7 v CLERK'S COPY COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPREME JUDICIAL COURT NO. SJC-OE-085 IN THE MATTER OF THE BOSTON MUNICIPAL COURT ;s DEPARTMENT OF THE TRIAL COURT Report of Special Master and Commissioner Dean Paul R. Sugarman Suffolk University Law School 41 Temple Street Boston, MA 02114 February 4, 1991 TABLE OF CONTENTS I . INTRODUCTION 1 1. Order Appointing Special Master and Commissioner 1 2. The Boston Globe Series 1 3. Methodology of Investigation 3 II. HISTORICAL PERSPECTIVE, STRUCTURE, ORGANIZATION AND PRESENT OPERATION OF BMC 12 1. Brief History of the Boston Municipal Court and the District Courts 12 2. Efforts to Reorganize the Courts 18 3. The Court Reorganization Act of 1978 21 4. The Trial De Novo System 24 a. Criminal Jurisdiction of the District Courts and BMC 24 b. Trial De Novo Prior to 1979 25 c. Trial De Novo Changes of 1979 26 d. The Debate over Abolition of De Novo 28 5. Budget and Physical Facilities of BMC 30 6. Case Load of BMC 33 7. Administrative Structure of BMC 36 8. BMC Probation Department 37 9. Operation of BMC Primary Court for Criminal Business 3 9 10. Operation of BMC Jury-of-Six Session 3 9 11. Assignment of Judges, Clerks, and Cases to Sessions 51 a. Assignment of Cases 51 b. Assignment of Clerks to Sessions 55 c. Assignment of Cases 56 12. Conferencing of Cases 57 13. "Admission to Sufficient Facts" and "Continuance Without A Finding" 60 14. Suffolk County District Attorney's Office 62 15. "Operating Under the Influence" Cases 68 16. Tape Recording of Proceedings 75 a. History of Rules for Tape Recording of Proceedings 76 b. Current BMC Rules for Taping 79 c. Purpose of Tape Recordings 82 d. Taping Procedures and Equipment in the BMC 85 III. STATISTICAL STUDY 93 1. Introduction 93 2. The Globe Statistics 94 3. Methodology Used in this Report 99 4. Analysis of Dispositions for Individual Lawyers and Judges 100 IV. BMC JUDGES OBJECT OF MEDIA ATTENTION 114 1. Chief Justice William J. Tierney 114 2. Judge Walter Hurley 119 3. Judge John A. Pino 126 iv ACKNOWLEDGEMENT When this task began, the only certainties were that it would consume a large block of time over a relatively brief period, and that it would involve the acguiring and sifting through huge volumes of information. Having in mind that the Order of the Supreme Judicial Court was not accompanied by a staff or a set of printed instructions on where, or how, to find such a staff, the job ahead appeared more formidable than one would care to imagine. This problem was soon solved by the presence of two people who made the endeavor possible. The first, W. Thomas Smith, Esq. , my former law partner, a capable and experienced trial lawyer's trial lawyer who is not only highly intelligent and efficient, but when the pressures mount, unflappable. The second, Professor Marc G. Perlin of Suffolk University Law School who, in addition to his brilliance, and abilities as a teacher, is an accomplished scholar, author and researcher. Both Mr. Smith and Professor Perlin possess the insight, eye for detail, dedication and practical approach to problems that was required. Without the efforts of Mr. Smith and Professor Perlin throughout the course of this study, the job could not have been done. They have my utmost respect and gratitude. PAUL R. SUGARMAN INTRODUCTION 1 . Order Appointing Special Master and Commissioner On October 3, 1990, the Supreme Judicial Court entered an Order (Appendix A) appointing a "Special Master and Commissioner to conduct a prompt and thorough administrative inquiry into alleged improprieties with respect to preferential treatment of attorneys by certain justices of the Boston Municipal Court." The Special Master and Commissioner was also ordered to file a report with his findings, conclusions and recommendations, and also to "...make such recommendations as he may deem appropriate to the [Court] with respect to indications or findings of misconduct, if any, on the part of any justice, officer or employee of the Boston Municipal Court." The Special Master and Commissioner was given the power to subpoena witnesses and to administer oaths. This report is submitted pursuant to the Order of the Court. 2 . The Boston Globe Series Although not referred to in the Order, the action of the Court followed a series of five articles in the Boston Globe published on September 23, 24, 25, 26 and 27, 1990. (Articles appear as Appendix B.) The series prompted much media comment and attracted wide public attention. Four of the articles (September 23, 24, 25 and 26, 1990) referred to certain perceived practices at the Boston Municipal Court Department (hereafter "BMC"). Two of those articles (September 25 and 26, 1990) dealt 2 with those issues in depth. More specifically, the articles covered the so-called " jury-of-six sessions" at the BMC. In substance, they set out data purporting to establish that six attorneys described as "politically-connected" appeared frequently before