Boston District Attorney Demands Removal of Judge Viewed As Being Too Pro-Defendant in Criminal Cases

Suffolk District Attorney Daniel F. Conley (left) wants Judge Raymond G. Dougan Jr. (right) removed from criminal cases. Dougan is not being accused of being a drunk, pill-popper, or mentally incompetent. His offense is being too pro-defendant in criminal cases for the tastes of Conley. This appears to becoming a trend of prosecutors seeking to remove judges or boycott (or in one case, arrest a judge) who rule too often against the prosecutors or police.

There is no question that Dougan is known for giving light sentences and second-chances in criminal cases. In some of the cases discussed in the article below, I agree with the prosecutors and police on the need for jail time. However, as with many criminal defense attorneys, I have been in front of some judges who blindly rule with the prosecutors and barely want to listen to arguments from the defense. No one ever suggests that such pro-prosecution judges should be barred from hearing cases. Prosecutors are much more likely for political reasons to be made judges than are defense attorneys. This gives the bench in many states a heavy pro-prosecution bent. That never seems to be a problem and, if defense attorneys ever launched this type of campaign, it would be viewed as outrageous.

Conley is asking the Supreme Judicial Court to bar Dougan from hearing cases involving the Suffolk district attorney. He has also filed a complaint against Dougan with the Judicial Conduct Commission. However, Chief Justice Charles R. Johnson insists that Dougan is “one of the hardest-working and most conscientious judges in the judiciary.’’

Dougan has been criticized by the appellate court for some of his decisions and police and prosecutors refer to him as “Judge Let Me Go.” He may be far too lenient in some cases just as some judges are far too harsh. Ironically, many judges relish the title “hanging judge” and run on their harsh treatment of defendants.

However, it is alarming to see these cases in various states. If a trend, it would be a serious threat to the independence and integrity of our court system. Prosecutors are used to winning an overwhelming percentage of cases. Defense attorneys often complain that prosecutors need to just show up to win most cases and that harsh sentencing laws often force guilty pleas from defendants who would otherwise want to go to trial. The appearance of various district attorneys demanding the recusal of judges sends an obvious chilling message to judges that, if they want to seek higher courts, they better think hard before ruling against prosecutors. The message appears to be that you can never be too harsh in sentencing, but lenient sentencing can be a career ender.

I am surprised that the American Bar Association has not gotten involved in this matter, though criminal defense attorneys have never viewed the ABA as particularly assertive in the protection of defendant rights. The state bar, however, should be heard in these cases to bring some perspective and balance to the debate.

Source: Boston

Jonathan Turley

21 thoughts on “Boston District Attorney Demands Removal of Judge Viewed As Being Too Pro-Defendant in Criminal Cases”

  1. Esq. Conley, like many before, awaits a soft money-lined position in the political quagmire that is Boston politics. That Dougan forces him [and his brethern ilk] to actually follow the “rule of law” and present true and factual testimony and evidence to achieve a conviction is unfair and demeaning of someone deserving of power and position as Esq. Conley. Esq. Conley simply demands that Dougan [and all other judges] acknowledge his superiority by convicting all guilty individuals he, Esq. Conley, brings before the courts no matter how weak the case. Praise and rejoice Esq. Conley, for he has shone a light on “Let ’em go” Dougan, a great impediment to Esq. Conleys aspirations for office and hiring family and friends to feed at that sweet trough of the “public teat”.

  2. Here’s the latest on the story from this morning’s Boston Globe:

    Suffolk DA files report alleging jurist’s bias
    He requests Dougan withdraw from criminal cases, saying he favors defendants

    Suffolk District Attorney Daniel F. Conley stepped up his campaign yesterday to remove Raymond G. Dougan Jr., first justice of Boston Municipal Court, from criminal cases, filing a 72-page report documenting what he called the judge’s prodefendant bias.

    As the first court case was getting underway yesterday morning in Dougan’s courtroom, Assistant District Attorney Susan Terrey passed the motion to Dougan, who spent several minutes thumbing through the pages. He rejected the request, saying he had searched his conscience and his 20-year career deciding 100,000 cases and concluded that he has been fair and impartial.

    “I have concluded that any reasonable person looking at all of this would come to the same conclusion,’’ Dougan said. Two defense lawyers stood up and asked to go on record opposing Conley’s motion.

    One, Scott Gediman of Everett, called Conley’s motion an “utter travesty’’ that made him sick, according to a transcript of the session.

    Yesterday’s motion marks the first time Conley has filed a public document setting forth his belief that Dougan is biased against police and prosecutors, citing specific cases that he thinks support his assertion.

    Conley has complained privately about Dougan to the Supreme Judicial Court and the Commission on Judicial Conduct, which has appointed a special counsel to investigate Conley’s charge. Previously, assistant district attorneys have asked Dougan to step down from criminal cases, but without providing supporting evidence.

