The Importance of the Commitment to Judicial Accountability in Massachusetts

A guest post by Lawrence Friedman

In retrospect, the contretemps at summer’s end between the District Attorney’s office and a municipal court judge in Boston looks like a case study on the importance of effective accountability mechanisms in a judicial system. The dispute between prosecutors and Judge Richard Sinnott arose following the arrest of counter-demonstrators during the Boston Straight Pride Parade. Sinnott refused to accept an entry of nolle prosequi – the abandonment of a charge – in respect to certain defendants accused of disorderly conduct, on the ground that doing so would violate a Massachusetts statute that protects victims’ rights. The judge also ordered that a defense attorney arguing in favor of accepting the nolle prosequi be handcuffed and removed from the courtroom.

In addition to attracting a great deal of media attention, Judge Sinnott’s actions came in the wake of both a failed effort to amend the method of judicial selection in Massachusetts, and the release of the Boston Bar Association report, “Judicial Independence: Promoting Justice and Maintaining Democracy,” which defended the Commonwealth’s system of judicial selection through gubernatorial appointment with approval by the governor’s council. The responses to Sinnott’s denial of the Commonwealth’s entry of nolle prosequi and detention of a defendant’s lawyer illustrate ways in which real accountability is possible without abandoning judicial tenure. (Full disclosure: I was a member of the working group that drafted the Boston Bar Association report).

The Massachusetts legislature rejected a recent proposal to amend the constitution to provide that judges be reviewed every seven years, an initiative aimed at ensuring judicial accountability, according to one of the sponsors, for those judges who “make poor legal decisions.” The Boston Bar Association report, on the other hand, highlighted the existing mechanisms through which judges can be held accountable within the existing system. These mechanisms include the appellate process, an enforceable code of judicial conduct, and the promotion of transparency. Each of these mechanisms has worked in the case of Judge Sinnott.

Continue reading “The Importance of the Commitment to Judicial Accountability in Massachusetts”

Supreme Judicial Court reverses course on suspension of Judge Joseph

A guest post by Lawrence Friedman

The tensions between state and federal authorities resulting from the Trump administration’s immigration policies are evident in debates over a proposed southern border wall, sanctuary cities and, in Massachusetts, the indictment of District Court Judge Shelley M. Joseph on obstruction of justice charges. An April 25, 2019 grand jury indictment alleges misconduct in her courtroom involving Immigration and Custom Enforcement officials and immigrants who had been held in state custody. While the federal criminal process moves forward in the wake of Joseph’s not-guilty plea, the federalism and state sovereignty issues have featured in a separate proceeding concerning her initial suspension without pay by the Massachusetts Supreme Judicial Court (“SJC”) in an order issued the same day as the grand jury indictment.

The SJC based its initial order “solely on the fact that [Judge Joseph] had been indicted for alleged misconduct in the performance of her judicial duties.” Joseph subsequently sought partial reconsideration, arguing that she should be suspended with pay, rather than without; and that she should be suspended only from her judicial duties. Following a nonevidentiary hearing, the SJC issued a revised order on August 13: a majority of the justices concluded that suspension with pay was appropriate in the unique circumstances of the case, and denied Joseph’s request to be assigned administrative duties.

The court was right to grant reconsideration and reverse course on the question whether Joseph should be paid during her suspension. It initially imposed suspension without pay absent any inquiry into the circumstances surrounding the federal indictment, relying for guidance on precedent as well as the Massachusetts Trial Court personnel policy and state statutes. Past suspensions notably had been imposed following findings indicating circumstances in which discipline was appropriate. As for the Trial Court policy, it provides that “[a]n employee who is indicted for misconduct in office … shall be suspended without pay until the conclusion of the criminal proceedings,” while Massachusetts General Laws Chapter 30, Section 59, and Chapter 268A, Section 25 authorize the suspension of state officers and employees during any period they are under indictment for misconduct. These rules, as the SJC observed in Massachusetts Bay Transportation Authority v. Massachusetts Bay Transportation Authority Retirement Board, serve “to remedy the untenable situation which arises when a person who has been indicted for misconduct in office continues to perform his [or her] public duties while awaiting trial.”

