More on Judge Dougan

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.

Author: Lowry Heussler

Lowry Heussler is a lawyer from Cambridge, Massachusetts. Having participated in the RBC as a guest-blogger, she made it official in 2012. Her most important contribution to the field of public policy to date was her 1994 instruction to Mark Kleiman, "Read Ann Landers every day. You need to learn about real people." Her essay on the 2009 arrest of Henry Louis Gates went viral and brought about one of her proudest moments, being described as "just another twit along the lines of Sharpton, Jackson, Gates, etc." (Small Dead Animals Blog). Currently serving as General Counsel to BOTEC Analysis Corp., she has been a public housing lawyer, a prosecutor for the Board of Registration in Medicine, a large-firm associate and a small-firm partner. She serves as a board member for NEADS, Dogs for Deaf and Disabled Americans, a charity that trains service dogs to increase independence for people with disabilities.

13 thoughts on “More on Judge Dougan”

  1. Agreed. And state courts are courts of law and equity, both, so there’s really nothing wrong with a judge ruling that the literal application of the law in a particular case would lead to an unjust or inequitable result. It’s a power that can be abused, but that’s what appellate review for abuse of discretion is for.

    In a civil law system it would be different. But that’s not the system we have.

    1. Ben: In a civil law system it would be different. But that’s not the system we have.

      It’s not necessarily all that different in a civil law system (especially in practice). See the Radbruch Formula, for example.

      There’s also the Dutch criminal code, which does not have minimum sentences at all, meaning that in theory courts could punish even murder with just a fine. Criminal court judges — the Netherlands do not have juries or lay justices — are being given wide discretion in the interest of justice. (There have been recent attempts to introduce minimum sentences in some cases, especially repeat offenders, a constraint that Dutch judges do not seem to like at all.)

      Aside from that, most civil law systems give the courts plenty of ways to avoid an unjust outcome. For instance, the Daschner case is a fairly recent example of a civil court system letting a defendant get away with a very mild slap on the wrist for something that objectively should have carried a minimum prison sentence of six months because the court very clearly found that applying the letter of the law would have led to unjust results.

    2. Thank you for mentioning “equity.” So many people would like to think it no longer exists in the law.

  2. If the door to this kind of attack is left open, then similar challenges to pro-prosecution judges are probably inevitable, despite the problems noted. This hardly seems a constructive thing for the legal system.

    1. Actually, a system where judges were held accountable (in private, by other judges) for illegal behavior might be an improvement over the current situation of absolutely unlimited immunity for anything save bribery: if it were done even-handedly.

    2. It seems plausible, though, that the deck is too far stacked for defense lawyers to make similar challenges against pro-prosecution judges. Any individual lawyer wouldn’t dare (remember, they still have to try cases in front of they judge they’ve accused, and the judge’s colleagues, while the challenge wends its way through process), and there’s really no large pro-defendant institution like the DA’s office that a judge would have to think twice about offending.

      (To add some limite anecdote, my experience with prosecutors has been that they tend to way too sure they’re right, so that even technicalities like the purported victim saying no crime occurred will not deter them from thinking a suspect guilty.)

    3. Actually, I’m with Mark. We live in a country in which – was it the DOJ, actually? – some prominent lawyer type — or was it a judge? just let off a bunch of prosecutors who didn’t hand over exculpatory evidence because — wait for it — the judge hadn’t ordered them to!!!! That really is a disgrace.

      The house is on fire, people. We are in danger of losing the rule of law, on both sides of this.

      At least in Pakistan, when lawyers don’t like something, they march. What do we do here?

  3. “There isn’t a judge out there who hasn’t blown off the law to get the results s/he wants. At least Dougan is honest.”

    True. But that’s the problem. Honesty, here, is a bad policy. Most judges–Nino Scalia excepted–are obsessed with the legitimacy of the judiciary: a so-called “judicial temperament.” They have good reason for this. Adjudication, as Bismarck observed of legislation, is much like sausage: far more appetizing if not closely examined. Judges, therefore, are in the business of concealing the motives behind their decision-making. Adjudication is inherently hypocritical, and has to be, if it is to remain legitimate.

    There is a bit of dialectic here. Sometimes, the constraint of sounding like a judge actually affects the outcome. And often enough, the judges don’t give a shit about who wins, and are willing to follow the overt rules as they understand them, for want of a preference on their part. This often happens when the litigants are arguing over pots of money. But this indifference is rare in criminal cases. More often, criminal courts just follow Dershowitz’s thirteen commandments, which basically boil down to three: 1.) Almost all defendants are guilty, and 2.) Most of the exceptions to rule #1 should be ignored: e.g., the defendant is a general scuzzball, or the case is politically charged, and 3.) to preserve the dignity of the court, prosecutors should not act overtly like the court is a rubber stamp.

  4. Have to admit my first thought was, “Whoa, this is the guy who tried Obama’s uncle?”

    1. You’re welcome. You have to admit, though, that it sure sounds like the case of Obama’s uncle, who was given back his (illegally obtained) driver’s license after a DUI conviction, because it might interfer with his getting to work (At a liquor store!) while hiding out from that deportation order he’s been in violation of for years.

      Ah, the delights of living in a nation with a firm committment to the rule of law, and no favoritism towards relatives of ‘important’ people… Good to know that if we smuggled my wife’s brothers into the country, they would get equal consideration.

  5. Ebenezer: “Most judges–Nino Scalia excepted–are obsessed with the legitimacy of the judiciary: a so-called “judicial temperament.” ”

    After Bush v. Gore, it’s clear that most GOP justices are not that concerned. And with the recent temper tantrum by that Fifth Circuit sh*thead, it’s far from clear that *any* GOP justices care at all about it. They just want public lip service paid.

Comments are closed.