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Nancy Gertner and Richard A. Gargiulo

Judging the judges in Mass.: Protect independence

 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.

Suffolk District Attorney Dan Conley has decried the decision by the Commission on Judicial Conduct to dismiss his complaint charging Boston Municipal Court Judge Raymond Dougan of anti-prosecution bias. Transparency, Conley insisted, had been undermined because the judicial disciplinary process was confidential. Worse, he said, accountability had been compromised, apparently because the outcome was not what he wanted.

Conley’s remarks were irresponsible. It is one thing for the DA to challenge a judge based on nine years of decisions he did not like, which led to subpoenas of the judge’s diaries, many years after the fact. It is quite another to excoriate the Commission on Judicial Conduct, and by implication, the Supreme Judicial Court.

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As for transparency, Conley well knows that judicial misconduct allegations are confidential unless the commission finds that they have merit, at which point there are public charges, which are publicly litigated. The reputations of those who are cleared — a judge, a lawyer, a citizen— are not supposed to be besmirched by baseless accusations. What Conley is saying is that judges should somehow be protected less than all other players in the justice system, precisely the opposite of what judicial independence requires.

As for accountability, the judge went through an extensive investigation of his work as a result of Conley’s complaint. He was asked to justify countless decisions he had made, years and years after the fact.

There is more than a little irony here for these accusations to come from a prosecutor. When a DA charges someone with an offense requiring a mandatory minimum sentence, for example, there is never public accountability, let alone transparency. The DA’s decisions are always confidential — there’s no review of their legitimacy, whether they may be racially biased, excessive, or politically motivated. And there certainly isn’t any appeal of those decisions. Conley would insist on this protection, precisely to preserve the prosecutor’s ability to function independently. Judicial independence, to Conley, is another matter.

But there is something more troubling. Conley monitored a judge just because he disagreed with his decisions and with the way he exercised his discretion, not because there was any evidence of judicial misconduct. It was not enough for the DA to appeal the decisions he didn’t like. He wanted to do more. But the so-called “repeat players’’ in the system — prosecutors and police — have a unique responsibility, which the Supreme Judicial Court described in rejecting the extraordinary subpoena of the judge’s personal notes and diaries: While “any disgruntled litigant” could bring a complaint, “the risk is greater in the case of the district attorney,” a litigant who was in a unique position to “exert the pressure that would come from probing into deliberative materials.” District attorneys, after all, have a state monopoly on prosecutions and from that vantage point, can claim to keep track of the judges before whom they appear. Their criticisms are all too often accepted by the press without examination; their accusations ring as banner headlines. The judge is in no position to respond publicly because of the canons of judicial ethics.

The risk, and it is a substantial one, is that the pressures on a judge will go only in one direction — to be more and more punitive, to believe police officers rather than civilians no matter what, to accept the prosecutor’s sentencing recommendations — all in order to escape public criticism, much less a punishing two-and-half-year judicial misconduct proceeding.

What Conley is saying is that judges should somehow be protected less than all other players in the justice system.

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Of course, the work of the judiciary should be examined carefully. Of course, judges should be accountable to an appellate court, and subject to discipline where appropriate. Judges are entrusted with extraordinary power. But we don’t want judges to be the prosecutor’s agent; we want them to be independent. We want them to be free to do justice, in the words of the oath office, “without fear or favor.’’ That’s what our Constitution demands.

Make no mistake about it. Judicial independence is fragile, easily undermined by baseless accusations and the intemperate remarks of a public official.

Nancy Gertner is a retired US district court judge. Richard A. Gargiulo, former first assistant district attorney for Middlesex County, is a defense attorney.
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