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.