three justices of the BMC (in cases over a five-year sample period, 1985-1989) and that the results achieved by those six attorneys before those three justices were better, by a substantial margin than those of other attorneys generally. The series put some emphasis on a numerical compilation of cases purporting to show a relationship between the six attorneys and the three judges in terms of better results. The three BMC judges named were Chief Justice William J. Tierney, Associate Justice John A. Pino and Associate Justice Walter Hurley. Of the six attorneys named, one was a member of the State Senate (Michael LoPresti, Jr.). Three were members of the Massachusetts House of Representatives during the period covered by the Globe series (Michael F. Flaherty, Alfred E. Saggese, Jr. and Salvatore F. DiMasi) , one a former Plymouth County District Attorney (Thomas E. Finnerty) , and a former member of the Massachusetts Senate, House of Representatives and presently Associate Counsel to the Senate (George V. Kenneally, Jr.). Although there are some references to other judges and other attorneys, the emphasis was on the three judges and six attorneys referred to above. The articles also set out certain anecdotal descriptions of and comments concerning specific cases which, according to the 3 series, tended, along with the other data, to establish preferential treatment. Although the Globe series covered several matters involving the BMC and other courts, the Order of the Supreme Judicial Court appointing the Special Master and Commissioner referred to an "administrative inquiry into alleged improprieties with respect to preferential treatment of attorneys by certain justices of the Boston Municipal Court." Every effort was made to stay within the confines of the subject matter of the Order. For example, other matters reported by the Globe , including matters in other courts, work habits or bail fees, were not investigated. Indications or findings of misconduct that may have been uncovered during the course of the inquiry are, in accordance with the Order, reported. Although the Globe series contained allegations prompting inquiry, this investigation was conducted independently with its own methodology. 3 . Methodology of Investigation This administrative inquiry began, using the Globe series of articles as a starting point. The reason was that the articles themselves contained specific allegations which needed investigation, and the articles raised other questions concerning the conduct of the BMC and certain of its personnel which 4 required answers. At first the inquiry concentrated on the three judges and six attorneys specifically named in the Globe articles. However, as will be set forth below, as the inquiry proceeded, a thorough review of all BMC judicial and many non- judicial personnel was conducted. Further, the inquiry focused almost exclusively on the BMC's criminal jury-of-six sessions. The Globe allegations were focused on these sessions, and as the inquiry proceeded, it became apparent for several reasons discussed in this report, that to the extent problems of the type this inquiry was commissioned to address existed, they would be most apparent in the jury sessions. Also, the inquiry did not consider matters arising from cases entered before 1985. The BMC tape library did not contain recordings of proceedings predating 1986 making investigation of such matters more difficult. 1 Also, the judicial personnel in the BMC were significantly different before 1985, making an inquiry into conduct before then less relevant to the present operation of the court. In addition the Globe generally used the period from 1985 to 1989 for its articles. Finally, some practical limitation in scope had to be considered. The inquiry began with an attempt to understand the general operation of the BMC and, in particular, the jury sessions. A thorough review of the entire process was conducted. Each of the 1 As discussed later in Section II. 16, the tapes had been erased in accordance with the applicable BMC rule. ; specific cases mentioned in the Globe series where there was an allegation which was considered subject to this inquiry was reviewed and investigated. Then, as other matters were brought to the Special Master's attention, through testimony, interview, or review of dockets or tapes, these were followed up with a thorough investigation. The techniques that were used during the course of the inquiry were: 1. Testimony under oath stenographically transcribed; 2 . Informal interviews 3. Examination of BMC docket sheets, case files and probation records of specific cases; 4. Examination of district attorneys' files and police records for specific cases; 5. Review of original BMC court tapes; 6. Review of BMC files, internal memoranda and regularly generated reports and statistics; 7. Statistical survey of BMC criminal cases with models and analysis generated with the assistance of a consultant; 8.