Berkshire District Attorney Andrea Harrington’s misguided and foolish shot at a local judge last month sets an ominous precedent.
Judges wield great power, and their decisions and behavior are fair subjects of debate. Procedures are in place to review judicial activity. An independent judiciary is a cornerstone of our democracy, and to preserve that independence, a judge’s right to respond to criticism is extremely limited. So, if anyone, especially the county’s chief law enforcement officer, chooses to step outside of the prescribed procedures to challenge a judge’s actions, decency requires that such criticism be supported with solid evidence.
In her letter to District Court Chief Justice Paul Dawley, Ms. Harrington made sweeping allegations that Judge Jennifer Tyne displayed “hostility to victims and prosecutors,” claiming the judge who regularly presides over Berkshire district court cases put our community at risk. Ms. Harrington’s letter shows neither care in preparation nor evidential support. Chief Justice Dawley was unequivocal in denying Ms. Harrington when he wrote, “there is no factual basis for me to confirm the District Attorney’s serious allegations.”
Allegations of hostility and unfairness can be difficult to prove, but all district court proceedings are recorded and the recordings are available to the public. The Berkshire Eagle repeatedly asked Ms. Harrington if she listened to the recordings of the proceedings that gave rise to her letter, but she refused to answer the question. We take her refusal to answer this simple inquiry as a denial, as no other interpretation makes sense. As is often the case, the DA was not present for the hearings in question, but the recordings are readily available and would be easy for her office to access. Chief Justice Dawley listened to the recordings, and so did The Berkshire Eagle. It was shameful and lazy for the district attorney to challenge a judge’s integrity without taking the time to hear exactly what the judge said in the cases that the DA’s screed addressed.
The only matter that Ms. Harrington’s letter spells out is the case involving Lemond Grady and Edward Jennings. Her description ends with the bold-faced italicized statement that “… the victim [Mr. Jennings] murdered Mr. Grady.” Mr. Jennings has not been found guilty nor admitted his guilt of murder. It would be unethical for this newspaper, or any other news organization, to call someone a murderer or a felon until he or she is actually convicted. This is a distinction with a profound difference, especially to lawyers and judges.
Ms. Harrington’s misuse of the term “murdered” betrays a sloppiness that pervades her letter. She wrote of her “profound respect for the separation of powers between the judiciary and the Commonwealth.” Prosecutors proceed on behalf of the people of the commonwealth, but they do so as part of the executive branch. Article 30 of the Massachusetts Declaration of Rights succinctly states that: “… the executive shall never exercise the legislative and judicial powers, or either of them ….” We believe that the chief law enforcement officer of our county should be aware of this distinction, especially in the context of an attack on the integrity of a sitting judge.
More importantly, an examination of the details of the handling of the Lemond Grady case by the DA’s Office displays a similar sloppiness. Ms. Harrington’s letter raises the scandalous inference that the local judge’s failure to grant her office’s request to revoke Mr. Grady’s bail somehow led to his being killed a month later.
On the recording of the proceeding, the judge calmly and politely told the assistant district attorney that she wanted to hear from the victim before acting on the request to revoke Mr. Grady’s bail. The ADA did not object or push back in any way to the judge’s request, perhaps because it was reasonable. The judge continued the hearing to a date that the ADA chose, and at that hearing, which was before a different judge, the same ADA said he could not proceed because the DA’s Office was unable to contact Mr. Jennings, the alleged assault victim.
The ADA did not request more time from the judge for his office to locate the victim. Despite the judge’s offer to bring the matter forward if and when the DA’s Office did find the victim, there were no further proceedings during the five weeks before Mr. Grady’s death. It is fair to infer that Ms. Harrington’s office either lost sight of the complaining witness in a case alleging a violent attack or they did not care enough to do the ordinary due diligence of maintaining contact.
It is worth noting that Ms. Harrington, in submitting her letter to Chief Justice Dawley, neglected the proper channels for calling into question a judge’s behavior on the bench: submitting a complaint to the Commission on Judicial Conduct. Moreover, Ms. Harrington’s haphazard attempt to have Judge Tyne “precluded from presiding over criminal cases” in the county is, among other things, a blatant effort at judge shopping on a grand scale. Her letter attacks Judge Tyne for fostering widespread judge shopping among the defense bar, although this allegation is not supported by any statistical or even anecdotal evidence.
We are not the only ones troubled by this ethically bankrupt move. The Massachusetts Association of Criminal Defense Lawyers condemned the letter, saying Ms. Harrington sought to “undermine the independent decision-making of a sitting judge by engaging in an ex parte communication with the Court about pending cases,” calling it an “indefensible and unethical effort.” Ex parte communication occurs when one party communicates directly to a judge about an open case without giving the other parties notice of the communication. If allowed, such communication could undermine our adversarial system of justice. In Massachusetts and elsewhere, lawyers are prohibited from engaging in it except in the rarest circumstances.
The Massachusetts Lawyers Weekly, the legal journal of record in the commonwealth, published an editorial calling Ms. Harrington’s letter “an extreme step,” and “not the appropriate mechanism for addressing concerns over a judge’s decisions or demeanor.” The editorial concludes that “what she should not do is attempt an end-run around the process.” The Lawyers Weekly also noted that Ms. Harrington’s evasion of the prescribed avenues of redress “seems primarily designed to score points with voters.” This sad allegation is consistent with the complaints of two former, trusted employees of this DA’s Office who each cited a pervasive campaign culture when they left.
Prior to her election, The Eagle editorial board questioned Ms. Harrington’s ability to effectively administer the District Attorney’s Office if she were elected. Ignoring the well-defined avenues of redress and attacking Judge Tyne’s integrity with no evidence to support the attack reinforces the perception of an office that is dominated by a focus on politics over professionalism.
We urge Ms. Harrington to devote the remainder of her term to running the DA’s Office in the manner that brings honor to it and can earn the respect of the bar. In addition to serving the citizens of the Berkshires, such a commitment might prove to be Ms. Harrington’s most effective reelection strategy.