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Bench players

Massachusetts does not use public elections to decide who holds judgeships. Some say it should — even though attorneys close to the system say that there’s no way the average citizen could understand all the complexities that go into sentencing decisions.

Earlier this summer, the proprietor of a Holyoke Dairy Mart was shot to death at his store. The assailant was the same man who had robbed the store only a week before.

"Let’s look at this individual more closely,"Holyoke Police Chief Anthony Scott told BusinessWest. "A year prior, he was arrested for armed robbery, and on a recommendation from the district attorney and the defense attorney, he was given three years probation for armed robbery and one year in a house of corrections for possession of stolen property — and a judge went along with that."And last September, Scott said, a man was arrested by Springfield police three times in one week, two of those for possession of firearms, and was released on his personal recognizance each time.

"Who gets the blame for that?"he asked. "The police — but they didn’t release him. The judge’s excuse is that ’I was just going along with recommendations,’ but whose court is it? It’s not the district attorney’s court or the defense attorney’s court — it’s the judge’s court."Alarmed by what he feels is a rash of leniency in the courts, Scott has been crusading to establish a certification system by which voters would affirm or deny a judge’s further service after a set term in office.

In doing so, he has shed a spotlight on the way that judges are now installed in Massachusetts — a system that does not involve elections or other public input, yet one that has seen a number of changes over the past several years.

Streamlining the Process

The significant difference between the current system of selecting judges and the one used prior to Gov. Mitt Romney’s administration is a more centralized, less regional approach, said Nancy Frankel Pelletier, a civil trial lawyer with Robinson Donovan in Springfield.

Under previous administrations, Pelletier served on a group of attorneys representing Western Mass.; other committees were appointed for other regions of the state.

"We were responsible for supplying names to the governor for the district court and any clerks or clerk magistrate positions, and the initial interviews were done by the regional committees,"she told BusinessWest. "There was a group based in Boston with attorneys from all over the state that would do the same thing on the superior court and appellate-level court; there was no regional committee for that."Each county bar also had a representative to review applicants, while other bar associations, such as the Women’s Bar Association, were allowed to weigh in during the process as well. Eventually, a slate was submitted to the governor’s chief legal counsel for final approval.

"Although it was an honor to serve on the committee, it took an inordinate amount of time,"Pelletier said. "We reviewed every application that came in ‚ literally hundreds of them — and we’d narrow it down multiple times until we got a slate together. And that’s after doing at least one round of live interviews at the regional level."When Romney took office, he wanted to streamline and centralize the process, so he dismantled the regional committees and established one statewide, 21-member Judicial Nominating Commission to perform the same task. Jeffrey McCormick, an attorney with Robinson Donovan, now serves on that committee as a Western Mass. representative.

According to the current system, the committee begins with an initial ’blind’ review of applicants, then invites a number of them for interviews, followed by deliberations about their strengths and weaknesses and whether they would adequately meet current judicial system needs. A candidate must receive 13 votes from the panel to have his or her name sent to the governor’s office for final review.

"They’ve cut a layer in terms of active participation at the district court level,"Pelletier said. "There’s also no more participation from the bars in the manner that used to exist.""I thought former Gov. Cellucci had an interesting way of managing the process,"John Sikorski, another Robinson Donovan attorney, said of the previous, regionalized approach. "Romney said he wanted to take politics further out of the process and set up one panel. And Jeff is the only person from the Pioneer Valley on that committee."In the Public Eye

Scott sees a flaw in that system — the fact that the public has no say over a judge’s activities once he or she ascends to the bench.

"Judges should be certified by the people,"Scott said, stressing, however, that this concept is much different than demanding that judges be elected.

"When you say elected, that means a judge has to go out and campaign, raise money, put up signs, shake hands, all that,"he said.

Under his idea, judges would still initially be appointed by the governor to a set term — perhaps six years, he said.

At the end of that term, on Election Day, the judge’s name would automatically appear on a ballot in the county in which he or she serves. In addition, the judge’s sentencing record for major crimes, as well as his or her bail-setting record for those offenses, would be published in newspapers and distributed via public-access television using public funds.

"Then the people will make a decision when they go into the voting booth — should this judge be retained, yes or no?"Scott said. "If more than 50% of the voters say yes, they retain their job. If more than 50% say no, they’ll have to get another job.

"They would be running against themselves — their record and their service to the community,"he continued. "At the present time, judges are not accountable to anyone, which violates Article 5, Part 1 of the Massachusetts constitution, which states that elected officials and judges are accountable to the people — that means us. And right now, they’re not accountable to anyone."Pelletier disagrees, saying the present appointment system provides plenty of checks and balances, and subjecting judges to what amounts to a politicized process would not result in the best candidates serving on the bench.

"There’s a distinct difference between the understanding of a judge and that of a layperson or even a chief of police,"she told BusinessWest. "A judge may be forced, because of legal problems, to release people. We see it all the time, and it’s not the judge’s fault. It’s easy to attack that judge if there are problems that result in an appearance to the outside world of being ’soft’ on crime, but it’s much more complex than that."Pelletier said that, during the Cellucci administration, four vacancies arose on the Supreme Judicial Court. Because it was impossible to seat four judges quickly within the confines of the system, the governor created, by executive order, a committee to facilitate the process, one that Pelletier was called to serve on.

"We interviewed every individual who applied, and the level of legal sophistication was extraordinary,"she said. "Many of these people were brilliant attorneys or jurists, or appellate judges seeking to go to the top level, but they were not political beings. We would not have been fortunate enough to have the four judges that were appointed had the process not been apolitical."Doing Their Duty?

Such talk doesn’t appease Scott, who had legislation filed last year to get the state to conform to his interpretation of its Constitution. But he said the bill was reworded in a Senate committee to the point that nothing would change; he’s now working with local lawmakers to file an amendment.

"People rely on judges to protect them, along with police and the district attorney. Judges have failed in their responsibilities,"he said, returning to the convenience-store murderer. "The perpetrator should have been sentenced to a minimum of three years in prison (for the original robbery), and the guy wouldn’t have lost his life.

"I’ve got many stories like that, and it all boils down to accountability. Some of the judges’ defenders say I’m using anecdotal examples, but it isn’t anecdotal to those people who are the victims, is it? The bottom line is that judges are not accountable."Pelletier said that opinion would not be widely held in the legal community, and that it’s easier for an outsider to attack a judge without knowing the complexities of the system. Even though Scott is not calling for a system that requires judges to campaign, she still worries about anything that would politicize the process.

"I certainly would not favor it,"she said. "Doing that would not allow a person without a political personality — but who has a great legal mind — to get on the bench."For some, however, what constitutes a great legal mind — and what process should be used to determine that — remains an open case.