ONE OF lawyers’ favorite sports is complaining about judges. It’s natural to look for a scapegoat when a case turns out badly for your side. Privately, attorneys frequently complain that a judge ignored facts or misapplied the law. But respect for an independent judiciary, which benefits us all, generally keeps lawyers from complaining to the press. Instead, we file appeals to higher courts.

The court of public opinion is not a place to try cases or gripe about judges. By turning the judicial process into public spectacle, law enforcement authorities cheapen the pursuit of justice and deny the due process that all us cherish. Suffolk District Attorney Daniel F. Conley’s recent singling out of Boston Municipal Court Judge Raymond Dougan, in an effort to publicly humiliate someone who is universally respected, even if you disagree with him on his opinions and judgments, is uncalled for. Doing so in the name of “public safety’’ raises questions about the real motivation behind this personal attack.

While his motives are no doubt sincere, this isn’t exactly the best possible argument. In other words, what a load of crap.  What happened to our beloved transparency of public officials exercising significant power under authority of law being subject to public scrutiny?  What does judicial independence have to do with concealing gripes against judges?

It is very risky to attack a jurist who the prosecutor knows must stand mute. It undermines the notion that lawyers are interested in the truth, as no principled lawyer thinks a one-sided presentation is meaningful. When a lawyer publicly excoriates a judge, he or she knows there won’t be an open exchange because the judge is ethically not permitted to respond.

This paragraph makes no sense at all, but appears intended to let people know that judges are prohibited from defending themselves against attack.  Of course, there’s nothing to stop someone else, not so limited, from defending the judge.  So defend the judge, John.  Cut the “uncalled for” nonsense, as if Miss Manners controls public discussion, and argue the cause. 

Likewise, it is difficult for criminal defense lawyers to take public positions decrying injustices perpetrated by judges or a district attorney’s office. Every day we have to appear in court, negotiate or plea-bargain cases with prosecutors, and ask judges to rule on cases. We are constrained not to make enemies and jeopardize the rights of our clients in present and future cases. We do battle in the courtroom, where it is understood that we have an adversary system and a strong advocate is well-respected.

When we publicly embarrass the other side, we know it won’t be forgotten and there will be consequences. Prosecutors decide who will be charged and what charges they will face. Thoughts of standing in front of the courthouse with a placard stating that a particular judge is unfair when we lose or naming a prosecutor who has intentionally withheld exculpatory evidence are momentary vengeful fantasies. In the face of the power of the state, which resides in the courts and the offices of the district attorney, most of us decline to attack people outside the judicial process.

Ah, now we get to the bottom line.  When Salsberg wrote “it’s risky,” he was talking about criminal defense lawyers.  It’s risky indeed to take a principled position, speak out clearly and firmly against the local district attorney and invoke his ire.  There can be payback.  It can be very scary to say what needs to be said.  An angry prosecutor can do mean and horrible things to a criminal defense lawyer.  Very scary stuff.

So rather than stand up for a judge who has gone out on limb and angered the Suffolk County District Attorney by not becoming a cog in the wheels of the prosecution, the argument is that it’s unbecoming for the prosecutor to attack the judge, but criminal defense lawyers are too frightened, afraid, gutless cowards, to speak out in the judge’s defense.  They would, but they don’t want to upset the prosecutor. 

It’s usually unpleasant when someone, regardless of side, speaks out publicly against a government official exercising the authority of his office.  But this is how public debate happens sometimes, unpleasantly, uncomfortably, inconveniently.  Don’t hide behind a façade of propriety to avoid the scary work of standing up for principle. 

For crying out loud, man up.  Judge Dougan has demonstrated the fortitude to rule as he believes proper despite invoking the anger of the prosecution.  Will the criminal defense lawyers of Suffolk County run and hide with their tails between the legs in appreciation?

You bet it takes guts to stand up for principle.  If Judge Dougan is worthy of your defense, then defend him.  If it means you take the risk of angering the district attorney, so what?  He really doesn’t love you anyway, and learning that you’re cowards and lack the strength of your convictions, he won’t respect you either. 

But this fight isn’t about rationalizing why it’s understandable that criminal defense lawyers are so gutless, but about why Conley is dead wrong about Judge Dougan.  Your failure to stand up for Judge Dougan tells me you don’t deserve a judge with the guts to follow the law rather than be a cog in the system.  Then again, if Judge Dougan is as strong as he appears to be, he’s doing it for the people before him, not the sniveling lawyers who would rather run scared than be counted.

Judge Raymond G. Dougan Jr. has guts.  It’s a disgrace that the criminal defense lawyers who come before him aren’t similarly endowed.

H/T Doriss Day (yes, that’s right, Doriss Day.  What of it?)