Mark and Steve had some entirely appropriate concerns about my defense of Judge Dougan. Mark wrote: “Wait. He acquitted someone of DUI despite a BAC twice the legal limit because the guy was an alien and would have faced deportation, and Dougan didn’t think that was fair? You can call that lots of thinks, but it ain’t judging. Would you have been similarly outraged if the public defender had “papered” one of Boston’s fine hanging judges for convicting someone in the absence of evidence? If not, what’s the difference?”
And then he said I should post my response. So here it is (with my bad language self-censored):
I agree. He shouldn’t have done that. But he did it honestly and on the record so the DA could appeal. The DA did and the appeals court reversed it. And that’s the answer to your question: the public defender can’t make the same case against a hangin’ judge because those bastards aren’t honest. Dougan could have just said that having heard the evidence, he did not believe the BAC was accurate. That’s what the bad pro-prosecution judges do– like the judges who hear evidence that there was a wall between the cop and what he claimed he saw, who shrug and say the cop said he saw it and I believe him. Virtually no chance of reversal on appeal. Defense lawyers call it getting @#$%ed on the facts (to avoid appellate review). Conley would not have gone after Dougan if the bulleted cases (from the Globe article) were the only ones. They are trivial in number and easily reversed. No, it’s Dougan’s willingness to believe that cops can lie, and to require prosecutors to prove all the elements of their cases that got Conley in a snit.
Look, back in the busing era, a black man was chased by a white mob in East Boston. He made it into his house, and the mob began throwing bottles through windows. The man’s wife and kids were lying on the bathroom floor. The man called the police and then got an illegal handgun, went outside and waved it in the air to disperse the mob. He was charged with carrying an unlicensed handgun. Mandatory one year in jail. The jury convicted. The judge JNOV’ed the case. I applaud him.
I don’t know. There isn’t a judge out there who hasn’t blown off the law to get to the result s/he wants. At least Dougan is honest.