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A federal judge has exploded in anger at defense attorneys asking him to step down from the coming corruption trial of former Probation Commissioner John O'Brien and two other defendants.
The blowup caps weeks of argument by defense attorneys questioning whether Judge F. Dennis Saylor IV can command public confidence in his impartiality.
In the usually staid and stately proceedings of federal court, the scream of a judge is the rarest of conduct.
"I have never heard something as loud as that."David Frank, managing editor of Massachusetts Lawyers Weekly
“I have heard judges raise their voice. I've heard judges get tense. I have never heard something as loud as that,” said David Frank, managing editor of Massachusetts Lawyers Weekly. “It's not something you really ever hear in a federal courthouse.”
Federal courts prohibit both cameras and microphones, so it’s impossible to do justice to the volume of the scream or the intensity of the judge's outbursts.
In earlier hearings and rulings, Saylor had proven brittle in denying the defense motion that he step down. The defense had cited his professional connections to Paul Ware, and to Ware's deputy, who both conducted an independent investigation into the Probation Department, which called its hiring practices corrupt.
In the hearing Monday on the renewed motion for recusal, attorneys were addressing Saylor with new facts and newly discovered associations that might create the appearance of personal bias.
Take Saylor's friend and fellow federal judge, Timothy Hillman. Hillman has acknowledged that he once sponsored some 22 candidates for promotion as probation officers. The defense plans to call him as a witness. And remember, the government alleges the Probation Department was the den of corrupt and rigged hiring schemes.
“The argument that the defense is going to hammer home at this trial,” Frank said, “is that the culture was such that judges were involved in this, chief law enforcement officers like Martha Coakley, Scott Harshbarger, Mike Sullivan who was then Plymouth County DA, that they were all doing it.”
And because Saylor's associates were doing it, the defense argued, that provided permission, an imprimatur for the defendants to do the same thing. They were part of the same system, and by extension, they had no intent to defraud. Therefore, says the defense, it's unfair to charge and punish the defendants and not the others.
Which circles back to the judge himself, said attorney Harvey Silverglate, author of “Three Felonies A Day: How the Feds Target the Innocent.” He's watching the case from outside.
“The issue, really, is whether Judge Saylor is going to be able to appear to be unbiased in the case when a friend of his is somebody who has done something very much like what the defendants are charged with doing,” Silverglate said.
A Personal Affront
Though it may be dangerous territory, the judge has shown no inclination to avoid it. It's reminiscent of Judge Richard Stearns, who denied motions to recuse him from presiding over the trial of James "Whitey" Bulger, and had to be removed by the federal Appeals Court.
Saylor shows signs he too is taking this as a personal affront.
At the beginning of Monday’s hearing, he once again attacked the motives of defense attorneys.
When soft-spoken defense attorney Stellio Sinnis quietly objected, interrupting the judge, Saylor snapped.
"Mr. Sinnis," Saylor screamed, "do not interrupt me!"
Stunned by the 0 to 60 acceleration of anger, the courtroom heard the judge accuse Sinnis of being "emotional" and not being able to control his emotions.
“Well, let me put it this way,” Silverglate said. “When a defense attorney manages to elicit a volcanic reaction from a judge and the defense attorney doesn't do anything that can vaguely be considered contemptuous then you really do have to wonder how much invested in the case and sitting on the case the judge is.”
The last time a judge screamed like Saylor was in state court. That was caught on camera, and it led to a misconduct investigation of Judge Maria Lopez and her resignation.
Responding to Saylor's conduct Monday, defense attorney John Amabile rose, saying, "Your Honor is so entwined in this, you have lost your ability to conduct these proceedings in a fair manner."
He continued briefly until the judge snapped.
"Mr. Amabile, I said I did not want to hear about this,” he said. “Sit down."
Amabile requested he be heard on the facts.
"Thank you,” the judge said. “Sit down."
"I will sit down,” Amabile said. “But I want the record to reflect I haven't been allowed to make my argument."
“Sit down,” the judge said.
Amabile had drawn out Saylor, who had in turn brought more, not less, attention to himself and raised more appearance problems, according to Silverglate.
“The case is so wound up in these personal judgments and personal relationships that this is just dangerous territory for Judge Saylor to be venturing out into,” Silverglate said.
Saylor said he would consider the renewed request that he step down. Defense attorneys say it's likely they'll have to go before the Court of Appeals.
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