Notwithstanding the laudable aim of the rules, their automatic application to a judge may be problematic—particularly when the criminal allegations involve conduct in the courtroom, as opposed to actions outside the scope of the judicial function. Here, the SJC’s initial reliance on the mere fact of the indictment as a basis for suspending Joseph obscured a legitimate concern about prosecutorial intrusion into a trial judge’s authority to control her own courtroom. That a federal prosecutor sought the indictment, moreover, potentially raises federalism and separation of powers issues. In these circumstances, some kind of pre-suspension inquiry was warranted—an inquiry that the SJC ultimately made through the hearing on Joseph’s reconsideration motion, aided by the briefs of the parties and amici on the question of whether her suspension should be with or without pay.

No doubt, the SJC’s decision to reconsider the terms of Judge Joseph’s suspension will offend many Massachusetts citizens; as Justice Frank Graziano argued in his dissent, they will see the court as according a judge special treatment by restoring her pay. But, as the concurring justices noted, the decision to suspend Joseph without pay effectively denied her the ability to mount a defense to the criminal charge against her—a charge that may well implicate both judicial independence and the sovereign authority of the state judiciary itself. By ordering suspension with pay, the SJC has given Joseph the ability to mount a vigorous defense—in the knowledge that her trial may well test the extent to which state and federal law enforcement officials can act in spaces that traditionally have been seen as beyond their reach.

Massachusetts judge rejects plea deal in ICE evasion case

Shelley Joseph, the Massachusetts state judge who has been charged with helping an illegal immigrant evade an ICE official in her courthouse, has rejected a plea deal from federal prosecutors. Joseph was suspended from the bench after her arrest.

Joseph’s alleged actions have caused enormous controversy in the Bay State, raising difficult questions of federal-state relations, access and safety in state courthouses, and a wealth of moral and ethical considerations.

MassLive has a full report for those following this story closely.

Massachusetts set to lift ban on cell phones in courthouses

Following the recommendation of its Access to Justice Commission, the Massachusetts Trial Court Department is taking immediate steps to lift the ban on cell phones on state courthouses.

The Commission’s report

cited hardships such as the inability of self-represented litigants to present photos or text messages as evidence to a judge, to consult their calendars, to reach child care providers, or to transact other “essential” business.

The recommendations of the working group include a full review of all courthouse bans to determine whether they are justified, and a pilot program to test the use of magnetically locked security pouches.

“Instead of using a strategy that relies on prohibiting the possession of cell phones as a condition of entry, each courthouse should employ a strategy, tailored to its security needs, that relies on regulating and controlling the use of cell phones within the building,” the authors of the report wrote.

This seems like a sensible step in the right direction. The made sense to ban phones in an earlier era, where the potential distraction might outweigh their value. But the near necessity of cell phones today–for child care and emergency communications, as memory and scheduling devices, and as carriers of critical personal information–merits a different response.

 

 

Massachusetts dallies with, and rejects, judicial term limits

My colleague Lawrence Freidman — a sometime guest contributor to this blog — praises the decision here:

The measure the Committee rejected proposed amending the state constitution to provide that judges be reviewed every seven years by the governor’s council. In an interview with The Lowell Sun, the author of the “Proposal for a Legislative Amendment to the Constitution Relative to the Term of Judicial Officers,” Representative Tom Golden, stated that the goal was judicial accountability, particularly for those judges “who consistently make poor legal decisions. 

There are two problems with this justification. First, it is far from clear that there ever could be universal agreement – or even agreement among the members of the Governor’s Council – as to the definition of a “poor legal decision.” It is a fact that, in every civil and criminal case, one party is bound to be disappointed by some judicial ruling, whether it concerned scheduling, procedural mattersor the admissibility of evidence—not to mention the end result. In other words, decrying a “poor legal decision” is in many instances another way of saying you simply do not agree with that particular decision. 

This is not to say that judges are infallible, or that no judicial decision can be deemed objectively wrong. But this leads to the second problem with the proposal: the notion that the only effective form of accountability is one that involves the democratic removal of constitutional officers from their posts.

Read the whole thing!

