PITTSFIELD — Berkshire District Attorney Andrea Harrington took an unusual step last month: She called the judge who regularly presides over her district court cases a “significant threat to public safety” and asked Judge Jennifer Tyne’s bosses to remove her from the bench.
In the end, Harrington’s bid to oust Tyne failed when, on Monday, the chief justice of the district court system said he could find “no factual basis” to back the district attorney’s allegations against the judge, claims that ranged from “dangerous rulings” to “hostile treatment of victims and prosecutors” in the Berkshire District Attorney’s Office.
Instead, Paul C. Dawley, the chief justice who investigated Harrington’s claims, praised Tyne’s “careful and thoughtful analysis” and called her rulings “properly within the bounds of lawful judicial discretion.”
The matter now is coming to light because The Eagle recently obtained a copy of the 3½-page letter that Harrington sent to three of Tyne’s superiors, as well as the chief justice’s response to it. Harrington also had sent Tyne a copy of the letter.
The move appears to have set Berkshire County’s legal community abuzz over what represented a direct attempt by a prosecutor to unseat a judge whose rulings she strongly disagrees with and, in this case, a jurist who had been, to this point, widely praised as fair and impartial.
It’s not unusual for prosecutors to grouse when they disagree with a judge’s ruling, and in her letter, Harrington acknowledged that her request that “Tyne be precluded from presiding over criminal cases in Berkshire County” is a “last resort.”
Tyne, one of more than 160 district court judges in Massachusetts and one who presides at Central Berkshire District Court in Pittsfield, was nominated for the job by the Baker administration in 2017.
At that time, Tyne had nearly 22 years as an attorney, in roles ranging from private practice in elder and real estate law to a prosecutor in Berkshire District Attorney David Capeless’ office, and as a public defender and appeals attorney for indigent clients in criminal cases. When she was nominated, Tyne also was the district court supervisor for Berkshire County’s Committee for Public Counsel Services, the group of attorneys who represent defendants who can’t afford a lawyer.
At her October 2017 nomination hearing in Pittsfield, prosecutors and defense lawyers praised Tyne. Nathaniel Green, the supervising attorney for the county’s Committee for Public Counsel Services office, commended Tyne for her “keen legal mind and good common sense.”
“She is patient and courteous. She is the fairest person I know,” Green said.
Then the county’s first assistant district attorney, Paul J. Caccaviello, who later would face, and lose to, Harrington in the district attorney’s election in 2018, was at Tyne’s 2017 nomination hearing and said her competency, concern and care “will serve her well on the bench.”
Tyne later was confirmed by the eight-member Governor’s Council, which reviews and approves judicial nominations.
In her complaint, Harrington said “Judge Tyne’s hostility to victims creates a level of risk to the community such that my failure to alert you would make me complicit in the inevitable future results of [Tyne’s] disregard for public and victim safety.”
Harrington based her allegations on Tyne’s pretrial rulings in seven criminal cases, including a case involving a recent homicide victim. Harrington argued that when Tyne didn’t immediately agree to order Lemond E. Grady, of Pittsfield, held without bail on various assault and battery charges, it set in motion events in which the man he was charged with assaulting “murdered” — Harrington’s word — him.
The victim, Edward Jennings, of Pittsfield, later would be charged with killing Grady on North Street in April.
But, an Eagle review of the audio recording in the Grady case, specifically, a pretrial hearing in December, indicates Tyne determined that Berkshire Assistant District Attorney Stuart Weissman had not met the burden of proof necessary to show that Grady was a danger to the community who should be held without bail.
In March, the parties were back in court after Jennings claimed that Grady had been inside his apartment building and threatened him, actions that would have violated Tyne’s previous orders warning Grady to stay away from Jennings. Prosecutors again moved to revoke Grady’s bail, based on an unsigned and, at times, illegible statement Jennings allegedly had written at the Probation Department.
“I’m actually leaning towards having the commonwealth bring the witness in,” Tyne said, referring to Jennings, “rather than just go on a statement that it’s hard for us to read and understand,” according to the transcript.
Tyne ultimately asked Harrington’s assistant district attorneys to bring Jennings into court to testify in person about Grady’s actions. They agreed.
In a hearing four days later, Assistant District Attorney Weissman told another judge who was presiding at that day’s hearing that Jennings did not respond to a court summons.
“The commonwealth will continue to try to reach out to [Jennings],” Weissman told the judge, “but at this point, we can’t go forward,” according to audio from that hearing.
Jennings is being held without bail on charges he fatally shot Grady.
In her complaint, Harrington didn’t acknowledge that her prosecutors couldn’t produce Jennings to testify in person or that they asked Tyne to rely instead on the unsigned note they said Jennings wrote as reason Grady should be held without bail. Harrington also didn’t include that Tyne didn’t want to go on the “hard to read and understand” statement. Instead, Harrington wrote to Tyne’s bosses that Tyne had “inexplicably denied” prosecutors’ request to hold Grady without bail in December and again denied prosecutors' request in March.
