EMBATTLED JUDGE Raymond G. Dougan should be eager to explain himself to the state Commission on Judicial Conduct. Instead, he is challenging the scope of the subpoena from the state agency responsible for investigating complaints of judicial wrongdoing. In the interest of justice, he should cooperate fully with the investigation.
Last year, Suffolk County District Attorney Daniel Conley alleged in a lengthy filing that Dougan’s penchant for leniency in Boston Municipal Court had spilled over into reflexive bias against the police and prosecution. Dougan’s supporters counter that Conley is on a witch hunt. They believe the subpoena, which covers the judge’s notes and bench books, greatly exceeds the demands of judicial discipline. And they don’t like any meddling into a judge’s deliberative process.
Yet the subpoena comes not from Conley but an agent of the state judiciary, which needs to be able to police its members. On further inspection, Dougan’s decisions might turn out to be consistent with his good-faith interpretation of the law. Or they might point to an utter lack of impartiality and disregard for the law. That’s what a special counsel appointed by the Supreme Judicial Court is trying to determine.
But to get to the bottom of this case, the special counsel will need some latitude to explore Dougan’s reasoning process along with the judge’s relevant notes and documents. It hardly seems outrageous or chilling to ask a judge to justify his or her decisions in a confidential session before the Commission on Judicial Conduct. And the law that established the commission states that it is entitled to compel “the production of papers, books, accounts, electronic recordings’’ or “any other relevant evidence or testimony’’ from judges.
Dougan’s supporters have urged the Supreme Judicial Court to conclude that judges in Massachusetts enjoy an absolute privilege that would protect them from queries about their thought processes. But such a blanket privilege would seem unnecessary to ensure judicial independence in a state where judges sit for decades without facing elections or reappointment hearings.
Appeals courts have reversed or modified Dougan’s decisions more often than those of any other judge since the mid-1990s. That process offers some protection against faulty legal reasoning. But there are other concerns that wouldn’t be resolved on appeal, such as the allegation that Dougan encourages defendants to give up their rights to jury trials in order to get kinder treatment from him.
While the complaint against Dougan originates with a district attorney, it is easy to imagine another judge being accused of a pattern of unfairly favoring the prosecution, or one side or the other in civil matters. The Commission on Judicial Conduct needs the latitude to look into such complaints. By all appearances, the special counsel is trying to conduct a full and fair investigation. Judge Dougan’s stance isn’t making that job any easier.