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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 Suffolk District Attorney Daniel F. Conley
By Andrea Estes
Globe Staff / April 20, 2011

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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.

Dougan has declined to comment on Conley’s complaints or numerous controversial decisions cited in an article in the Boston Sunday Globe, saying the code of judicial conduct prohibits it. Dougan has a reputation for being lenient on defendants, so much so that one defendant being booked by police predicted that he would go free if he went before Judge “Let Me Go’’ Dougan.

A Globe analysis found that Dougan’s decisions are appealed by prosecutors more often than any other Boston Municipal Court judge, and his decisions are also reversed more often by appeals courts.

His lawyer, Michael Keating, said yesterday that Dougan is an evenhanded judge and called the motion filed yesterday by Conley “a pathetic attempt’’ to remove Dougan because of a relatively few decisions that went against prosecutors over his long career.

“All they can do is dredge up 20 or 30 cases that have been decided years ago,’’ said Keating. “Because they disagree with the decisions, which are part of thousands of cases he’s decided, they conclude he has a bias against the government and he should recuse himself from all criminal cases? It’s a ridiculous and silly proposition.’’

Defense lawyers called Conley’s efforts an attack on the independence of the judiciary.

“The whole idea that he’s entitled to choose the judge who will sit on a criminal case is contrary to the constitutional separation of powers and the right to an independent judiciary,’’ said Max Stern. “I haven’t appeared in front of [Dougan], but he has an impeccable reputation as someone with whom you get an entirely level playing field.’’

It is rare for a prosecutor to file a formal complaint against a sitting judge. Conley, who would not discuss the confidential complaints or the Judicial Conduct Commission investigation, said he had intended to keep his concerns private.

Privately, however, Conley handed a dossier of cases to Dougan’s boss, Chief Justice Charles R. Johnson, that showed a pattern of discrediting police testimony and evidence while giving second chances to defendants with long criminal records. The day after the men met in 2009, Conley said, Dougan was reassigned to the civil bench. Johnson said the timing was coincidental and had nothing to do with Conley.

Dougan remained on the civil side until December, when he resumed hearing criminal cases. That is when Conley’s office first filed complaints with the SJC.

Officials of the Judicial Conduct Commission, whose investigation led to the resignation of Superior Court Judge Maria Lopez in 2003, would not acknowledge that a complaint had been filed or an inquiry launched. The commission’s work will remain secret unless it recommends formal charges to the Supreme Judicial Court or it reaches a point in the review that includes a public statement.

At the conduct commission’s request, the SJC has appointed J. William Codinha, a Boston lawyer who specializes in government investigations, to review Dougan’s record.

Andrea Estes can be reached at estes@globe.com.