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Lawrence Harmon

Judging the judges in Mass.: Pursue accountability

Judge Raymond Dougan was accused of judicial misconduct by the Suffolk district attorney.

The Boston Globe

Judge Raymond Dougan was accused of judicial misconduct by the Suffolk district attorney.

Boston Municipal Court Judge Raymond Dougan is reportedly ecstatic now that a state commission has voted to dismiss a powerful complaint against him alleging bias against prosecutors and a stubborn failure to apply the law. Who can blame him? A lot of people would be giddy to discover they are untouchable.

Last year, Suffolk District Attorney Daniel Conley unloaded on Dougan — publicly — with numerous complaints about the judge’s decisions. Conley contended that Dougan illegally vacated sentences, frivolously suppressed drug evidence, canceled bail orders imposed by other judges, and even signaled to defendants that they would catch a better break from him than from a jury. Last year, a Globe review found that appeals courts reversed or modified Dougan’s rulings more than any other Municipal Court judge.

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Several of Boston’s super lawyers are touting the dismissal of the complaint as a victory for judicial independence. They characterize Conley as a menace who sought to unseat Dougan simply because the DA disagreed with the judge’s decisions. They are wrong on both counts. If anything, this case shows how difficult it is to discipline a borderline judge. And Conley deserves the public’s appreciation for having the courage to blow a hole in the black wall of silence that surrounds those who wear the robes.

The judicial accountability system in Massachusetts protects judges who show lousy judgment. In most other states, judges must face reelection or reappointment hearings. In Massachusetts, we make do with the Commission on Judicial Conduct, which investigates complaints against state courts. Secrecy is baked into the law creating the nine-member commission. It won’t acknowledge that Dougan underwent an investigation, never mind admit that the complaint was dismissed on or around Nov. 30. Even Dougan’s attorney, Michael Keating, calls it “the worst kept secret in Boston.’’

Judges do face discipline from the commission on occasion, usually in some out-of-the-way place like the Cape. Among the disciplinary possibilities are letters of admonishment and reprimands. But the targeted judge must agree to make a reprimand public. Why not just build hydraulic steel barriers around the judge and call it a day?

The state Supreme Judicial Court, which oversees the commission, deserves some credit for appointing respected attorney J. William Codinha to investigate Dougan. But not too much credit. Codinha subpoenaed Dougan in search of notes and bench diaries that might provide insight into what the judge was thinking when he made his decisions. But the SJC ruled that a judge’s mental impressions were off-limits to investigators.

So much for ever trying to decipher if bias against police, women, or anyone else played a role in some of Dougan’s disturbing decisions, such as refusing to sentence a defendant to the mandatory minimum time required for the crime of carrying a firearm or allowing a man convicted of beating the mother of his child to withdraw his plea.

Codinha still had an opportunity to dig back and review the recordings of court proceedings in Dougan’s cases, right? Wrong. Tapes of district court proceedings are destroyed after 2½ years. Codinha wouldn’t talk specifically about the Dougan investigation, citing the confidentiality of the commission’s proceedings. But he did say that trying to sort out the complaints without court tapes was like working with one hand tied behind his back.

Somewhere under lock and key at the commission is a thick report containing the findings of the investigation, including a set of recommendations. The public, however, isn’t allowed to see it. It’s possible that Codinha’s findings don’t support the commission’s decision to dismiss the complaint against Dougan. Again, the public would be none the wiser.

A challenge of this magnitude to a sitting judge is an extraordinary event. People are buzzing about it inside and outside legal circles. Yet the commission that is supposed to keep erratic judges in check lost its voice along with any opportunity to educate the public. If that’s the best the watchdogs can do, then it is time for a formal reappointment process to determine if judges are qualified to remain on the bench.

Dougan’s defenders, meanwhile, are trashing a gutsy prosecutor and sounding false alarms over judicial independence. But judicial independence is alive and well in Massachusetts where judges enjoy lifetime appointments until age 70. It’s judicial accountability that is dying a painful death.

Lawrence Harmon can be reached at harmon@globe.com.
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