In Massachusetts Ruling, Judges Assert Their Own Privilege

In a fierce battle between prosecutors, defense lawyers, and judges, guess who won? That's right, the judiciary.

John Adams (Library of Congress)

Weighing in on a dispute that has rocked and roiled the Bay State's legal community, the Massachusetts Supreme Judicial Court ruled unanimously Thursday that state judges in the Commonwealth have a "judicial deliberative privilege" that substantially protects them from having to testify in ethics investigations involving cases over which they have presided. The case was seen by advocates on both sides as a referendum on judicial independence in the age of open government and politicized criminal dockets.

Massachusetts is not the first state to recognize such protections. And no decision by a state court is binding upon the courts of another state. But Thursday's decision out of Boston is nonetheless notable for several reasons. First, it comes at a time when judges all over the country are under political attack by partisans critical of particular rulings -- or even of the right of courts to exist at all. Just this spring, remember, Republican presidential candidates were threatening to subpoena federal judges to Capitol Hill.

The ruling also is significant because it is a rare example of judges explicitly defending the workings of the judiciary against overzealous intrusion by the executive branch. Finally, the ruling is interesting as a reminder that our judicial systems are designed to weed out bad decisions, or even biased ones, primarily by subjecting those rulings to layers of appeal. No matter where they are, no matter what the jurisdiction, prosecutors almost always win their criminal cases. Here, when they started losing, they cried foul.


The ruling, in a case styled In the Matter of the Enforcement of a Subpoena, is good news for Judge Raymond G. Dougan, a veteran jurist in Boston's Municipal Court, who is under investigation (by a local prosecutor, following this Boston Globe report) for being biased in favor of criminal defendants. ("Judge Let Me Go" Dougan is just one of the many ways in which the Globe, quoting criminal defendants, described the judge's "pattern of rejecting police testimony while extending second chances to criminals...")

It was Suffolk County District Attorney Daniel F. Conley, a prosecutor with daily business in Judge Dougan's court, who first pushed the issue. In 2010, frustrated with the judge's rulings and concomitant refusals to recuse himself from criminal cases, Conley filed a bias complaint with the state's Judicial Conduct Commission. In turn, the Commission recruited a seasoned attorney named J. William Codinha, himself a former prosecutor, to serve as "special counsel" and lead the investigation into Judge Dougan's work.

Codinha's investigation -- at least as it related to information from Judge Dougan -- didn't get very far. Last December, Codinha sent a subpoena seeking from the judge "any notebooks, bench books, diaries, recordation or other written recollections of any of the cases described in the complaint." Codinha wanted to know the rationale and the reasoning behind Judge Dougan's decisions in dozens of old cases, including those described in detail in the 2011 Globe article. The judge moved to quash the subpoena.

Instantly, the Dougan dispute became a symbol for all the ancient enmities that surround any state's criminal justice system. Suddenly, it was Prosecutors v. Defense Attorneys and Prosecutors v. Judges. Judges like Dougan must be held accountable, the prosecutors said. Leave the judges alone, defense attorneys said. Judges get corrected every day upon appellate review, said a group of retired federal and state judges who filed a brief asking the state's supreme court to protect Dougan from Codinha's questions.


Citing federal and state precedent, and quoting Massachusetts' own John Adams, the Supreme Judicial Court ruled that Judge Dougan will not have to share with Codinha and company any information relating to the judge's "mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic material." The court ruled that "the privilege also protects confidential communications among judges and between judges and court staff made in the course of and related to their deliberative processes in particular cases."

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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