For the first time in its 34-year history, the Commission on Judicial Conduct faces a challenge to its authority, and it's brought by a sitting judge, Raymond G. Dougan of Massachusetts. In a judicial discipline case that seeks to emphasize the lines between judicial discretion and judicial misconduct, Judge Dougan, accused of being unfavorable to prosecutors has challenged the rights of the commission to subpoena him on his decision-making process.
Judge Dougan is of the opinion that such a subpoena by the commission puts judicial independence at stake and his contentions are backed by a group of nine retired federal and state judges who have filed an amicus in support. The amicus brief mentions that if the commission can subpoena a judge over his/her decision-making on the bench then “all judges will be obliged to look over their shoulder as they do the work of the Commonwealth lest someone, after the fact, bring a complaint about the ‘pattern' their decisions seem to reflect.”
Judge Dougan and others from the judiciary believe that judicial discretion, or a supposed pattern of judicial discretion, without any proof or allegation of judicial misconduct, cannot be the subject of an investigation by the Commission on Judicial Misconduct, and the Commission has overstepped its jurisdiction in its effort to play sockpuppet to the government.
However, the special prosecutor in the matter holds that if Dougan wins then “no sitting judge need ever remain truly impartial, for he may not be asked under oath if he is, and any improper bias or influence can remain safely concealed.”
Dougan's representation holds that a judge's thoughts should remain private as the deliberations of the jury, unless a reasoned decision is required to be recorded by law. The allegations against Judge Dougan are that he habitually disregards evidence of guilt and hands out inappropriately light sentences to criminals.
Many judges have opined that the complaint against Judge Dougan by Suffolk District Attorney Daniel F. Conley is nothing but an attempt to punish a judge whom state prosecutors do not like. If the authority of the Commission on Judicial Conduct extends to questioning the judge about his private thoughts on decision making processes involving a series of cases or his entire career, then any disgruntled party can also challenge judicial decisions on the ground that what went on in the mind of the judge remains unknown and carries the stink of bias, by not being made public.
However, the prosecutors have two facts on their side: first, the facts show that Dougan's decisions have been challenged more often than those of any other sitting judge in the Boston Municipal Courts, and in consequence, a greater number of Dougan's decisions have been reversed or modified than any other sitting judge since the 1990s.
In an interview with the media, the Suffolk District Attorney made his stand clear, “I cannot stand by while a clearly biased judge ignores the law and threatens public safety.”
