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."

"In this case," wrote Justice Robert Cordy, "we conclude that although holding judges accountable for acts of bias... is essential, it must be accomplished without violating the protection afforded the deliberative process of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent." If you listened hard enough Thursday morning, you might have heard the howls of protest coming from prosecutors' offices all over the Bay State.

The justices, however, placed limits on the scope of the protection afforded judges like Dougan. The court ruled, for example, that the privilege "does not cover a judge's memory of non-deliberative events in connection with cases in which the judge participated. Nor does the privilege apply to inquires into whether a judge was subjected to improper 'extraneous influences' or ex parte communications during the deliberative process." For now, those avenues of inquiry are still open to special counsel Codinha.

Here is the heart of Thursday's ruling:

The threat that any of the many such decisions a judge must make-- very frequently unpopular with one party or another -- might lead to a requirement that the judge details his internal thought processes weeks, months or years after the fact would amount to an enormous looming burden that could not help but serve as an "external influence or pressure," inconsistent with the value we have placed on conscientious, intelligent, and independent decision-making.

Even the most steadfast jurist would be led to consider picking his or her way through some of the decisions of the day by a way of a route less likely to disturb the interests of those with the greatest ability to bring about such an intrusive examination.

Such a threat is even more profound, the court noted in a footnote, when it is a local prosecutor making the allegations. "While theoretically any disgruntled litigant could bring a misconduct complaint against a judge, we note the concern that this risk is greater in the case of a district attorney, whose office is generally involved in all criminal prosecutions before a criminal court and is thus uniquely able to exert the pressure that may arise from the probing of deliberative materials."


Judge Dougan will immediately benefit from this ruling. But he will still have to answer questions, under oath, about the cases at issue in the investigation. His attorney, Foley Hoag's Michael Keating, told me Thursday afternoon that the long-awaited deposition of the judge may happen relatively soon. So, for now anyway, it is still an open question whether he ultimately will be cleared of the bias allegations of him. Here's how the Globe characterized the problem:

A Globe review showed that, overall, prosecutors challenged Dougan's decisions more often than those of any other sitting judge in the Boston Municipal Court system. In addition, appeals courts have reversed or modified Dougan's decisions more than those of any other sitting judge since the mid-1990s.

Is that enough to find bias? We'll see. As Justice Cordy noted in the ruling Thursday:

Judicial misconduct investigations have been pursued successfully, not by examining the judge's thought processes, but rather by identifying the judge's outward expressions of partiality or by examining the judge's conduct over time through which that partiality or other abuse has become apparent.

Meanwhile, Keating says that Judge Dougan was pleased the High Court had finally recognized an "absolute privilege" over judicial deliberations. Not just for himself but because the ruling applies to every other judge in Massachusetts. Ironic, no, that a judge who has earned the wrath of so many prosecutors could be the cause of a ruling certain to make them even more frustrated and angry. It's just too bad John Adams, the judiciary's eternal friend, isn't still around to weigh in.

We want to hear what you think about this article. Submit a letter to the editor or write to