On federal laws and state courthouses

By now,  many readers may be familiar with the growing tensions between states and the federal government over the Trump Administration policy of arresting illegal immigrants outside (and inside) state courthouses. The issue has been brewing for some time, and came to a head in Massachusetts this week when a state court judge and court officer were themselves arrested by federal authorities for helping Jose Medina-Perez, an illegal immigrant in their courtroom on drug charges, evade imminent arrest by an ICE agent by spiriting him out the back door of the courthouse.

Yesterday, in what they maintain is merely a coincidence of timing, two Massachusetts District Attorneys filed a lawsuit against the federal government, seeking to enjoin ICE from making any further arrests in state courthouses.

My former law school classmate Ted Folkman has an excellent rundown of the events and a sensible take on it at Letters Blogatory.  He writes:

My best understanding of the law is that the immigration agent had the right to seek to detain Medina-Perez in the courtroom and that the judge probably shouldn’t have put obstacles (or perhaps “obstructions”) in his way, though I do not want to offer an opinion about whether the judge’s conduct satisfies the elements of the criminal statutes without studying them. Again, we want to think back to another era and the contexts in which states sought to thwart federal law enforcement, and not make a legal rule based just on the sympathies of the moment. But that said, I also think it’s a terrible idea to send immigration agents to courthouses in the first place to arrest people, because it discourages people from attending court and is contrary to efforts to increase access to justice. And I find it hard to see why the federal government thinks the answer is to charge the judge criminally rather than for the Massachusetts court to exercise self-governance.

Two points here deserve elaboration. First, the federal policy is a terrible thing for the operation of state courts and their users. It represents a clear intrusion by a separate sovereign that threatens to disrupt state court proceedings. More importantly, the fear of arrest by ICE agents is sure to dissuade people from coming to court when it is necessary that they do so. The administration of justice will suffer as victims and key witnesses don’t show up for hearings and trials. Claims of domestic violence, child custody, landlord-tenant relations, personal injuries, and a variety of other issues either will not be brought at all, or will lead to default judgments when the defendants fail to appear. If the American tradition of due process means anything, it is that even those who are not citizens — even those who are not here legally — deserve a fair day in court.

At the same time, state courts and state judges are simply not free to ignore federal law and policy with which they disagree. American history is rife with examples of states unacceptably undermining federal law through the operation of their own court systems. Again, if due process means anything, it is that the law must be fairly applied in every venue, regardless of (as Ted puts it) “the sympathies of the moment.” And the charges against the Massachusetts judge, if proven, are quite damning: she allegedly closed her courtroom to the ICE agent, turned off the electronic recording system, and snuck a federal fugitive out the back door of the courthouse. Regardless of how you come down on the morality of her action, her alleged behavior was remarkably unjudicial.

Put differently — we have courts of law, not courts of justice. There are established procedures in place to stop harmful conduct. The lawsuit discussed above is one such procedure; taking the law into your own hands while wearing the robe is not. Whether or not one sympathizes with the intent of the state judge here, her alleged activities have surely damaged the integrity of the state judiciary.

 

Another misguided, politically motivated judicial impeachment effort

After the shameful, politically motivated recall of California judge Aaron Persky this summer, I hoped that it would be a while before we saw another attack on a good judge who happened to give a single light sentence. Consider those hopes dashed.

Some members of the Massachusetts General Assembly are calling for the impeachment (technically the implementation of a “bill of address”) of state superior court judge Timothy Feeley, who gave probation to a convicted heroin dealer earlier this year.

The rancor over Feeley’s rulings have focused on the case of Manuel Soto-Vittini, 33, of Peabody, who in May pleaded guilty to possession with intent to distribute heroin and cocaine. He was caught with 15 grams of heroin — 3 grams below the threshold for a more serious trafficking charge.

Feeley gave him two years of probation, instead of the one to three years in prison that prosecutors sought, calling it “a money crime.”

Feeley also weighed Soto-Vittini’s immigration status, saying in court that if the Dominican national had been a U.S. citizen, he would likely have sent him to state prison.

Lawmakers have already called for an internal judicial investigation of the matter, which is ongoing. In that sense, the call for impeachment is likely just political posturing. But it is still corrosive and pointless. One can be dismayed by the light sentence and still conclude that removal from office is entirely inappropriate.