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SJC will study rate of OUI acquittals

Says confidence in judiciary paramount; More than 80% go free in jury-waived trials

The state’s highest court has opened a formal inquiry into whether the acquittal rate in drunken driving trials before judges, a rate that now eclipses 80 percent, is unusual and excessive, a step it called necessary to assure the judiciary’s integrity.

The Supreme Judicial Court announced the inquiry yesterday, the day after the Globe Spotlight Team reported that district court judges are acquitting accused drunk drivers at a rate that is about 30 percentage points higher than that of juries, a degree of leniency that specialists have said is virtually unsurpassed in the United States.

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The SJC said the confidential review has already begun and is being led by Jack Cinquegrana, a former assistant US attorney and past president of the Boston Bar Association.

“Public confidence in the judiciary depends on its belief in the integrity of the judicial process, judges, and their decisions,’’ the justices said in a prepared statement. “To preserve the public’s trust and confidence, the courts must be, and must appear to be, fair and impartial in all cases.’’

The Spotlight Team reported that in some counties, the rate of not guilty verdicts by judges in drunken driving cases is soaring. Judges in Suffolk County, for example, are acquitting defendants 88 percent of the time in operating-under-the-influence cases. Plymouth County judges are ruling against prosecutors 86 percent of the time.

District Court Chief Justice Lynda M. Connolly and other judges have said the conviction rate is low because prosecutors, sensitive to public opinion, are reluctant to dismiss flawed OUI cases that lack strong evidence.

Cinquegrana has been asked to gather facts, not to impose discipline.

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He has been asked “to determine the rate of acquittal in jury-waived trials on charges of operating under the influence of drugs or alcohol and examine whether that rate differs from the US average and from the rate of acquittal in other criminal cases in District Court and Boston Municipal Court,’’ the justices said.

Cinquegrana “has also been asked to explore whether the acquittal rates of certain . . . judges are substantially greater than the statistical average and, if so, to identify the possible reasons for the disparity.’’

The Globe report noted that there is no US clearinghouse for state-by-state acquittal rates for OUI cases. But the newspaper’s review of data available from other states found nothing approaching Massachusetts’s acquittal rate for bench trials, trials at which judges, not juries, hear evidence and render verdicts.

“Nobody has a 75 percent to 85 percent acquittal rate on contested DWI trials,’’ said Warren Diepraam, a nationally recognized specialist on drunken driving prosecutions who is based in Texas.

The review by Cinquegrana - of the law firm Choate Hall & Stewart - is “confidential and independent,’’ the justices said. Cinquegrana, a former high-ranking Suffolk County prosecutor, said in a prepared statement that he would not answer questions without the SJC’s approval.

The SJC said it will decide what, if any, action to take after Cinquegrana’s review.

“As judges, we recognize the delicate nature of this preliminary inquiry,’’ the SJC said. “Our system depends on judges being able to decide a case fairly but independently, without fear or favor.’’

As the SJC announced that its inquiry is underway, the state’s leading antidrunken driving advocates called yesterday for a separate inquiry by the state’s Commission on Judicial Conduct into the high number of acquittals of accused drunk drivers.

Some of the state’s district attorneys renewed calls for state lawmakers to enact legislation that would allow prosecutors to block a defendant’s unilateral decision to opt for a trial before a single judge instead of a jury.

“How is it possible that 82 percent of these cases wind up as an acquittal?’’ asked David DeIuliis, program manager for Mothers Against Drunk Driving in Massachusetts, who called on the state’s judicial conduct board to investigate. “They need to look at these cases and the judges making these rulings. It sends a terrible message that this is not a priority for some of these judges.’’

Ron Bersani - whose 13-year-old granddaughter, Melanie Powell, was struck and killed by a drunk driver in 2003 - agreed.

“These percentages and the cases [the Globe] pointed out cry out for justice,’’ said Bersani, who was the leading force behind the 6-year-old Melanie’s Law, which mandated ignition locks for repeat drunk drivers. “Justice is not being meted out. They should be looking for judicial misconduct and see if the verdict rendered could be supported by what happened in the courtroom.’’

Gillian E. Pearson - executive director of the Commission on Judicial Conduct, the state agency that investigates judicial wrongdoing and can recommend discipline - was not available for comment.

The Globe’s report and the SJC’s decision to announce its inquiry appeared to lend new momentum to an effort by some of the state’s district attorneys to scrap the current system under which an OUI defendant can opt for a bench trial, often at the last minute.

Plymouth District Attorney Timothy J. Cruz is pushing a bill that would allow prosecutors to object to any jury trial waiver. That would, in effect, adopt a federal model and the system used in many states that requires that the decision be made jointly by defense and prosecution.

“We’ve heard of judge shopping, and this would eliminate judge shopping or at least slow it down,’’ Cruz said. “All we’re looking for is a fair trial.’’

House Speaker Robert A. DeLeo and Senate President Therese Murray said yesterday that they are willing to discuss the proposed legislation with district attorneys such as Cruz and Bristol District Attorney C. Samuel Sutter, who is also supporting the change in the law.

“I’m willing to talk to them about it and see it go through the Judiciary [Committee] process,’’ DeLeo said.

Governor Deval Patrick offered no opinion when asked yesterday whether he would embrace the district attorneys’ push to allow both the prosecution and defense to have a say before judges - and not juries - render verdicts at trials.

“I’ve got to do my homework before I offer you an opinion,’’ the governor said.

But he said he was disturbed by the high rate of acquittals of accused drunk drivers by judges.

“The findings in the article I read yesterday were troubling,’’ Patrick said. “But I don’t want to start second-guessing judicial decisions on the strength of the article alone.’’

Noah Bierman of the Globe staff contributed to this report. Thomas Farragher can be reached at farragher@globe.com.

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