James W. Dolan

Speak out, judges

Email|Print|Single Page| Text size + By James W. Dolan
December 6, 2007

DURING MY 26 years on the bench, I frequently saw colleagues hammered for making "mistakes" - often in the context of a bail or restraining order hearing in which the judge released a defendant who went on to harm someone.

Most simply took the beating without responding, on the grounds that it would be an ethical violation to make a statement regarding a pending case. Superior Court Judge Kathe Tuttman took that approach recently, after a man whom she freed on personal recognizance was accused of killing two people in Washington state.

Unfortunately, the failure of judges to promptly explain controversial decisions reinforces the public view that they are arrogant and unaccountable. This damages not only the judge but also the court system.

The Code of Judicial Conduct is designed to keep judges independent and protect them from allegations of bias. Some judges take it to mean that they can say little or nothing about their cases. This interpretation is extremely narrow and, in my view, wrong. And by appearing to hide behind it, judges often make a difficult situation far worse.

The public will tolerate a mistake, but people understandably refuse to accept the stonewalling evident in the stock phrase: "I cannot comment on a pending case."

There is a difference between commenting on a case and explaining a decision. Granted, the judge should not hold a press conference or go on a talk show. But where is the harm in writing a memorandum explaining the basis of a decision? Is a court proceeding jeopardized by a judge explaining a bail decision?

When a tragedy occurs, the public's rush to judgment is fueled by talk show hosts and the press, often reacting out of hindsight - and with little or no information about what prompted a judge's decision. Intent upon blaming someone for a tragedy, the judge who supposedly "should have known what was going to happen" is the obvious target.

In those circumstances, a judge's silence underscores the perception that the judge was wrong and his or her actions indefensible, and that the court system is unresponsive.

Judges balance the risks of flight and harm against the right of a defendant to be free pending trial. A judge who holds a defendant even when the risks are slight knows he or she is not likely to be criticized. But judges cannot and should not hold everyone. There is always the risk that a released defendant will harm someone. Tragedies have happened before, and they will happen again.

I presided over thousands of bail hearings when I was a judge. Many a night, I woke up wondering if I had been right in releasing a defendant. Had I put the victim at risk? It was only through hope, an occasional prayer, and good luck that I managed to avoid tragedy in that minefield.

Judges live with the knowledge of the devastating effects a "wrong" decision may have on a victim. And they may suffer collateral damage, both professionally and psychologically.

In light of the risks, judges should at least be free to lay out their own thinking. Appellate judges go to great lengths to carefully explain their decisions, so that other judges can correctly apply the law and the public will understand the decision-making process. Even in highly divisive cases, one can at least see the decision was the product of a reasoned analysis.

Why shouldn't trial judges be able to do the same thing - even if only after the fact? It may not be necessary in every case. But if a controversy erupts over a judge's decision, the better practice would be for the judge to review the record and reduce the decision to writing. That document would then be part of the record and available to the press.

The public may still disagree but would at least see it was not arbitrary. It is a disservice not to permit a trial judge to explain a decision. Not only would it provide a more accurate account of what happened, but it permits an otherwise beleaguered judge to set the record straight.

The public reasonably expects public officials to give reasons for their controversial decisions. I am confident that the Supreme Judicial Court would not interpret the Code of Judicial Conduct as a "code of silence" in such matters.

The public has a right to know. I expect most judges want the right to explain.

James W. Dolan, a lawyer, is a retired Dorchester District Court judge.

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