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Adrian Walker

Judging the judge

Judges and lawyers routinely fail to see eye to eye, but there’s never been a legal battle quite like the current drama of Conley v. Dougan.

Conley would be Dan Conley, the Suffolk district attorney. And his antagonist is Raymond Dougan, a Boston Municipal Court judge whose nickname - “Judge Let him Go’’ - sheds light on how he’s viewed in some corners of the legal community.

This simmering drama burst into full view with the recent investigation of Dougan by the Commission on Judicial Conduct. Spurred by Conley’s complaints, the disciplinary panel is taking a hard look at what Conley has described as Dougan’s antiprosecution bias.

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Now Dougan is fighting back, asking the Supreme Judicial Court to quash an effort that would force him to explain his thinking in many cases in which his actions have been questioned. Investigators also want his notebooks.

Dougan holds several distinctions, and most judges would want no part of any of them. He is, by a wide margin, the Municipal Court judge most frequently reversed on appeal. He is a judge who is occasionally prone, attorneys say, to disregarding laws or precedents he finds offensive. He can be temperamental.

Friction between judges and lawyers is nothing unusual. Some lawyers I know liken it to skirmishes between athletes and referees. But it is absurd to think that prosecutors can, or should, go to war against a judge simply because they don’t like his rulings. A judge isn’t obliged to side with prosecutors - or defense lawyers.

I wanted to ask Conley what exactly constitutes “judicial bias’’ in his mind. Unfortunately, he said Friday he no longer comments on the proceeding involving Dougan. But on the many occasions that he has commented, he has spoken at length.

“I’ve known since shortly after arriving here that Judge Dougan presented a problem for us,’’ Conley told the Globe last year. For the same article, he said of John Adams, the father of our court system, “When he envisioned an independent judiciary, he didn’t envision Judge Dougan.’’ Perhaps, but I don’t think he envisioned prosecutorial coups against judges they don’t like, either.

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Nancy Gertner, a retired US judge now teaching at Harvard Law School, has been a vociferous supporter of Dougan. “Here’s the thing: Judges are already held accountable,’’ she said. “They’re held accountable on appeal. This is an attack on someone whose opinions you disagree with.’’

She also made reference to an independent judiciary. She believes this investigation is bad news for independent-minded judges. “The idea that this will have no bearing on judicial independence is absurd,’’ she said. “I’ve literally never heard of a case where a judge is being investigated for the content of his decisions.’’

Judging the judges has always been a problem, especially in a state where judges serve until age 70. Dougan has heard thousands of cases since he went on the bench in 1991. How many cases constitute a pattern of bias? Six? Twelve? A handful of anecdotes might suggest someone is a bad judge, but there could be 10 other cases that would show just the opposite. I’m wary of judging a judge’s career based on a few cases considered outrageous.

The latest argument floated by Conley and his supporters is that this is an issue of accountability, that the Commission on Judicial Conduct might as well shut down if it is not able to examine documents and depose judges. But in fact, the commission mostly investigates cases of misconduct - intemperate behavior in court (think Maria Lopez), conflicts of interest, and the like. This is completely different.

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If Raymond Dougan is guilty of actual misconduct, the commission should remove him immediately. But if bias is just another word for disagreement - as it so often is - then this inquiry worries me a lot more than Judge Dougan does.


Adrian Walker is a Globe columnist. He can be reached at walker@globe.com. Follow him on Twitter at Adrian_Walker.