Are we living in a banana republic? It’s starting to seem that way. First the Boston Globe does a Spotlight story based on information gleaned from their crack staff, the best of the best, going through a sampling of drunk driving cases in eastern Mass.
In most files they probably found a complaint, which has the name, age, and address of the defendant, the docket number, and the charge(s) against him. There is also the docket itself that is the official record of the case as it proceeded through the system. Court dates, bail, whether there was a trial and if so bench or jury, and finally the disposition, i.e. guilt/not guilty/dismissed/continued w/o a finding. And if but “not guilty” or “dismissed” then penalty/sentence.
The third part is the police report. Ah, the police report. The one that gives the police officer’s version of events and statements told to him by the defendant and civilian witnesses.
Anyway the SpotLite’s big scoop is that for every 20 arrest a police officer makes for drunk driving 17 plead guilty, 2 are dismissed or found not guilty by a jury and 1, one, will be found not guilty by judge after a bench trial where he heard the officer and witnesses testify under cross-examination and perhaps the defendant and his witnesses who were also cros-examined.
Within these not guilties are some cases where evidence has properly been suppressed prior to trial. Many times the assistant d.a. will move for a trial without the suppressed evidence rather than request a dismissal. The defendant will go jury waived. Nothing wrong with that. That results is a not guilty when the judge cannot find beyond a reasonable doubt.
Soo that one out of twenty arrests sounds about right to me.
“But Ernie” you say, “The Globe SpotLite reporters are the best and brightest. And they have the resources of The Boston Globe with the help of The New York Times supporting their Pulitzer Prize efforts, I am sure if there was anything else they could do to give their readers a better understanding of what’s happening in the community courts they would. Everyone knows that.”
You are wrong restraining order breath.
Also on the docket are tape numbers. The all important tape numbers. You see everything is recorded. They are available to the public for a fee. You can listen to the actual trial including sidebars.
A newspaper like the Globe would usually I suspect get a professional court stenographer/notary to transcribe the tapes. Then all the Clark Kents and Jimmy Olsens can read through and find out what went on. You know, get the story.
I believe that’s what they did in the early 1990s when they ran a SpotLite series on the Boston MUnicipal Court. One of the Globe’s beef’s was that some judges kept turning off the tape at certain times. Sal DiMasi was a major focus of those stories.
So I don’t get why they did not do that now. Perhaps it is coming in the next stories? Are there next stories?
Now if I was a lawyer and the partners I worked for were Margot Botsford or Roderick Ireland, or Bob Cordy, or any of members of the SJC and they assigned me the task of looking at the statistics related to OUI trials and report back with conclusions and recommendations I would expect to be fired for drawing conclusions of wrongdoing by district court justices or even inferring that there maybe something nefarious there without first doing some forensics.
More so when the initial findings don’t raise concerns to experienced and honest district court staff.
Instead, the very next day (unfortunately the court’s closed on Sunday) the SJC appointed a former prosecutor to look into this.
Look into what? Constitutionally and statutorily appointed people empowered to dispense justice with no outside influences are being investigated by their elite administrative bosses because the masses are improperly being whipped up by the New York Times owned Boston Globe.
You see the Globe SpotLite hit it big when Deval had his people tip them off about Sal’s transparent attempt to put the fix in for Dickie McDonough’s software client. (It smelled so bad that even Deval caught a whiff and did the right thing.) That was journalism.
But then they followed up with Probation thing which resulted in a Monday appointment of a special investigator the day after the story came out. See a pattern here people? Very reasonable to ask if our highest court conspires with the Boston Globe to get rid of or embarrass people bothering them.
The Globe isn’t interested in the fact that Judge Mulligan bought his reappointment as CJAM by hiring Judge Botsford’s nephew the day before she finally cast the tie-breaking vote to reappoint him to his powerful position. That my friends is as close to graft as you can get without actually passing an envelope.
Nor did they care that Mulligan had the wife of a powerful House committee chairman as his paid legislative lobbyist.
BTW, how about the Globe SpotLite reporting on Judges that are totally fucking people who come before them because they are afraid of a newspaper story labeling them soft on crime. These people are the real threats to justice.
Or the judges that enable corrupt and assaultive police officers by continuously giving credence to the same unreasonable testimony over and over and over again. Ayer District Court use to be a great place for this. I don’t know if it still is.
UPDATE – BMGer Scout gave me an F for reading comprehension for this post because the SpotLite story mentioned that they did listen to some tapes.
Here is my response:
“F” for You Too Scout…
Had you read my post yesterday you would have known that I grew so bored while reading the SpotLite story I fell and struck my head on the tub. Of course my comprehension was off.
So, because of you I went back and did a re-read. This time however, I put the roach clips on the lids to keep them open a la A Clockwork Orange.
