SJC seeks to halt ‘judge shopping’ in OUI cases

Probe finds nearly 100 percent acquittal rates in certain courts

Judges in some Massachusetts courts, particularly in Worcester County, acquit nearly all of the drunken driving defendants who waive their right to a jury trial, according to a year-long study of the court system that recommends curbing “what is popularly referred to as `judge shopping.’’’

The study by a special counsel appointed by the Supreme Judicial Court in the wake of a Globe Spotlight series also recommended better training for judges on how to handle scientific evidence in all criminal cases.

Special Counsel Jack Cinquegrana, a former federal and state prosecutor, found that when drunken driving cases go to trial, juries acquit 58 percent of the time, while judges acquit 86 percent of the time. Those numbers were very similar to the Spotlight Team’s findings a year ago.


Cinquegrana’s 148-page report recommended caution in interpreting the statistics and said nothing in the report suggests that the disparity is “because of any judicial misconduct or any corrupt personal relationship between a judge and a defense attorney.”

Get Fast Forward in your inbox:
Forget yesterday's news. Get what you need today in this early-morning email.
Thank you for signing up! Sign up for more newsletters here

Still, the study said, the “record of near-100 % acquittals and high [jury trial] waiver rates in certain courts, and before certain judges, creates an appearance of leniency.”

The study recommends four remedies, two of which would need legislative approval. One law would make it harder for defense attorneys to argue that their clients might have been intoxicated at the time they took a Breathalyzer test but were not when they were driving because the alcohol had not entered their bloodstream yet. Another law would close a legal loophole that enables drivers to avoid the penalty for refusing a breath test, a long license suspension, if they are later acquitted of drunken driving.

Cinquegrana noted that he was not given subpoena power by the SJC and wrote, “we have not investigated the relationship between any particular lawyer and any particular judge.” It is unclear whether the Massachusetts Commission on Judicial Conduct is conducting its own inquiry.

The Globe reported on several friendships between judges and defense attorneys who appeared before them, including one judge who shared Red Sox season tickets with a prominent OUI defense attorney, and another who tried a case involving a lawyer with whom he was friendly – after he had been forbidden to do so by his superiors.


The SJC announced its confidential review almost precisely a year after the Globe reported that judges in district courts were acquitting drunk drivers at a rate about 30 percentage points higher than juries.

Judges in Suffolk County, the Globe found, were acquitting defendants 88 percent of the time in operating-under-the-influence cases. Plymouth County judges ruled against prosecutors 86 percent of the time. Defendants were acquitted often despite powerful evidence of impairment, the Globe found.

National specialists in drunken driving prosecutions said that degree of leniency was virtually unsurpassed in the United States.

The state’s highest court said it wanted the probe to determine whether the acquittal rate in drunken driving trials before judges was unusual and excessive. The court called the investigation an imperative step to assure the integrity of the judicial branch of state government.

Cinquegrana and his law firm of Choate, Hall & Stewart LLP, who performed their work without compensation, evaluated court data from 56,966 cases handled from Jan. 1, 2008, to Sept. 30, 2011. They reviewed police reports and docket sheets for hundreds of cases, and listened to tape recordings of 50 OUI trials. They also interviewed every district attorney in the state, eight defense attorneys who handle OUI cases, and numerous judges


Cinquegrana’s report found, as the Globe did, that the vast majority of cases of operating under the influence of alcohol never go to trial. Some 73 percent of OUI cases were resolved by a plea of guilty or an admission to sufficient facts, which typically results in cases being ``continued without a finding.’’

With the help of a consulting firm that specializes in statistical analysis, Cinquegrana focused on the remaining 17 percent of cases that go to trial before a jury or a judge.

District Court Chief Justice Lynda M. Connolly and other judges told the Globe last year that the conviction rate was low because prosecutors, sensitive to public opinion, were reluctant to dismiss flawed OUI cases that lack strong evidence.

Cinquegrana was asked to gather facts, not to impose discipline.

The Globe’s 2011 report noted that there is no national database for state-by-state acquittal rates for drunken driving 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,” Warren Diepraam, a nationally recognized specialist on drunken driving prosecutions who is based in Texas, told the newspaper last year.

Several district court judges, whose records were reviewed by the Globe, were regularly acquitting drunken driving defendants more than 90 percent of the time.

After the Spotlight Team report and the SJC’s decision to launch its inquiry, there appeared to new momentum toward 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 was 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.

But the bill has gone nowhere.

The Globe’s reporting detailed how savvy defense lawyers advise clients to waive their right to a jury trial and opt for a bench trial, where a judge alone decides. In some counties, that led to two or three times more trials in front of judges than juries. Lawyers can sometimes maneuver, through repeated postponement of hearings, to win assignment of their case to one of the judges with a track record of leniency.

Cinquegrana’s report said that the judiciary itself should consider ways to diminish opportunities for judge shopping, including by making it harder for defendants to choose to have a bench trial at the last minute.

“We agree that this issue, which concerns more than OUI cases, merits careful consideration,” the SJC said in a statement. The high court said it will form a group of judges to study the matter and make recommendations by March 30 next year.

The pattern of rulings from the bench had led some police officers to lose enthusiasm for aggressive drunken driving enforcement. By last year, state drunken driving arrests were down 16 percent since 2008, a trend no doubt driven in part by reduced police staffing levels, but also, officials said, by a resignation among police about weak backup in the courtroom to street-level enforcement.

Commenting on the Spotlight findings, prosecutors, police, and anti-drunken-driving advocates said the scales of justice for one of the most common crimes prosecuted in Massachusetts courtrooms had been tipped dramatically - and dangerously - out of balance.

“We absolutely are not wrong 85 and 90 percent of the time,” Northborough Police Chief Mark K. Leahy, president of the Massachusetts Chiefs of Police Association, said last year. “There are always going to be some lousy cases, but it doesn’t begin to approach a majority. ... I don’t understand how any of us who are sworn to uphold the constitution of the Commonwealth and are sworn in our duties to try to make this a safe place can have a hand in an 85 to 90 percent acquittal rate.”