In an interview with The Eagle this week, Harrington refused to answer if she personally had reviewed the audio and transcript of the Grady hearings and the others in question before lodging her complaint against Tyne.
“I clearly stand by everything that I wrote,” Harrington said. “I’m elected by people in this community. It’s my responsibility to use my position to protect public safety and to ensure fair treatment of people in the courts. So, I used what avenues were available to take by sending a letter to the chief justice ... and I outlined all of my concerns in the letter.”
Harrington, a first-term district attorney who campaigned in favor of criminal justice reform, has steered away from the traditional cash bail system. Instead, Harrington’s office has expanded its use of dangerousness hearings, which can keep a person accused of a crime in jail awaiting trial for months if a judge finds them to be a danger to the community.
In 2018, the year before Harrington took office, there were just 53 dangerousness hearings in Berkshire County’s three district courts. In 2020, there were 151, a nearly threefold increase. Superior Court data from those same years shows a similar trend, with seven dangerousness hearings in 2018 and 34 in 2021.
While Harrington argues that the cash bail system has kept too many people behind bars simply because they couldn’t pay bond, others say the increased use of dangerousness hearings is hurting the very people she set out to help — those on the fringes of society.
In her letter, Harrington wrote that the Grady case and six other examples comprise a “consistent and troubling pattern of rulings” that she and her assistant district attorneys have observed and that affect “victim’s rights, danger assessments, pretrial detention requests and dispositions that undermine the efforts of victims to secure protection and justice in our Courts and put people at risk.”
In her Eagle interview, Harrington was asked if prosecutors in her office would request that Tyne recuse herself from involvement in their criminal cases. Harrington said they would not.
“We are professionals here, and we will continue to do our job professionally as we’ve done for the last two-and-a-half years,” Harrington said.
In her other examples, Harrington also criticized Tyne for an “often dismissive” and “frequently hostile” demeanor who “chills a victim’s right to address the court.”
Dawley, the chief justice of the district courts, went on to dismiss these and the entirety of Harrington’s claims in a 199-word, three-paragraph statement released to The Eagle on Monday.
“In reviewing all of the cases and listening to the courtroom recordings in the cases that were cited by the District Attorney in support of allegations contained in the letter, I did not hear anything that resembled hostile or discriminatory conduct by Judge Tyne,” Dawley wrote in his statement summarizing his findings. “Based on the information provided to me, there is no factual basis for me to confirm the District Attorney’s serious allegations.”
Dawley concluded, “In response to the claim that the decisions of Judge Tyne pose a threat to victims and the public safety of Berkshire County, my review of Judge Tyne’s handling of each of the cases cited in the letter reflects careful and thoughtful analysis on her part and was properly within the bounds of lawful judicial discretion. Judges are appropriately afforded broad discretion under our laws in making decisions that implicate sentencing, detention, revocation and bail because such decisions must be individualized to the crime and the defendant.”
In her interview, Harrington told The Eagle that her concerns about Tyne have existed for a while. With “few avenues to address concerns with the conduct or decision-making of a trial court judge,” Harrington said she opted to report those concerns to the “decision makers” of the district court, rather than to submit a complaint to the Commission on Judicial Conduct. In Massachusetts, the Commission on Judicial Conduct investigates complaints of judicial misconduct against court judges.
Tyne does not appear in any public matters before the commission.
‘Ex parte’ concerns
Others in the county’s legal community are raising concerns about Harrington’s letter, too, but not as it concerns Tyne.
Defense attorney Timothy Shugrue, whose client, Eamonn Percy, is among the cases Harrington cited in her complaint against Tyne, said the district attorney’s letter constituted what is referred to in the legal profession as an “ex parte” communication about an open criminal matter. That is when one party communicates to a judge directly about an open criminal case without including the other party, in this case, Shugrue and Percy. In Massachusetts, lawyers are prohibited from ex parte communications without prior authorization.
Shugrue says that is what Harrington did here. He said he will be filing a motion to have a copy of her letter turned over to him and his client.
“Because that’s what I’m obviously the most upset about: There was a communication about my client, his case, with three judges, without me being even apprised at all, not even a courtesy copy sent to me,” Shugrue said.
The letter prompted defense attorney Robert Sullivan, who is considering a run for the office of Berkshire district attorney, to call for Harrington’s resignation.
In a statement posted to social media, Sullivan said Harrington ran “afoul of the ethical rules” regarding ex parte communications and called Harrington’s letter an “attack on the system through completely improper channels.” He also pointed to a number of other incidents, including when Harrington was stopped while driving unlicensed and when she fired her records access officer who, Sullivan said, “wanted to follow the law and not hide public information.”
“As a longtime practitioner in Berkshire County, as both a prosecutor and a defense lawyer, I am compelled to call for her resignation,” Sullivan wrote.
Sullivan praised Tyne as a jurist. “Judge Tyne is a fair and impartial jurist who will hold any attorney accountable for not being prepared or not performing to the high standards of the practice of law, regardless of gender and race.”