Your right, they did go through a few cases. And they still suck. Let’s see, they told us about this damn thing called the United States Constitution which let’s lawyer tell a judge that his client has “no record” when he’s never been convicted of a crime. That holds true for a 61 year old man who was found not guilty of OUI twice before in 1993 and 2001.
The SpotLite team also raises concerns because a judge is currently sitting on the bench in 2012 even though while a college student in 1983 he was bagged for OUI. I can’t believe we even let this guy live the state never mind give him a judgeship.
The one story the Globe does have if true, is the report of the Judge hearing cases involving a specific defense lawyer whom he was specifically told to recuse himself from. That is bad. Not a Spotlite story but a below the fold front page story or the headline Metro story at least.
I especially love the six degree crap they have going. Attacking a judge for supporting the appointment of another judge. Real good journalism there.
The few cases they question seem selective. Perhaps chosen and isolated so as to prove the point they needed to make so they could justify the time and expense devoted to the “investigation”. Especially when the SJC was expected to give the story a huge boost. Maybe another Pulitzer? Hence the special investigator.
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And kids, if you have a doggie you better follow me on twitter @ernieboch3 or else it will get the mange. I ain’t chittin ya.
scout says
To answer one of your questions, it says right at the top that this article is part one of three. Regarding your complaint about the all important tapes, the article says (emphasis mine):
They also mention a similar (or maybe the same) instance you do of a judge turning off the recorder to hide what he is doing:
I realize it’s very long and detailed, but you might want to consider actually reading the article before you write your 4th post ripping it.
eb3-fka-ernie-boch-iii says
Had you read my post yesterday you would have known that I grew so bored while reading the SpotLite story I fell and struck my head on the tub. Of course my comprehension was off.
So, because of you I went back and did a re-read. This time however, I put the roach clips on the lids to keep them open a la A Clockwork Orange.
Your right, they did go through a few cases. And they still suck. Let’s see, they told us about this damn thing called the United States Constitution which let’s lawyer tell a judge that his client has “no record” when he’s never been convicted of a crime. That holds true for a 61 year old man who was found not guilty of OUI twice before in 1993 and 2001.
The SpotLite team also raises concerns because a judge is currently sitting on the bench in 2012 even though in 1983 while he was an undergraduate student he was bagged for OUI. I can’t believe we even let this guy live the state never mind give him a judgeship.
The one story that the Globe does have if true, is the report of the Judge hearing cases involving a specific defense lawyer whom he was specifically told to recuse himself for. That is bad. Not a Spotlite story but a below the fold front page story or the headline Metro story at least.
I especially love the six degree crap they have going. Attacking a judge for supporting the appointment of another judge. Real good journalism there.
johnd says
There are many stories which the Globe (and other reporters) report on which become “Sal-esk” scandals which could very easily be dismissed on their surface. Luckily, some of these stories being reported start legitimate investigations which look under every rock and do find a pot of gold (MA Probation System… O’Brien…).
Let’s see what the SJC finds out from their investigation. If they find we truly have a problem then the imperfect story was worth it. If they find nothing wrong and ask people to move along, I’ll still consider it a worthwhile story which may end up educating people about the system, how it works and maybe how it doesn’t work.
tedf says
Ernie, the SJC’s statement makes it clear that the preliminary investigation has been underway for weeks, and that the court didn’t appoint the investigator “the very next day” after the story.
Moreover, I think the SJC’s statement is right on the money:
eb3-fka-ernie-boch-iii says
If you were a police officer and one out of twenty OUI arrests you make resulted in a not guilty by a judge would you feel your jib was useless?
If you were a Supreme Judicial Court Justice who spent your professional career studying jurisprudence and case laws where a reasonable doubt standard applies would you think one out of twenty was off kilter?
I strongly suggest the answer to both should be know. Yet the public is being told by the Globe and the SJC that there is something wrong with this stat.
The SJC should instead be sticking up for most of these judges and let people know that this is how our justice system works and 99.9% of the time there is nothing nefarious. Instead they are either a bunch of Globe puppets/sycophants or conspirators using the Globe for internal power purposes.
eb3-fka-ernie-boch-iii says
I strongly suggest the answer should be “NO”
tedf says
I guess what I’m saying, Ernie, is that the SJC is doing exactly what you say it should be doing:
No throwing anyone under the bus, as far as I can see.
eb3-fka-ernie-boch-iii says
Fact finders, especially judges, are giving a wide berth in determining guilt. Transcripts can never substitute fully for all the factors that go into determining credibility of witnesses etc.
As for the misconduct of the one judge who seemingly defies orders and allows a certain attorney to appear before him, well we have the Judicial Conduct Commission to handle that. It’s exactly what they are there for.
And the one judge cited in the SpotLite story for reading jury instructions that, according to the Globe, was inaccurate, well Ted we have an adversarial system. And before every jury charge there is a conference between the judge and lawyers as to what the charge will be. The district attorney had plenty of opportunity to raise the issue and if not satisfied apply for an interlocutory appeal. Stop the trial right therer and then until a higher court judge sets the record straight.
