Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

THE MASSACHUSETTS SUPREME JUDICIAL COURT LIMITS INVESTIGATIONS BROUGHT BY FRUSTRATED PROSECUTORS

Finally, there is some judicial pushback on what my various Attorney Sam’s Take comments has been screaming about.

At least, perhaps it is a start.

Maybe.

It involves an appeal from the prosecution’s side.

It failed.

Boston’s Supreme Judicial Court, the state’s highest court, ruled last Friday that judges cannot be forced to disclose to ethics investigators what the were thinking when making their rulings.  This is being heralded as a new kind of privilege, namely, a “judicial deliberative privilege”.

 The court was apparently unanimous in the ruling in which the court found that judges must not fear that the issues, laws, and personal views that underlie their rulings will be displayed to the public.

 The court ruled:

“We conclude that although holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential, it must be accomplished without violating the protection afforded the deliberative processes of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent…In so concluding, we formally recognize a judicial deliberative privilege that guards against intrusions into such processes – a protection we have implicitly understood as necessary to the finality, integrity, and quality of judicial decisions.”


The issue was brought up to the SJC as a result of Suffolk District Attorney Daniel F. Conley’s efforts against Boston Municipal Court Judge Raymond G. Dougan.  The DA alleged that Judge Dougan violated ethical guidelines when dealing with criminal cases in Suffolk County.

 The allegations, per usual, involved the stated belief on the part of the bastion of justice, chief prosecutor of the county, that the judge sat too slanted toward the side of the defense.  You know …those presumed innocent folk.

 Funny how you don’t hear too many of these cases brought when someone thinks a judge is too biased in favor of the prosecution.

 But, I digress (again).

The commission conducted its investigation into Judge Dougan and subpoenaed notes and other materials upon which he relied when making his deicsions in criminal cases.

That’s when the legal fight actually began.  Last week’s SJC ruling may have been meant to end the issue…but one has to wonder whether it will.

 At least, in the court of public opinion which is, at least as far as this attorney who has a quarter century of experience in two states and on both sides of the aisle, is concerned.

 The court went on to say:

“The judiciary’s independence from the other branches of government and from outside influences and extraneous concerns has been one of the cornerstones of our constitutional democracy, intended to ensure that judges will be free to decide cases on the law and the facts as their best judgment dictates, without fear or favor…Protecting judges from the post hoc probing of their mental processes also ensures the integrity and quality of judicial decision-making.”

Of course, the cheif law enforcement official of Suffolk County was not about to allow the highest court of the state to disagree with him without comment. On the other hand, a bombastic attack directly, although perhaps more honest or revealatory of testicular fortitude, might be unwise. So, ever the politician, Conley blamed it on Satan’s Forces in the Justice system…namely, criminal defense attorneys.

He explained that it was the defense bar that had pushed the SJC to embrace the privilege for judges. He warned that the impact of the new rule could be felt with equal force in the Probate and Family Court or the parties in a civil lawsuit.

“If a judge ever shows racial bias, bias against female attorneys, or bias against same-sex partners in Family and Probate Court, this decision provides a powerful shield that will be used to keep him or her on the bench,” Conley wrote in a statement.

Yeah, that would be the same thing as not being “appropriately” pro-prosecution…! I am sure that, in all those cases in which judges hold against women attorneys there are routinely written judicial notes which read “God, I hate women! Why do they let them practice law?” in the margins of their notes on the oral arguments.

Conley added that “we must take very seriously how decisions such as the one issued today, when combined with legitimately reported questions of judicial conduct, can actually undermine popular support for an independent judiciary. Everyone in government, including judges, must be accountable to someone.”

Apparently, Mr. Conley forgot about the entities such as judicial review panels and appeals courts which routinely second-guess judges every day. Well, he has alot on his mind. In fact, that is probably why he may have missed the court’s ruling that the judicial conduct commission should continue its inquiry into Conley’s allegations of bias by Dougan in numerous cases, but to do so by using already available sources of information.

Attorney Sam’s Take On Who Gets To Judge The Judges
 
This is a story which is important on many levels. It underscores one of the greatest dangers facing our criminal justice system today.

Therefore, to give it short-shrift would be unwise. So I won’t.

Instead, I will tell you that we will return to the story on Monday.

I will also remind you of something that should have been included in yesterday’s blog as I ended our week-long series about last weekend’s events and our approach regarding them.

I complain about law enforcement’s approaches on many of these cases and the risks such happennings bring to YOU. There is another side of the coin, though…particularly given the repetition of mistakes by police entities.

It underscores the need you have when the finger of accusaiton is pointed at you for something you either did or did not do. You want a professional who is used to police action. In other words, as I tell you so often….if you are serious about defending yourself (and you should be), then you want to be represented by an experienced criminal defense attorney.

The difference in not doing so could change your life irreperably.

In the meantime, have a great, safe and law-abiding weekend!

 For the original story upon which today’s blog was based, please go to http://www.boston.com/metrodesk/2012/08/09/mass-high-court-what-judges-think-protected-state-and-federal-constitution/crDc18tMOTBC5Ku64mUlqN/story.html

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