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Panel Rejects Marshall’s ‘Spin’ on Report About Her Lack of Leadership'Confusion' Reigns; ‘Sweeping Changes' are Needed
April 2003 Print Edition
By Ed Oliver
When an independent panel reported last month that the courts are "mired in managerial confusion" and in need of "sweeping changes," Chief Justice Margaret Marshall responded with "spin" when she released the report, which had been done at her request and had been studied by her before its release.
A spokesman for the panel rejected much of Marshall's "spin" when questioned by MassNews.
However, Marshall's "damage control" was successful among all the media except for MassNews. Marshall claimed that the panel recognized the "excellence" of the decisions of the courts. She said the judges must now "elevate management in our courts to that same level of excellence."
But when questioned by MassNews whether they had studied or measured the quality of judicial decisions, and if so, by what means, spokesman John Lamontagne of Morrissey & Company, told MassNews that the panel was mainly going by the long history of the Massachusetts courts.
"The committee was not asked by the Chief Justice," he says, "to look at the quality of decision-making. In the report, the committee makes reference to the court system's longstanding 'reputation' for sound decision-making and the fact that high-quality decisions are often undermined by slow action, high cost and poor service. The committee did not specifically review decision-making practices, nor was it asked to do so."
The spokesman says that many at the courts believe they are doing a good job. "However," he tells MassNews, "during the six months the committee was working, committee members and staff spoke with 165 people - lawyers, judges, clerks, legislators, litigants and many more. In those 165 interviews the vast majority of people agreed that while the system is slow and poorly managed, it does follow solid judicial principles. Litigants may disagree with individual decisions, but system-wide there was overall agreement that decision-making was sound."
This means that the "excellence in the substantive decisions of the judiciary" claimed by Justice Marshall and the panel was not based on a study of public complaints, recidivism rates and appeals, but was based on the opinion of mostly insiders with a vested interest in maintaining the illusion of justice.
The panel was headed by J. Donald Monan, S.J., Chancellor of Boston College. Vice Chairs were: Patricia McGovern, former state Senator and now Senior Vice President at Beth Israel Deaconess Medical Center; and William C. Van Fassen, Chairman of Blue Cross and Blue Shield of Massachusetts. Members were: Charles D. Baker, President of Harvard Pilgrim Health Care; Wesley W. Marple, Jr., Prof. of Finance and Insurance at the College of Business Administration at Northeastern University; Ralph C. Martin II, former District Attorney of Suffolk County and now a partner at Bingham and McCutchen; Judge A. David Mazzone, U.S. District Court, Boston; and Dorothy Terrell, a "seasoned executive and business leader in the Commonwealth."
Attorney Barbara Johnson, an outspoken critic of the courts and a former gubernatorial court reform candidate, tells MassNews, "The corruption in our courts is rampant. Had the prestigious committee members studied the Juvenile Courts or the Probate & Family Courts, the committee could not have reached that conclusion. They would have seen a paucity of written substantive decisions to come out of those two divisions of the Trial Court which handle 20 percent of the business, much of it in secret behind closed doors."
(The committee did recommend that the position of Chief Justice of the Trial Court be eliminated. That position is now held by Barbara A. Dortch-Okara, who immediately complained angrily. Many wonder if the move is a backdoor method of removing Dortch-Okara because she is perceived to be part of the problem.)
Atty. Johnson continued: "For some time now, I have been seeking to abolish judicial and quasi-judicial immunity, subjects prominent on my website. For some time, I've called for demonstrations in front of courthouses - as other brave souls have done - to call attention to the corruption. My thought has been that if a good lawsuit or two were allowed against a corrupted judge and another one or two against those dolts the court appoints to interfere with family relationships, the judges and others would clean up their act immediately."
Committee spokesman Lamontagne tells MassNews, "The committee kept ongoing dialog with both the Probate & Family and Juvenile Courts. For the Probate and Family Court, they talked to their administrative office at least on five occasions. Although the report did not include specific analysis on the department in the report, the committee did look at their case management statistics by division and spoke extensively with the administrative office about case management and statistical tracking.
"As for the Juvenile Court, in addition to the court visits, the committee also visited their administrative office and spoke with them on a number of separate other occasions. While the Report did not focus specifically on the Probate & Family and Juvenile Courts, many of its findings and recommendations were influenced by those conversations."
Atty. Johnson tells MassNews, "I predict it is just another expensive report that will not lead to change thoroughly or swiftly, if any change is made at all." But others disagree, saying that many people are deeply upset with the system.
While the court report for the most part stayed away from human-interest stories and concentrated solely on management, it must have been deluged with horror stories to the point where it couldn't help but mention a few of them, which helps to validate the stream of complaints coming into MassNews from families suffering under the tyranny of Massachusetts Courts.
The panel wrote: "One clerk-magistrate was accused of over 100 acts of misconduct over a period of years before action was taken. This misconduct included slowing the handling of cases filed by lawyers he disliked, suggesting that a court employee "go commit suicide," and illegally attempting to influence the outcome of a criminal case."
In another example, "A convicted rapist was free for 16-years before serving a day of his prison sentence because of alleged health problems, missing and inaudible court records, and two appeals that took years to navigate the Court system. Until the victim herself filed a motion with the Supreme Judicial Court, no action was taken."
In yet another egregious example, the report tells how a set of siblings had to spend their elementary school years in foster care while the courts took five years to terminate their birth parents' custodial rights. The committee took care to frame this particular example as a problem only because there existed "excellent potential adoptive parents" waiting in the wings during that time.
There are numerous cases similar to this, however, of loving birth parents desperately fighting the state for years to get their kids back. The mainstream media routinely blacks out such reports, preferring to concentrate on carefully selected cases designed to generate calls for more funding of social services and increased scrutiny of parents by the state.
Echoing what MassNews has written in the past, the Committee said, "These are but a small sample of the many grossly mishandled situations brought to our attention. During visits to courts across the Commonwealth, many stories of justice denied through delay or excessive cost came to light."
What about justice denied through biased, unfair, illegal, incompetent and improper judicial decisions? The Committee was not charged with examining judicial decisions, but it was possible to get a glimpse of their thinking.
In the introduction to the report, the Committee offered the opinion that "the judicial decision-making in our state has a historical reputation for quality that is second to none." No one would disagree that the state's courts have a long and proud history of excellence. But what is their reputation today?
On another early page, the panel wrote, "Many observers believe that the courts almost always 'get the right answer' in legal disputes."
Who were those "observers?" Do they know about the fathers and families who regularly take time off from work to hold signs and cry for justice outside Family Courts and on the Statehouse steps? Have they heard that the Holyoke Police Chief is so disgusted with judges letting dangerous criminals walk that he is spearheading a Constitutional Amendment campaign to make judges more accountable to the people?
The report makes numerous flattering references to a court system that turns out "high-quality judicial decisions," which is assumed to be the norm.
Even when the panel recounted the few anecdotes about the children in foster care, the rape victim and the magistrate from hell, it softened the blow by characterizing those episodes as management failures and examples of how "poor delivery of a sound judgment undermines quality justice in Massachusetts."
But most observers say this was a startling report, considering that it came from a group of leaders who had been appointed by Chief Justice Marshall herself, only last August. The question, they say, is whether Margaret Marshall will be successful in putting it back in the file to die a quiet death.
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