Dan Conley: much worse than a sore loser

[Update here.]

Suffolk County (home to Boston, Massachusetts) District Attorney Dan Conley has filed a complaint against Boston Municipal Court Judge Raymond Dougan with the Judicial Conduct Commission. The alleged offense is not taking bribes, or sitting on cases when he had a conflict, or sexually harassing anyone– Conley alleges that Judge Dougan favors the defense. You heard it correctly.

The shocking part of this story is that the Judicial Conduct Commission did not dismiss the complaint out of hand. Judge Dougan has had to ask the Supreme Judicial Court to intervene to block the JCC from requiring him to submit to questioning about his decisions. Really, there aren’t enough adjectives for how bad this is. Judges make decisions. That’s what they do. And every decision will leave someone unhappy and feeling like the judge was biased. To my knowledge, no judge has ever been required to explain himself absent some form of misconduct like having an undisclosed interest or ex parte communication.

Conley was able to assemble a list of cases that make Judge Dougan look bad, and to the lay observer, they certainly do. The judge did release a defendant before trial with horrifying results. But for crying out loud, we don’t pig pile on a judge for locking up a defendant who is later acquitted. Should we go after judges whose convictions are later reversed on appeal? Mr. Conley may not lose any sleep over the possibility that an innocent person will be convicted when a judge sleeps through the trial, but the rest of us rely on the judicial branch to thoroughly test the prosecution’s case.

I completely understand the aggravation that Mr. Conley feels when his prosecutors lose. Trial lawyers are like racehorses; losing too frequently demoralizes them and makes them less effective. I get it. Been there, been demoralized. But does he not acknowledge the flip side? Pro-prosecution bias extends from the front door of the courthouse (I heard a jury officer apologize for courthouse security by explaining that “criminals come here for their trials”) all the way to the top. Mr. Conley’s cavalier statement (“I cannot stand by while a clearly biased judge ignores the law and threatens public safety”) suggests that judges are superfluous. If he brought the case, apparently, judges should defer to his opinion and rubber-stamp his decision. And frankly, even if most judges aren’t merely rubber-stamping cases, they still presume that the DA’s office has thoroughly investigated the case and adduced credible evidence against the defendant.

I wonder if Mr. Conley would answer honestly if asked whether any judges are biased in his favor. It’s not a secret in the trenches. ADAs don’t even need to spell it out. After I rejected the offer of a plea deal, one young ADA was hugely amused. “A trial?” he chortled. “You’re going to try this to Judge X? Don’t come here often, do you?” Trying cases to some judges is just a slower way to plead guilty. Does Mr. Conley think his assistants should ask these judges to recuse themselves?

I am disappointed in Mr. Conley for acting like an uneducated hypocritical crybaby, but my real disgust is reserved for the Judicial Conduct Commission. How many complaints of bias (mostly brought by non-lawyers who don’t understand the concept of judicial independence) has the Commission dismissed with a form letter explaining that a claim of bias, without more, cannot be investigated? If the JCC did not have the courage to tell Mr. Conley to put on his big boy underpants, I surely hope the Supreme Judicial Court will.

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.

10 thoughts on “Dan Conley: much worse than a sore loser”

  1. Lowry, welcome to the RBC!

    If we take the worst case scenario, that Dougan is a “maverick” judge who rules against the spirit of the law (as his overturn record might suggest), is it still wrong for the Commission to investigate? Is there no way of reviewing the performance of judges without damaging their independence that we hold so valuable? It seems like overturn record, being an objective metric, would be one of the better ways to review a judge’s tendencies.

  2. What sanctions against the judge could the JCC offer, assuming Conley’s complaint yields some kind of result? I agree it is ridiculous to waste the judge’s time second guessing him, but what is the worst case scenario here? It would seem the complaint alleges something so mild that one cannot expect anything but a result in kind.

  3. Pretty obviously, the DA is is “working the refs.” He’s not looking to win, just to show all the other judges that he’s prepared to damage their reputations if they rule against his office.

    1. In which case that judge should spank the heck out of that DA, and teach him a lesson. After all, if a defense attorney tried that, he/she should face repercussions.

  4. What constantly amazes me is that prosecutors are mostly honest. Even more than cops, prosecutors can do whatever they want, with no risk of consequences. The Supreme Court keeps pounding this message home. A jury is seldom a meaningful check on prosecutors’ behavior, because plea-bargaining makes a jury too risky for any defendant except maybe a few white-collar types. Despite this complete lack of accountability, prosecutors are seldom corrupt in the more vulgar sense, and usually cut very square corners. For example, they will typically decline to prosecute a case with insufficient evidence, even though they could still get the defendant to plea-bargain to something.

    There is one exception to this rule, of course. Elected prosecutors are not free to do anything that would put the “soft on crime” label on them. This means that they can never afford to piss off the police brass or union, and must posture like gorillas for any case that gets into the newspapers.

    1. Actually, here in Durham NC we’ve tossed out two District Attorneys in a row (Nifong and Cline), and not for being too soft. Hope we don’t need to go after a third.

      1. “Actually, here in Durham NC we’ve tossed out two District Attorneys in a row (Nifong and Cline), and not for being too soft. Hope we don’t need to go after a third.”

        Nifong was tossed for the Duke Lacrosse case, wasn’t he? That’s a matter of trying to scr*w over people with connections, money, lawyers and publicity. If a DA pulled far, far worse on people who had none of the above, the defendants would have pled, and been sent to prison.

  5. Suppose a judge really is misapplying the law and misjudging the facts — not just occasionally, but regularly. And not randomly, but in a way that consistently harms the public’s interest in public safety? Does judicial independence require that there be no safeguard to prevent repeated error? (Sorry to the extra rape victims, I guess…). Keep in mind that usually the prosecutor doesn’t even get to appeal the judge’s error — if the judge acquits the defendant himself, or hamstrings the Commonwealth’s case such that the jury wrongly acquits, then the Commonwealth can’t appeal, no matter how wrong the judge was. Seems like the only way to prevent error might be to address it ahead of time then…

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