Cape Cod Times Op-Ed, June 8, 2016Having retired as a district court judge, I can tell you that the Cape Cod Times was wrong that there is “Little accountability of judges, prosecutors,” as it asserted in a May 27 editorial. Active sitting judges are prohibited by the Canons of Judicial Ethics from publicly defending themselves.
District court judges, for example, are supervised by the first justice of the local court, a regional administrative justice, the chief justice of the district court and the chief justice of the trial court. The Appeals Court and the Supreme Judicial Court can review nearly all decisions. Bails set may be reviewed by a Superior Court judge.
Additionally there is a Judicial Conduct Commission, which does not review individual decisions on substance, but deals with complaints from the public of violation of canons, ranging from sarcasm and impatience (of which, I confess, I accumulated many more than my share) to more serious allegations going to the heart of the administration of justice. Minor violations may result in admonitions or reprimands. Serious violations may result in a recommendation to the Supreme Judicial Court for suspension or removal.
The Supreme Judicial Court cannot actually remove a judge but may suspend the judge and refer the matter to the Legislature. It may disbar a judge, certainly prompting action by the Legislature.
The Legislature may impeach a judge for illegal activity. With the Governor and the Governor’s Council it may remove the judge by bill of address, which does not require misconduct and may be used on a judge who acts lawfully, but exercises his discretion in a way deemed unreasonably by public opinion.
With all that, there is still much discretion invested in the judge. Appointments for life on good behavior are designed to keep “accountability” to a minimum. Judges’ decisions are not supposed to curry public favor but to follow the law, with often unpopular results. There are good reasons for strong judicial independence.
Most people arrested or summoned to court are released on personal recognizance or a low bail. A statute provides a number of factors to consider in setting bail, all designed to ensure the defendant returns to court, not prevent him from committing other crimes. Ironically, judges and prosecutors are more often criticized for not giving more consideration to mental health treatment, which seems to have been what was going in the case described in the editorial.
District court judges make dozens or scores of decisions every day. Every time a judge lets someone leave the courtroom there is the risk that person may commit some horrible offense. Still, not everyone can or should be held.
A legal proceeding can seldom by fairly assessed by what is reported in the press, which of necessity omits some factual or legal details.
The editorial was unfair in conflating judgments that turn out unsuccessfully with misconduct and in lumping prosecutors and judges together, as they have very different roles. Prosecutors are supposed to try to convict criminals to protect us — all within the rules, which judges are supposed to enforce. It should not be a ground for complaint that only two prosecutors have been disciplined by public reprimand in 42 years, as the editorial points out; rather, it should be a source of pride in Massachusetts prosecutors.
The New England Center for Investigative Reporting, on which the Times relies, found only 120 cases in those 42 years in which an appellate court reversed a conviction for prosecutorial misconduct. That is out of hundreds of thousand of criminal cases, an infinitesimal percentage. And the prosecutorial misconduct was overzealous argument and matters of that sort, arising from our adversarial system, not framing innocent defendants. Of those 120 cases, only 11 defendants were not reconvicted.
In our free society it’s perfectly fine for judges and prosecutors — and police too — to be subject to public scrutiny and comment on their performance. Let’s be grateful, though, to all those men and women who make the tough calls and usually hold the ugliness of the world at bay as we go about our lives.
— Brian R. Merrick of West Barnstable was a district court judge for 25 years. He blogs at http://www.monkfishoncape.com.