COMOMVEALTIE OF MASSACHUSETTS (BOSTON MUNICIPAL. COURT CENTRAL. DIVISION CCOMMORMEALTH OF MASSACHUSETTS ‘The Commonwealth respectfully moves for the recueal of Justice Raymond Dougan from thie pending case and from all criminal 2 pending in the Boston Municipal Court, and from presiding over any future proceedings in thie case or ‘any criminal cases. The Commonvesith believes that recuse? Ae required to ‘enforce society's legitinace expectation che judges aintais, in fact and appeatance, the conviction and discipline to resolve those disputes with Getachment and impartiality." citeoky v. onteed states, 510 U.S. S40, S64 (1994) (Kennedy, J.. concurring, with Blackmun, Stevens, and Souter, J0.). The wecusal of guage Dougan ie required as he lacks the appearance of impartiality, and an the historical record ne has established ie one from which an objective observer would have a reasonable doubt about hie impartiality and bias See $.9.0. Rule 3:09 Canon 2; In re United States, 441 P.3d 44, 65 (ist Cir, 2006) ("a motion to recuse Le a very serious matter end must have a factual foundation; it may take sone tine to butld the foundation." + Recueat se vequized here even if ‘the appearance of partiality thas) sciseinl when in fact there ts none. Ltecky, 510 U.S. at 563 (Hennedy, o., concurring, with Slackmin, stevene, and Souter, Ju.). Judge Dougen continues to enter ordere that fare contrary to law, are made to the benefit of detendante and to the detriment of the fair and impartial adninieteation of justice, and to the intersste of the Ccomonweslth sn an unbiased dudge. As an objective observer to proceedings before Judge Dougan could conclude that che proceedings are not fair, kecwoal ig required. “Justice suet satiety the appearance of Justice." United states, 441 F.34 at 68, quoting Liljeberg v. Health Services Acquisition Corp., 487 U.S. 847, 864 (1986) (internat quotation marke onttted) In Light cf the rule of law that, even were 9 judge oes not harbor actual bias, recusel is required where an objective observer might reasonably question the bias of inpartiality of Gudge Dougan, the Conmonweslth reepectéully suunite that this notion must be alloved.E. TWE STANDARD FOR RECUSAL: WHETIIER AN oBvECTIVE OBSERVER WOULD HAVE HBASOU TO DOUBT THE” IMPARTIALZIY ‘The authority for dinqualification arises fiom several sources: the constitution, the rules of court, and the comon Iaw. A motion for dioqualification may be preniaed fon the Massachusetts Declaration of ghts, Article 28, of the Judletal code of conduct, oF the comon law requisites of due process and a fair trial. Article 29 of the Declaration of Righta states: Bt te essential to the preservation of the rights of every individual, Ale life, liberty, property ‘and. character, that there be an’ smpareian Snterpretation of the lows, and adninisteation of justice, It ia che rane of every citizen to be tried by judges “ae free, inpactial and independent ad the lot of huranity will allow. °A rigid adherence co that principle is essential to the waintenance of free institutions. Tt hs been strictly upheld by decisions of the (Supeent Judietat] [cloure.* Comonweaith vy. Leventhal, 36¢ Meee. 718, 721 (3974). ‘Accord Conmonweaith v. Gogan, 369 Mase. 255, 259 (1963) Indeed, the requirenent of an unbiased tribunal 4s Fundamental te due process.* Kerd v, Monroeville, 408 ¥.8. 57 (1972), A fale teal ine feix tetbunal de a baste Fequirenent of due process." In re Murchison, 349 U.9, 233, 136 (2955). Article 29, 1ske the federal due proce clause, exacts judicial impartiality, and te "at least ae rigorous in exacting high standards of judicial propriety" fas is che Fourteenth anendeent. King v. Grace, 299 maae 244, 267 (2936) When 2 question of recusal {s raised, = “judge must vconsult firet hie own notions and conscience’ to dotormine whether he pooseases the capacity to rule fairly fat trial." Comonwealeh y. Daye, 435 Mase. 463, 469 (2001), quoting Lena ¥. Comonwealth, 269 Wass. S71, 575 (19761). The commonwealth aske this Court to make that TE this Court determines that it dose posses the capacity to rule fairly, thts court must nonethele vaieguality hingolt in a proceading in which nie impartiality might reasonably be questioned." Code of Judicial Conduct Canon 3{c) (1) (currently in effect). thie requires an “objective appraisal,‘* rather than a subjective one. paye, 435 Mass. at 469, quoting Haddad v. Gonzater, 410 55, 862 (2951). The Appents Court has stated that this requirement crack 28 U.S.C. § 485(a), Under which che standard ie “‘whether che charge of lack of impartiality is groundad on facte that woulé create a reasonable doubt concerning the judge's dmpartiality, not din the mind of the judge himself or even necessarily én thefnind of the Litigane filing the motion... . but rather in the ming of the reasonable man.’