Two top Mass. justices speak out against 'vilification' of Tuttman
Two of the state's highest justices yesterday deplored the "public vilification" of Superior Court Judge Kathe M. Tuttman for having released convicted murderer Daniel T. Tavares, saying the attacks undermine the Massachusetts judicial system by ignoring the facts and the law involved in the case.
Supreme Judicial Court Chief Justice Margaret H. Marshall and the chief justice of administration and management, Robert A. Mulligan, said Tuttman was not free to deny Tavares his release merely based on her assumption that he presented a danger to society. They say critics are ignoring that legal restriction, as well as the evidence presented to her in court.
"In the absence of any evidence that her decision was not in accordance with law, or based on a fair consideration of the facts presented to her, the public vilification of a conscientious and hard-working judge should have no place in our society," the statement said.
Publicly defending a sitting judge and her decision - which has stirred public passions and come under attack by politicians, presidential candidates, and radio talk show hosts - is a highly unusual action by the state's highest court.
The two justices said that under legal rules, Tuttman was able to consider Tavares's dangerousness only if prosecutors from Worcester County District Attorney Joseph D. Early Jr.'s office had sought a hearing on the issue. Without such a hearing, they said, the judge was required to base her decision on whether the defendant would return to court voluntarily to face further proceedings.
"The law requires a judge to impose the least restrictive conditions that she concludes will secure that objective," their statement said.
They also said that Tuttman is barred by the judicial conduct code from "speaking to the press or the public, outside of court and many months later, about the reasons for a particular decision." They said that they agreed her decision should be open to public scrutiny, but added that "criticism that ignores the legal principles and factual record on which the decision was based undermines our system of justice."
Tavares, who served 16 years for killing his mother, was released in July on personal recognizance on charges, dating back two years, that he assaulted two prison guards. The charges were filed just days before he was to be released from serving his murder sentence. He initially was held on two $50,000 bails set in District Court, but Tuttman overturned that high bail and released him on personal recognizance. He then fled to Washington state, where police say he murdered a couple, Brian and Beverly Mauck, on Nov. 17.
Early's office yesterday reiterated its position that its chances for seeking a dangerousness hearing had passed when a district court set what it felt was sufficient bail on the two assault charges against Tavares.
"There was no need for a dangerousness hearing with a $100,000 bail holding the defendant, which was set in district court," said Tim Connolly, a spokesman for Early. "We agreed with the district court judge; we disagree with Judge Tuttman."
Republican presidential candidate and former governor Mitt Romney, who appointed Tuttman, a longtime prosecutor, to the bench in 2006, called for her resignation. His GOP rival, former New York mayor Rudolph W. Giuliani, has used the case to attack Romney's judgment. Two members of the Governor's Council, which approved Tuttman's appointment, are calling on Governor Deval Patrick to order a removal hearing.
Both the courts and political figures have come under fire for not calling for an investigation of the case. Patrick, saying he does not want to get involved in a Republican presidential primary debate, has asked his secretary of public safety, Kevin Burke, to review the facts of the case, specifically the role of the Department of Corrections and the district attorney's office.
Marshall's decision to defend Tuttman comes after a week of heated public debate, most of it aimed at the judiciary. She and Mulligan struck back in their statement yesterday.
"Criticism that ignores the legal principles and factual record on which the decision was based undermines our system of justice," their statement said.
The statement came just a day after Marshall appeared at the Massachusetts Newspaper Publishers Association and said she could not comment on the case because it could potentially come before the SJC.
Her spokeswoman, Joan Kenney, said yesterday that Marshall's decision to discuss the uproar is merely providing information about legal issues and procedures. Kenney did not mention the statement's strong defense of a sitting judge.
"This statement conforms with the Code of Judicial Conduct because Chief Justice Marshall is not commenting on a case, but is simply providing information about general legal principles," Kenney said in an e-mail statement to the Globe. "The Code allows judges to make statements that explain for public information procedures of the court." 