In reality the district attorney should have pointed out the judges flaw and the supporting law. But he or she fell asleep at the wheel.
So Ted, this crap pointed out by the Globe is all dog bites man junk with procedures already in place to take care of the alleged wrong doing.
So why is the SJC having a special investigation?
tedf says
Even if the courts are completely fair and impartial, it is important that they be seen to be fair and impartial, which is why inquiries like this can be a good idea after a news story breaks.
eb3-fka-ernie-boch-iii says
I see nothing in the SpotLite story that suggests the need for this lame dog and pony show.
I suggest you chat with lawyers that spend their time trying criminal cases in the district courts.
The SJC can look into any complaints without the appointment of a special investigator.
Refer the judge with conflicts to the Judicial Conduct Commission, that’s what they are there for. Also any civilian can make a complaint.
Shame on the District Attorney for not correcting the judge when he let the lawyers know before hand what his charge would be. That is what is done in every jury trial. Also shame on Judges Mulligan and Connolly for not providing the district court judge up-to-date Model Jury Instructions.
When compared to all other criminal cases in the district courts and the variety of judges each with their own quirks and life experiences you get all ends of the appropriate judicial discretion spectrum. That’s all.
Take any kind of case: Stolen cars to drugs to shoplifting. Some judges are complete muttah fukahs while others are lenient chaps. Some see reasonable doubt at every corner while others act like they don’t believe in reasonable doubt.
Court rooms are like classrooms. You are and I may have the same class at the same school but with different teachers. You work your ass off to get to a B and I get the B+ by just by doing little more than showing up. Why? Because of the teacher. Both are pros and legitimate teachers who see things differently.
Same with judges.
And that’s jurisprudence 101. But the SJC can’t or won’t explain it without having a Watergatelije inquiry? Shame Shame on them.
deepthinker says
http://www.mass.gov/courts/statement-of-justices-103111-oui.html
johnk says
eb3-fka-ernie-boch-iii says
Not an epidemic.
Video’s have often been enough for reasonable doubt. Did the Globies watch the video. Because of teh video the judge was not convinced beyond a reasonable doubt.
BTW most OUI police reports are boiler plate when it comes to slurred speech and blood shot eyes.
Veering over the center lane twice on a \n empty country highway is not beyond a reasonable doubt of impaired driving.
johnk says
seems pretty clear cut.
eb3-fka-ernie-boch-iii says
which was what the video showed.
You’d be amazed what people can blow and still function fine.
Did the judge give the kid a break? Yes. He even said so. Did he abuse his discretion? No.
Is there an epidemic of judges letting guilty go free? Absolutely not.
Should the SJC be having a special investigation because of the pathetic Globe findings? Positively absolutely no.
Trickle up says
I don’t mean that in a bad way, and I appreciate that for practitioners the process must be paramount. I care about that too.
But lots of people also look at the outcomes. Some people never seem to face any consequences. A system that lets people drive drunk again and again and again and again, even after they hurt someone–that’s not right.
tedf says
Are you are saying that the judge has “discretion” to “give kid a break” if the evidence shows beyond a reasonable doubt that he is guilty? If that is what you are saying, then we may not be on the same page.
Jury nullification: fact of life, last-ditch protection of the people against government overreaching, or essential element of self-government—take your choice.
Judge nullification: not so good.
eb3-fka-ernie-boch-iii says
The judge hung his hat on the video. He admittedly erred in telling the kid he was giving him a break. But the fact is he did by citing a legitimate piece of evidence that in his opinion provided reasonable doubt.
Perhaps the judge was thinking that nobody was hurt, twice causing the center line on an empty road does is not convincing of impaired driving, he’s 23 and the long term negative consequences now in place for first offenders can make life unreasonably difficult for someone just starting out in the world.
If not indigent then he or someone paid at least $2,500 and more like $5,000 for a lawyer experienced in this type of crime and familiar with the idiosyncrasies of the particular court.
He also got locked up for night and had a few court appearances during the months full of angst and depression.
Now I’m guessing the judge was a human so like jurors he can be selective with his reasonable doubt. No judge or juror would say it that way but that is basically what we are saying when we talk about a witness being convincing or likable.
Nothing wrong with that.
And the case law backs it up. And the SJC knows this.
BTW, what do you think the odds are the kid will get arrested again for OUI. I’l give you a hint, they are low.
johnk says
In Massachusetts if you drive drunk, like this kid did, blowing a .13 an hour or so after being pulled over for DUI. All you have to do is plead not guilty, hire a lawyer and 80% of the time you’ll get off.
eb3-fka-ernie-boch-iii says
5% of the time. That’s another thing misleading about the story