Globe Editorial

Dougan probe is warranted — now Conley must stand down

April 22, 2011

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THE CASE of Judge Raymond G. Dougan Jr. — the alleged “let me go’’ judge — presents a serious challenge for the Massachusetts legal system. The allegations against Dougan, outlined in a 72-page filing by Suffolk County District Attorney Dan Conley’s office, are essentially that his leniency goes beyond the normal discretion accorded judges — that he is automatically against the Boston police and Suffolk DA’s office. The seriousness of Conley’s allegations, and the high number of reversals of Dougan’s decisions by higher courts, are sufficient to merit an investigation, and the Supreme Judicial Court has appointed an independent attorney to look into the matter.

At the same time, Conley’s pursuit of Dougan, and the timing of his filing of the 72-page memo, provoke understandable anxiety within judicial chambers and the defense bar about a prosecutor trying to hound a judge off the bench.

Having outlined his allegations, Conley should back off and let the high court’s investigator do his work. And the public should reserve judgment, and put its faith in the investigation.

Judges in Massachusetts receive life terms precisely in order to insulate them from popular outrage. They need to feel secure enough to throw out evidence that’s improperly collected by police, even if it means allowing a person charged with terrible crimes to walk free. Judges can exercise discretion, but with important limitations: Their rulings should be based on application of the law to the evidence; and their decisions are subject to review by appeals courts.

Dougan is clearly a defendant’s judge, something of an outlier on the bench. He has shown a willingness to sentence drug offenders to treatment rather than prison — even in cases where the latter may be more prudent. He also takes a more skeptical view of police testimony than most of his colleagues. As such, his decisions are more often the subject of prosecutorial appeals, and a greater number of his rulings are overturned by higher courts.

But that does not necessarily mean he is guilty of misconduct. A deeper analysis, taking into account Dougan’s explanations for his decisions, can better determine if his rulings are reasonable, or if they consistently go against the police or prosecutors regardless of the circumstances.

Most troubling, and central to Conley’s claims, is the implication that Dougan’s rulings are reflexive — that his distrust of police leads him, for instance, to throw out gun evidence in a disproportionate number of cases, just because he knows that some irresponsible officers can lie about when and where they find illegal guns. (Charging a suspect with a gun offense is thought to be an easier way to convict someone than proving a robbery or assault.)

But even the most objectionable of Dougan’s rulings aren’t without a certain logic. In one case that provoked outrage, he declined to convict a Peruvian native on drunken-driving charges because it would lead to his deportation. Dougan declared that being forced to leave the country was too severe a punishment for the offense.

That ruling, especially, raises the suspicion that Dougan is replacing his judgment for the law. He should decide cases based on evidence, not the immigration status of the defendant. Fortunately, the system worked in that case: Dougan’s decision was overturned on appeal.

Still, his pattern of pro-defendant rulings, coupled with the charge — bolstered by some evidence — that he encourages defendants to give up their rights to jury trials in order to get a better shake from him, justifies a deeper probe.

The defense lawyers who support Dougan (who has declined to speak for himself) say that forcing him to recuse himself from criminal cases — Conley’s stated goal — would give a DA the power to intimidate judges from taking on police or prosecutors.

Conley isn’t a rash figure; he’s been a measured, by-the-books prosecutor. He first raised his concerns about Dougan in private, to the judge’s superiors. Nonetheless, he’s pushed his case aggressively enough, and should trust the SJC and the judicial conduct commission to investigate. This week, following a long Globe report on Dougan’s rulings, he instructed his assistant to file the 72-page report, making his case against Dougan viewable to the public. The timing was unfortunate. It furthered the perception that the DA wants to drive out this judge at all costs.

Dougan, however, has to take the opportunity of the investigation to explain his rulings. He and his supporters shouldn’t hide behind the shield of judicial independence. There is accountability in the system, even for judges. There should be a high bar to removing a judge from the bench. But it’s a bar, and Dougan has to show that he hasn’t gone over it.