    In the motion filed yesterday, Conley requested that Dougan withdraw “from this pending case and from all criminal cases pending in the Boston Municipal Court and from presiding over any future proceedings in this case or any criminal cases.’’ The case yesterday involved defendant Joaquin Armaiz, who was facing drug charges.

    “Although some of these incidents are well in the past,’’ Conley wrote, “the entire historical record reveals a disregard for the proper role and authority of a judge . . . a disregard for the authority of the Legislature, a disregard for the authority and duty of the district attorney, a disregard for the constitutional separation of powers, and a disregard for Judge Dougan’s obligation to administer the laws and adjudicate cases in an impartial manner.’’

    Dougan would not appear to be fair and impartial to the “average person on the street,’’ Conley wrote.

  3. Rafflaw, Excellent observation. The office of Prosecuting Attorney is a traditional springboard to higher office. For a Prosecutor having a good convict record and some high profile cases under his/her belt is just good politics. There’s likely a good bit of politics going on with many of the examples the Professor has cited.

  4. Mespo,
    I wonder if Mr. Conley is thinking of running for office soon?? That might explain his desire to save the people of Boston from a judge who doesn’t always agree with him!

  5. An e-newsletter I subscribe to showed up in my in-box today and one of the articles seemed to get to the meat of the argument. There may be a bias in sentencing based on how recently a judge (or possible any trier of fact) has eaten. Maybe this judge just snacks a lot between cases.

    “Justice is served, but more so after lunch: how food-breaks sway the decisions of judges

    There’s an old trope that says justice is “what the judge ate for breakfast”. It was coined by Jerome Frank, himself a judge, and it’s a powerful symbol of the legal realism movement. This school of thought holds that the law, being a human concoction, is subject to the same foibles, biases and imperfections that affect everything humans do. We’d love to believe that a judge’s rulings are solely based on rational decisions and written laws. In reality, they can be influenced by irrelevant things like their moods and, as Frank suggested, their breakfasts.”

  6. I suggest to Mr. Conley that it is his fundamental obligation to do justice, even if that means not getting a conviction from time to time. He needs to decide whether he wishes to be a district attorney or a politician.

    Whatever the problems with the criminal justice system, and there are many, bias against prosecutors is hardly one of them.

  7. Mr. Turley,

    You suggest that this may be a troubling trend. I agree, however there is a more troubling trend in our nation. That trend is this: severe penalties for petty crimes and no penalties for major crimes.

    In this country it is far more likely for a person to go to prison for stealing something valued less than $100 than it is for someone (even to be charged or prosecuted) for stealing millions or billions of dollars. That is a troubling trend.

    There is another trend we should be worried about- the best attorneys in this nation sell their integrity to the highest bidder. The best attorney’s (the top law firms) regularly act to protect lawlessness.

    I wish ‘pro-defendant’ judges- in the case of ‘white-collar’ crimes would be removed. Or, better yet, that working people became judges. If I were a judge I would never incarcerate any person charged with a non-violent crime until every bankster / oil executive was hung by the neck until dead.

    Do attorney’s have any responsibility for the death of the rule of law in this nation? Yes. At least in Pakistan when corruption attacked the legal system the lawyers protested.

  8. Gyges-

    Amen! The size of the prison population in the United States indicates that the prosecution already has all the tools it needs to keep the prisons filled to capacity. Perhaps Judge Dougan believes that prisons aren’t very good at making better human beings out of their inmates and that there might be better alternatives in some cases. John Dillinger was an inept grocery store robber before he was sent to prison. In prison, he enrolled in Bank Robbery College, and when he was released, he was the finest bank robber in American history. Not the outcome the Judge or the Prosecutor intended when they “threw the book at him”.

  9. So what is the problem….Oh…yeah….the Judge is not one of them….now if the Defense made the same argument…that the Judge is too harsh….what would people say…

  10. Dear prosecutors,

    The reason we have trials is that you are wrong sometimes. The courts do not exist to rubber stamp your goals and agenda. In fact, they exist to make it harder for you to get your way.

  11. Can anyone cite me to cases where a federal judge makes a ruling in a case then is absent from the case (sickness, etc.) then another federal judge takes up the docket and makes a ruling contrary to the previous judge?

    Is that violation of “the law of the case” or any similar principle?

    I am only asking for abstract principles, not application in any one case (no legal advice wanted!) …

  12. This DA is way out of line. This is similar to Gov. Scott’s attempts to pack the Florida Supreme Court and create a division that has a conservative majority for his benefit!

  13. I was under the impression that good attorneys know how to properly ‘shop’ for judges that suit their needs. Is that not true? (I know it is not supposed to happen)

    would this action force the judge to recuse himself from cases these guys presented on grounds their statements could prejudice him?

  14. Setting bail, conviction, sentencing, and management of public defenders are different issues.

    When it comes to conviction, it is against public policy if people are convicted on insufficient evidence or fraudulent statements.

  15. I don’t know if the Judge is always smiling like that in his court but I could see how it would make a defendant say,WHEWWW!!

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