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Hearing bodes well for Botsford

Confirmation seen for high court post

Suffolk Superior Court Judge Margot Botsford earned plaudits for her experience, intelligence, and integrity, but some of her criminal sentences were criticized as excessively lenient yesterday by several members of the Governor's Council reviewing her candidacy for the state's highest court.

Nonetheless, it appears likely that the 60-year-old jurist will be confirmed to the Supreme Judicial Court when the Governor's Council votes tomorrow. Botsford, nominated to the post by Governor Deval Patrick last month, needs only a majority vote of the eight-member council; three members openly pledged their support during yesterday's confirmation hearing, and even her fiercest interrogators on the council declined to say they would vote against her.

During a hearing on her judicial nomination, Botsford was pressed to explain why in October 2005 she sentenced a former Catholic priest who had molested five boys to eight to 11 years in prison. Prosecutors had sought a sentence of 12 to 15 years, while defense lawyers asked for five to eight years.

Botsford said that the defendant, Robert Burns, was 59 years old, and that the abuse had taken place 15 to 25 years earlier.

In the interim, she said, the former priest had served prison time in New Hampshire, undergone extensive sexual abuse counseling, and offered to plead guilty to spare his victims a trial.

"Although I can never predict with certainty what someone's future will be, I did feel that, if anyone had made a genuine effort to change his behavior and to rehabilitate himself, this was that person," she said.

Even in hindsight, she said, she would not change her sentence, based on the facts presented. However, she said, she would not today seal records in such cases, as she did in the child rape case against the Rev. Richard O. Matte, one of five priests whose settlements with victims were hidden from the public until the Globe's Spotlight team uncovered them in 2002.

During questioning, Botsford said she sealed the records only because the victim had also requested it.

"I would not do so anymore," she added. "What we have learned over time is that the sealing of records . . . does have a potential for hiding information that may be useful thereafter."

While her questioners depicted her as soft on crime, fans in the legal community say that Botsford's rulings defy politics or a tendency to favor the defense or the prosecution.

First Assistant Suffolk District Attorney Joshua Wall testified that prosecutors and defense lawyers alike consider the judge to be in the mainstream, issuing sentences that are sometimes considered too harsh, and sometimes too lenient. On the state's highest court, he pointed out, she will not be in a position to sentence criminals.

"Judge Botsford is a judge's judge," said US District Court Judge Patti B. Saris. "She's straight down the middle. She's smart, and she's fair."

Still, her political leanings provided a constant backdrop for the hearing. Botsford, of Jamaica Plain, was nominated for her current judgeship by Governor Michael S. Dukakis in 1989, when S. Stephen Rosenfeld, her husband, was the governor's chief of staff. Rosenfeld, who also worked for Dukakis as legal counsel, recently drew scrutiny when the Boston Herald reported that he gave three times the legal limit to Patrick's campaign last year.

"His political contributions are not something that we discuss," Botsford said, in response to questioning. "We are two separate people. He doesn't control what I do. I don't control what he does."

Her husband also gave $600 last year, $100 more than permitted, to Lieutenant Governor Timothy P. Murray, who holds a tie-breaker vote on the Governor's Council. In a break with his predecessors, Murray presided over yesterday's hearing, as he did with other recent nomination hearings.

Two councilors pressed Botsford to define judicial activism, the catch phrase opponents have used to deride the jurists who legalized same-sex marriage, and to clarify whether she considers herself a judicial activist. Botsford told the panel that she does not.

Councilor Mary-Ellen Manning also grilled Botsford on whether she viewed herself as a strict constructionist, a judge who sticks to a strict interpretation of constitutional language.

"I do think the constitution is something one needs to interpret in the context of the present," Botsford said. "I do not think its provisions were cast in concrete."

Stephanie Ebbert can be reached at ebbert@globe.com.

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