administration of justice true independence in the judiciary.

Further, when answering such inquiries under such rare circumstances, I believe that any such judge should be shielded from answering those questions in public, and should not be subjected to public scrutiny in the process of answering any such questions. But under extreme circumstances such as presented in the judge Dougan matter, I believe the Judicial Conduct Commission should have the power to ask for the judge’s reasoning and notes surrounding select cases.

My colleagues in the criminal defense bar, most of whom I admire, should not be celebrating the SJC’s decision so quickly. I believe they are trading a situational, short-term victory for a different, better ruling that would be legally wiser and healthier in the long run. One day in the not too distant future, if a judge appears on the scene with as strong a bias in favor of the prosecution as it appears judge Dougan has for the defense, I may hear those same colleagues regretting this ruling.

The judiciary should always remain staunchly unbiased in all cases and deliberations. I don’t see that with this particular judge, or in this particular situation. Ensuring truth in judicial deliberations is not advanced by the SJC’s ruling here.

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