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John R. Salsberg

Stop the public griping about judge

By John R. Salsberg
April 29, 2011

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ONE OF lawyers’ favorite sports is complaining about judges. It’s natural to look for a scapegoat when a case turns out badly for your side. Privately, attorneys frequently complain that a judge ignored facts or misapplied the law. But respect for an independent judiciary, which benefits us all, generally keeps lawyers from complaining to the press. Instead, we file appeals to higher courts.

The court of public opinion is not a place to try cases or gripe about judges. By turning the judicial process into public spectacle, law enforcement authorities cheapen the pursuit of justice and deny the due process that all us cherish. Suffolk District Attorney Daniel F. Conley’s recent singling out of Boston Municipal Court Judge Raymond Dougan, in an effort to publicly humiliate someone who is universally respected, even if you disagree with him on his opinions and judgments, is uncalled for. Doing so in the name of “public safety’’ raises questions about the real motivation behind this personal attack.

Every day judges disagree with a prosecutor’s request for bail, a legal argument, or a sentencing recommendation, and they never find themelves on the front page of the Sunday newspaper, as Dougan did recently. Virtually no other judge faces this kind of scrutiny by a district attorney.

It is very risky to attack a jurist who the prosecutor knows must stand mute. It undermines the notion that lawyers are interested in the truth, as no principled lawyer thinks a one-sided presentation is meaningful. When a lawyer publicly excoriates a judge, he or she knows there won’t be an open exchange because the judge is ethically not permitted to respond.

Likewise, it is difficult for criminal defense lawyers to take public positions decrying injustices perpetrated by judges or a district attorney’s office. Every day we have to appear in court, negotiate or plea-bargain cases with prosecutors, and ask judges to rule on cases. We are constrained not to make enemies and jeopardize the rights of our clients in present and future cases. We do battle in the courtroom, where it is understood that we have an adversary system and a strong advocate is well-respected.

When we publicly embarrass the other side, we know it won’t be forgotten and there will be consequences. Prosecutors decide who will be charged and what charges they will face. Thoughts of standing in front of the courthouse with a placard stating that a particular judge is unfair when we lose or naming a prosecutor who has intentionally withheld exculpatory evidence are momentary vengeful fantasies. In the face of the power of the state, which resides in the courts and the offices of the district attorney, most of us decline to attack people outside the judicial process.

Have the rules been changed by the Suffolk County district attorney, whose website touts his “pursuit of ethics, civility, and professionalism in the courtroom’’? Should we list judges who have condoned unconstitutional behavior in cases and been overturned by appellate courts? Should we move to recuse all judges who are former prosecutors and who don’t believe illegally obtained evidence should be suppressed, or judges who hand out excessively harsh sentences after trial?

Treating the criminal justice system as an arena of ridicule may sell newspapers or garner votes for politicians, but it undermines the integrity of the courts and the independence of judges to make decisions, as impartial arbiters of the facts and law.

Overall, we have been well-served by a separation of powers and a judiciary mandated to make rulings in conformance with its duty to uphold the Constitution and apply the law as it deems fit and proper. Dougan’s courtroom is open to the public every day. If you watch him at work, you will see that every victim, witness, litigant, criminal defendant, and prosecutor is treated respectfully and given an opportunity to be heard and have issues thoughtfully decided, free from outside influence. Isn’t that what everyone wants?

John R. Salsberg is chairman of Suffolk Lawyers for Justice.