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Globe Editorial

Silence in the court

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February 2, 2008

MASSACHUSETTS judges who find themselves under fire for controversial decisions refrain from public comment for fear of compromising the impartiality of the judiciary. That's how they are trained. But the public is often confused, and for good reason. Why would a well-reasoned explanation undermine judicial independence? Are some judges simply hiding behind an outmoded judicial code of conduct? The credibility of the courts depends on answers to such questions.

The recent appointment of an 11-member panel by the state's Supreme Judicial Court should shed light on when and if it is allowable for judges to comment about cases they have presided over, especially given the lengthy appeals processes. The current code lacks clarity and consistency. Some judges write sentencing memoranda. Others remain silent. When a case blows up in the press weeks or months later, it is not even clear if the code of conduct would allow judges to defend their decisions or sentences in writing. The panel should strive to bring the conduct code up to date. The American Bar Association deems it possible for a judge to respond "directly or through a third party to allegations in the media or elsewhere concerning the judge's conduct in a matter." But the current state system barely allows judges to comment on general legal procedures.

The weaknesses of the conduct code are revealed in two high-profile controversies. In July, Superior Court Judge Kathe Tuttman released Daniel Tavares on personal recognizance in a case of alleged assault on prison guards. Tavares, who had served a sentence for killing his mother, fled Massachusetts to Washington State where he allegedly killed a newlywed couple. Tuttman said nothing as the case escalated into a national scandal. It deescalated only when other jurists stepped forward to point out that the judge had little leeway after the prosecution opted not to request a dangerousness hearing.

This week, convicted sex offender Corey Saunders was arrested on charges of raping a 6-year-old boy in New Bedford. In 2006, prosecutors had tried to commit him indefinitely as a "sexually dangerous person." Yet Superior Court Judge Richard Moses denied the prosecutor's motion. Judge Moses put his decision in writing - a document thick with descriptions of Saunders's uncontrollable pedophilia. Yet in his decision the judge flimsily rejected the claims of the state's medical experts, who argued that Saunders was sexually dangerous and likely to reoffend. Even if the judge had a good reason, the conduct code seems to prevent him from answering follow-up questions. That leaves the public both frightened and ill-informed.

Massachusetts appoints its judges for life in order to protect them from partisan politics and corrupting influences. But residents want justice to be blind - not speechless.

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