Many local defense attorneys are in an uproar this week. They say that Suffolk County District Attorney Daniel Conley has crossed the line in trying to have Judge Raymond Dougan prohibited from presiding over any and all criminal trials.
"I mean, it's like the prosecution, they just say, 'Lock em up, lock em up. Get as much time as you can'," said defense attorney James Greenberg. "This is just another example of it. Go after a fair judge."
"[W]hat worries me about this is the message kind of gets out to the judicial community that if you don’t play ball with the prosecutors you can end up above the fold in the Boston Globe."Michael Keating, attorney for Judge Dougan
In and on their way to courthouses Wednesday, Greenberg and other defense attorneys across the city were heatedly objecting to the district attorney's actions against Dougan.
"I mean, we see him really fair because he does the right thing, in our opinion," Greenberg said.
For days now, as Dougan takes the bench each morning, a prosecutor has made an extraordinary motion. The prosecutor publicly asks the judge to recuse himself from hearing criminal cases because he can't be fair.
The prosecutors are under orders from Conley. And Tuesday, Conley ratcheted up the campaign. This time, while asking the judge to recuse himself, the prosecutor handed the judge a 72-page motion. It documents alleged instances of the judge's biased decisions and unlawful actions.
"This, quite frankly, is nearly an unprecedented attack on a judge who issues rulings that are lawful and within his judicial discretion — and in which the district attorney is dissatisfied," said Ed Ryan, former president of the Massachusetts Bar Association. Ryan calls it a cynical attempt to intimidate judges.
The motion claims that Dougan "continues to enter orders that are contrary to law, are made to the benefit of defendants and to the detriment to the fair and impartial administration of justice."
Conley's motion follows a front-page Boston Globe story that darkly portrays Dougan in the headline as "the judge defendants covet." The Globe also reports that Conley has initiated an investigation by the Judicial Conduct Commission, though none of the parties will confirm the report.
"I think the judge has an explanation, a good, solid explanation for any of the matters that are raised in that particular motion," said Michael Keating, the attorney for Judge Dougan. Keating says the district attorney's motion mentions 25 or so instances out of some 50,000 cases that the judge has presided over. As a judge, Dougan acted within his discretion and independence, Keating says. But despite the challenge to his reputation, "he is precluded from giving that explanation under the code of judicial conduct."
To support its claims of bias and unlawful actions, the district attorney, who declined to talk with us, points to the frequency with which the judge's decisions have been appealed by the prosecution or overturned by the Appeals Court. He leads all judges in Boston's district courts.
But defense attorney and author Harvey Silverglate says reversals and appeals don't tell the story, especially with experienced judges familiar with the problems of evidence from police.
"District attorneys get very upset when there's a judge on the bench who actually understands how the system works on the street," Silverglate said. "They call that bias, but in fact it's not. It's simply an increased level of sophistication that certain judges have about how the system works."
Among numerous actions alleged by Conley are "inciting defendants to waive their constitutional rights to a jury trial." The implication is that the judge advises defendants to select a bench trial instead that he will preside over and that will prove more favorable.
Conley also accuses the judge of unlawfully vacating guilty pleas.
"I cannot stand by while a clearly biased judge ignores the law and threatens public safety," Conley told the Boston Globe.
The stakes are high, both for Conley, and for all judges, says attorney Keating.
"Judge Dougan has been on the bench for 20 years," Keating said. "He's a veteran. He can take the heat. And he will take the heat. But that's not going to necessarily be the case with a lot of judges. A lot of judges don't have his level of experience, and what worries me about this is the message kind of gets out to the judicial community that if you don't play ball with the prosecutors you can end up above the fold in the Boston Globe. That's the problem here, in my opinion, besides the judicial independence problem."
Neither the Supreme Judicial Court nor the Judicial Conduct Commission would confirm or deny an investigation, and the district attorney's office would not comment either.
-- Here's the motion against Judge Dougan (on Scribd):
This program aired on April 20, 2011.