During 2012 year and early 2013 Massachusetts relieved a perfect judicial storm that was caused by Suffolk DA Dan Conley filing with the Commission on Judicial Conduct a complaint against Boston Municipal Court Judge Raymond Dougan and accusing him of anti-prosecutorial bias. The conflict was covered by the Boston Globe in dozen of articles - "Suffolk DA files report alleging jurist’s bias", "Judge asks Supreme Judicial Court to block inquiry in his deliberations", "Boston judge got free legal services from firm", "Judge Dougan received more than $550,000 in free legal aid to fight bias charges" -as well as in legal publications mostly defending the judge like, for example, this one "Privilege Precludes Asking: What was the Judge Thinking"
I do not want to focus on judge Dougan, especially, since he, as his spokesman stated, quickly approaching retirement age (70 years in Massachusetts) - even, in my opinion, the reason is not justified. According to Boston Globe research "A Globe review showed that, overall, prosecutors challenged Dougan’s decisions more often than those of any other sitting judge in the Boston Municipal Court system. In addition, appeals courts have reversed or modified Dougan’s decisions more than those of any other sitting judge since the mid-1990's" - even if Dougan is not corrupt, he is simply a bad judge. Either way he should not hold the position he has. In our society we do not license any professional to practice his profession without sufficient skills - why should a bad judge continue holding his important and powerful place if his cannot perform his duties up to a standard?
What, I think, was truly lost in this case an opportunity to define judicial accountability and revive public's confidence in unbiased judiciary. Massachusetts and American Constitutions allow us to question actions of our government and judiciary is one branch of it. When Constitution talks about "judicial independence" it does not state that judges are not accountable to anyone, but to their conscious and/or to God. Granted, different people understand independence differently, but in this case it is quite clear that "judicial independence" means that no other powerful force can influence judge to abandon impartiality to the parties of the case in front of him or her and provide preferential treatment to either side because of possible retaliation or incentive. In case of judge Dougan, it was not up to DA to subpoena, documents related to judge's deliberation process. In fact, the complaint was submitted to the Commission on Judicial Conduct that in its turn decided first to accept it and then to appoint a special counsel to investigate the allegations. How can the Commission decide on the merits of the bias complaint and special counsel investigate whether bias played role in judges decision's if they do not know how judge derive to his decisions, i.e. deliberation process?
In her article former judge Nancy Gertner, applauded the Supreme Judicial Court (SJC) decision to bar the subpoena issued by the special counsel to produce judge's notes, records and other documents related to some of his decisions. She wrote
A judicial deliberative privilege was essential to that end. The privilege they announced was absolute, covering a “judge’s mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other non‐public materials.” It did not bar an inquiry into the judge’s work, what was said in open court or related in decisions. It only banned an inquiry into what was in the judge’s mind when she made her (sic!) decision.
Judge Gertner obviously is more concerns with judge Dougan losing independence by reveling his thoughts than by accepting $550,000 pro bono work from the State largest law firm. It is somewhat strange logic, considering that last time US Supreme Court was deciding on potential conflict between accepting $3,000,000 donations to the West Virginia judge's campaign to become State Supreme Court justice and later ruling in favor of the donor the court found that "In all the circumstances of this case, due process requires recusal". Furthermore, the judge would reveal his thoughts not in public court hearing, but to a special counsel in confidential investigation. Finally, why does a judge, who is an attorney, requires so much legal help not to defend himself in court, but to provide some explanation to the Commission? Who can then afford to fight for his/her rights in court, considering that justice should be blind and judge should be impartial to the income of parties? I wonder, whether judge Gertner is concerned that if one judge receive so much pro bono work it send a signal to other judges - if you are ever in trouble you can count on us, attorneys, so better be nice to us if you want to have pro bono legal help when you need it.
Judge Gertner went even further than simply commenting on the SJC decision, but in the Globe article she berated DA Dan Conley for being unsatisfied with secret decision of the Commission to dismiss his complain without disclosing recommendation of the special counsel who presented 1000 pages report to the Commission. In fact, she should be aware of the ongoing discussion among legal scholars and professionals about judicial independence.
It is equally important that independent judges discharge their duties with competence, integrity and impartiality. Public trust and confidence in the judiciary institutionally requires respect for the individuals who are jurists. Consequently, judges are held to the highest standards of professional and personal conduct in our society. Those standards require behavior both on and off the bench that would neither demean the judge's own stature nor reflect adversely on the integrity of the judiciary.
The drafters' selection of impeachment for the United States Constitution as the only method for removing a federal judge was attributed by Alexander Hamilton to the Framers' commitment to judicial independence:
The precautions for [judges'] responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives and tried by the Senate; and, if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.
Quoted from Hon. Randy J. Holland and Cynthia Gray, JUDICIAL DISCIPLINE: INDEPENDENCE WITH ACCOUNTABILITY, Delaware Bar Foundation, Delaware Lawyer, Summer, 2011
Clearly, judge Dougan is hardly capable of discharging his "duties with competence, integrity and impartiality".
Similarly, Monroe H. Freedman, Lichtenstein Distinguished Professor of Law, Hofstra University, presented at the A SYMPOSIUM ON JUDICIAL INDEPENDENCE: THE THREAT TO JUDICIAL INDEPENDENCE BY CRITICISM OF JUDGES - A PROPOSED SOLUTION TO THE REAL PROBLEM his views:
I. Lawyers' Criticism of Judges Is Desirable and Constitutionally Protected
The problem is not that too many lawyers are publicly criticizing judges. Unfortunately, too few lawyers are willing to do so, even when a judge has committed serious ethical violations and should be held accountable.
For example, the New York State Bar Association recently debated a proposal to amend the state's ethical rules to require lawyers to report serious misconduct of judges.
Here is how professor Freedman quoting the most respected American jurists sees judges:
Moreover, judges are not "anointed priests" entitled to special protection from the public clamor of democratic society. n10 The law gives judges and the institutional reputation of courts "no greater [*731] immunity from criticism than other persons or institutions." n11 Judges, after all, are not "flabby creatures." n13 Rather, they are expected to be "[people] of fortitude, able to thrive in a hardy climate." n14
n10 Bridges v. California, 314 U.S. 252, 292 (1941) (Frankfurter, J., dissenting)
n11. Id. at 289
n13. United States v. Morgan, 313 U.S. 409, 421 (1941).
n14. Craig v. Harney, 331 U.S. 367, 376 (1947).
It should not come as a surprise that nova days as every government branch is trying to grab more power for itself it claims privileges, exemptions and exceptions to circumvent the Constitutions the government supposed to uphold as the basis of Democracy to preserve rights of the people -citizens of this Country and States. It looks more that Constitution is seen by government insiders as created to preserve rights for a few and obedience for the rest of the crowd. As such judiciary holds a position of high priests of justice who keep the flock obedient and content.
