Report: Judges not accountable (Massachusetts)

Great piece by Steve Doane.

http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20120401/NEWS/204010343/-1/NEWS01

Report: Bay State judges not accountable

By STEVE DOANE
April 01, 2012

Two months ago, two complaints against Barnstable Probate Court Judge Robert Scandurra were sent to the Commission on Judicial Conduct, both alleging misconduct related to a sexual-abuse case highlighted by the Times.

Scandurra was the judge in a custody case in which a mother alleged her son was being sexually abused by his father. For three years, the judge allowed the father supervised and unsupervised visits despite multiple supported findings of abuse from state agencies.

Scandurra revoked joint custody after the father's semen was found on the child's pajamas.

The complaints themselves — one filed by an organization and the other by an individual — might come to nothing, but the public will probably never know the outcome because the state commission charged with investigating judicial transgressions operates in secrecy.

Massachusetts was recently ranked in the top five of states for judicial accountability in a report by the Center for Public Integrity, Global Integrity and Public Radio International. But the state scored low in several key categories, including public access to judicial performance reviews and the lack of written rationales behind judges' decisions.

In Massachusetts, judges on all levels are appointed until age 70. And they cannot simply be fired. It takes an act of the state Legislature to dismiss a judge, and that has not happened in more than 50 years.

Before a dismissal action even gets started, a judge is subjected to a multi-step process that occurs largely behind closed doors.

Insulated from public opinion

Proponents say allowing judges this kind of insulation from public opinion and outrage encourages them to make decisions that are fair and based solely on the facts in each case.

"We do that for a certain purpose, because we want judges to make unpopular decisions," said Nancy Gertner, a professor at the Harvard School of Law and a former U.S. District Court judge.

The trade-off is that the largely secretive process of evaluating judges allows little transparency or public accountability. The Times knows about the Scandurra complaints only because the people who filed the complaints told a reporter that they were doing so.

The "State Integrity Investigation" ranked several aspects of all 50 states based on their corruption risk, according to information from the organizations that did the study.

The Bay State's court system received a C+ rating for judicial accountability. Only four other states ranked higher, according to the investigation.

Massachusetts scored high on its disciplinary agency and that agency's ability to initiate investigations, as well as oversight on a judge's disclosure of assets.

Transparency lacking

Where it didn't score high is in transparency. In several transparency categories, the state scored below 50 percent, including zero percent on judges having to explain their decisions.

Other low-ranking categories include whether the oversight committee is protected from political influence and whether a judge's performance evaluations and administrative records are available to the public.

In Massachusetts, there are two major avenues for assessing judicial performance. The first is a case-by-case investigation of complaints against individual judges. The other is an annual evaluation compiled by the Massachusetts Supreme Judicial Court.

The Commission on Judicial Conduct fields complaints from distressed parties. In operation for nearly 40 years, it is charged with vetting the battery of complaints against the judiciary.

Between 1998 and 2010 — the last year data is available — the committee dealt with 2,684 complaints. Of those, about 2,458 — or about 92 percent — were dismissed for a variety of reasons.

About half of the dismissed cases were thrown out after an initial review, usually because they didn't fall within the commission's jurisdiction.

The other half were dismissed after an investigation.

The vast majority of these complaints involve a disagreement over a ruling or verdict and are typically filed by pro se respondents, or parties who represent themselves. Other grievances include racial and gender bias, denial of constitutional rights and conspiracy or collusion on the judge's part.

'Informal adjustment'

The commission doesn't deal with grievances over judicial decisions.

Of the 170 complaints that weren't dismissed, most were resolved in a sort of plea agreement called an "informal adjustment." This usually entails some sort of reprimand or punishment that isn't public. Punishments include persuading the judge to retire, mandating counseling, additional training or providing assistance for a judge.

A complaint finally becomes public after formal charges are filed with the state Supreme Judicial Court and after the judge has a chance to respond. But this is a rare occurrence. Since 1994, there have only been five public hearings involving judicial complaints.

One of the most recent cases involved Judge Ernest Murphy, who successfully sued the Boston Herald for defamation in 2005 after a series of articles portrayed him as soft on criminals and insensitive to victims. Murphy won more than $2 million in the lawsuit, but the Herald appealed the case. Murphy then wrote two letters to Herald Publisher Patrick Purcell on official court stationery demanding Purcell drop the appeal and give the judge a check for $3.26 million, the libel award plus interest.

Formal charges were later brought against Murphy because he used official court stationery for personal business, according to court documents. In 2008, the Supreme Judicial Court reprimanded Murphy calling his actions "a misuse of the power and prestige of judicial office." The court suspended Murphy for 30 days and ordered him to pay a $25,000 fine.

The Herald ultimately paid Murphy $3.41 million, but the judge retired from the bench in 2008 because of health issues.

In 2010, the Commission on Judicial Conduct handled 119 complaints. The highest number of complaints, almost 35 percent, were filed against Family and Probate Court judges, who handle divorce, child custody, guardian and estate cases.

In general terms, child custody cases can be very difficult to decide, Judge Scandurra said in a January interview with the Times, especially if parents start to raise issues such as alcohol abuse or drug use to gain leverage.

A strict confidentiality code

Beyond the investigation, the judicial complaint process is also governed by a strict confidentiality code. At the bottom of the complaint form, there is a disclaimer advising respondents that all communications between them and the commission are private except under extenuating circumstances.

Moreover, the confidentiality section mandates that the entire process will remain out of the public eye until formal charges are leveled.

Proponents of keeping judges separated from the court of public opinion say the process encourages judges to make the best decisions in cases without fear of retribution.

It may not be the perfect system, said former Judge Gertner, but the alternatives are much worse. She cited the judicial elections held in some states, such as Mississippi and West Virginia.

"When a judge has to run on a platform, it means they've already pre-judged a case," she said. "The notion that you'll make popular decisions to get re-elected is disturbing to me."

This was echoed by Fitchburg attorney and former president of the Massachusetts Bar Association, Edward P. Ryan Jr. It's important to draw a distinction between genuine misconduct and the judge just making an unpopular ruling, he said.

"You don't want the judge so worried about an attack that they can't make tough decisions," he said. "The last thing you want is for the ump to call balls and strikes based on who's yelling the loudest."