* Commonwealth v. Zine, 52 Mass. App. Cr. 130, 191 n.1 (2001), quoting tniead states ¥. Conden, 545 ¥.24 257, 265 (1st Cir. 2976), core. dented, 430° U.S. 909 (1977), The queation is how hie participation locke to the average person on the atreet.* zine, 52 Maes. App. Ct. at 131 nt. Recusal should be stowed whore there ie an appesrance of bias cr prejudice, there ie no requirement that an actusl subjective bias be present. ‘The average person cn the street would harbor a reasonable doubt about Gudge Dougan’e impartiality, where hhe has over many yeare in a variety of cases and contexte ignored, disregarded, or disobeyed the laws enacted by che Swthe decision to withdraw from a case at any stage ordinarily reste within the trial Judge's om sound Giecration. Conmemwesith ‘v. O'Connor, 9 Mase. ‘pp. ee 314,320. (1999), citing Commenwosith v. Coyne, 372 Nass: 599, 602 (1977); Commonwealth v. Canpbeli, 5 Rass. App. Ct 571, $87 (1977). Normally vecusal Ss Sequired only ‘when it ie show that che Judge hse a bias oF prejudice sgainee fa perty based on an extrajudicial source." O"Gonuor, Mage. App. ce. at “320, citing Comomesith v.. Leventhal 368 Maas. 718, 722 (3976); Campbell, 5 Mage. App. Ce. at 587; Fureado vy. Purtado, 380, Mana, i27, 151 (1380) (rorusat is mandatory wneve “Ietlhe. fudge developed the evidence against the defendant” or the sudge engaged ia Sactive imvoivenent in the presentation of the cane agninat Getendant”). Accord Richman v. Richman, 28 Mase App. 655, 667, rev. dened, 408 Mase. 1201 (1990). See aleo Commonwealth’ v. Williara, @ Maas. App. Ce. 283, 285 (1979) (a. judge who participated in greindictment investigation would be required to recuse) Jegisiature, the constitutional separation of povers, the rules of the court and the rule of lew, and hae crested an appearance of bias and partielity toward defendants and fegsinst the Cormonveaith, the vietine of crime, and the police efticers who enforce the laws and appear witnesses before the Court. ‘Judge Dougan’ conduct, as set forth below, sould cause an objective person to harbor s rensonable doubt about whether Judge Dougan te not fate, not impartial, and ie biased, and requires that he recuse himself fron presiding over cfiminal cases in the Boston Municipal XE. "THE FACTS AND ARGUIEAT 2 SUPPORT OF RECUSAL ‘The Court haa demonstrated over the years a pattern of @iaregard for the controlling statutes chat apply to various criminal cases, and hae engaged in a series of acte ‘hat over time have created a widely shared perception that the court is noe Ampactial. Not every instance of such conduct 1s known oF can be eet forth herein, but a variety of examples are provided hereinafter.perception of disregard for the IDE fo THE FACTUAL DATA Beamples ct the types of conduct that support partiality, and blas ie eet forth below. Suprene Judicial Court opinion regarding the Gusge’s disregard for the law and ia duty to ‘bey and eaterce the law aa written... Improper continuance to avoid 2 tendered ples, Bebruary 6, 2031 7 Commonwealth v. cooper. ‘ ‘Toking action favorable to a defendant and unlawfully interfering with the jurisdiction of the Appellate Division ‘of the Boston Munceupal court and usurping snd undermining che author‘ty fof a fellow judge on che Boavon Municipal Court. Unlawtully vacating other judges’ fail revoeation OFdersscreseres = ‘ unlawful sentencing ° Unlantully vacating guilty plea wreseuring a prosecutor to agres to an unlawful post-triel continuance and criticizing a Vnlawtully imposing a continvance without 2 finding afver conducting # bench trial ..essese+s Failure co provide defendance with the Statutorsly-nandated alien warnings under Gihe Improperly suppressing certificates of analysis of controlled substances for szrelevane and Impernisetble rossonessssss-s s+ Stated intention to improperly disaies cases in the future when a certificate of analysis hag not been prepared in dma cam the law, lack of fairness, .2 20. a a. Disregard for the privileged status of victim. ottice... * 3s Failing to follow the lay regarding the Glsclosure of the Adentity of a confidential Snfornant «-.e-ceseneee= a6 Refusing to make required written findings when imposing aluernative disposition under OL. CORRS cee . ” Inducing defendants to waive the constitutional Hight toa jury trisl and references to Ase Foputatien in courthouse... seteeenenes 38 Improperly inducing waiver o€ jury trtal and using two defense attorneya to engage in an ex parte contact with another defendant's attorney. «++. 42 Be parte ruling on a motion for discovery ...-s+.++ 42 Refusal to review an application for a search Gonder Biageeeeeseeee sasenevvenevs cies M6 Acquicting defendante in possousion of a firearm Supprension orders in firearm cases heard by ‘Saige Dougan in the Boston Municipal Courts esses. $0 zeeal of suppceenion ordere made by Saige Dougan Failure co follow controlling case law in firearm BUPDEOSELoN CAGES -ceeesecicescscesesearesesessesessy SD Pattern of discrediting police cestinony in order to achieve a specific outcone or to inet adge against appellate review..-..- A. Commonwealth v. Messiah Franklin, O7010C109~9 .ssssscisneststesees 1B, Commonwealth ¥. Robert Pleming, B.M.C. Yo. osoiseese-7 ee©. Comonveaich v. Millian Graham & Robert Hines, BNC. Now. 08020729 w 157-20. 54 BD. Commonwealth v. Allender Gooden, BMC. No. O702CRZ751; A.C. No. 2008-P 3540... 35 5. Comonwealth v. Matthew Hannan, 2.0C. No. F. Commonwealth v. Russell ones @ Victor Desesus, BMC. No, OB01IC419-7 € 421-710. 59 G. Comaneaith v. Keon Monteiro, B.M.C. No. O607CHISE2, A.C. No. 2008-PASIS..0.1sors. 89 CONCLUSION RE+ FACT PIXDIKG . « PINAL CONCLUSION... 4. SUPRENE JUDICIAL COURT OPINION REGARDING THE JUDGE’ [DISRKGARD FOR THE LAW AND HIS DUIY TO OBEY AND ENFORCE ‘THE TAN AS WRITTEN In the case of Comonuenith v. Quispe, 423 Wa 510 (2001), Judge Dougan announced he would continse to iunige caves in which persons were charged with operating under the influence of aleshol, contrary to statutory mandate, to avoid any potential future immigration consequences for the defendants, “unt. a court ‘specifically, in language that is iron clad, on belle me that I don’t have the authority. 1d. at 520 judge Dougan, prior to dianiesing the charge, had determined that the defendant was operating under the influence of alechol, and had noted that the police seport indicated that the defendant hed scored 0.16 on the breathalyzer test. fd, at 509 @ 9.2, Tm reversing hie improper dismissal of che charge, the supreme Judicial Court noted that Judge Dougan violated the legislative mandate of G.t. €. 90, § 24(1) (a) (21, and was constrained ko kay about this Juige: “(hlie personal views regarding che wisdom or propriety of a given law are irxclevant and Undermine the principle of separation of powers." id. at Similarly, in the case of Commonwealth v. jiorman Richardson, B.M.C. No, 9302¢Ri623, Judge Dougan allowed @ motion to suppress a firearm found in a motor vehicle. AE the ‘tine of the suppression hearing he wie epecitically apprived of the controlling care, Comonwoalth v. 1ieeli 436 Mass. Agp. Ct. 959, 959-60 (1983). Judge Dougan aia not foYlow that case from the higher court, stating, *until the Supreme Court certifies that case T would not allow that kind of search. the Appeste court with all due respect (inaudible). The Suprene Judicial court allows the Comonwesith's petition for leave to appeal (No. S9-1994- 0250), and the suppression order wae reversed oa appeal (Ac. Wo, 1994-P4 477). Commonwealth v. Richandeon, 38 Apps Ct. 1103 (2995) (rable) * The Guige’s continued failure to comply with the law in the ares of inmigration warnings and consequences is also Siscusced infra pp. 25-27, 285-7, 30-33.2. IMPROPER CONTINUANCE TO AVOID A TENDERED PLEA, Tapruary 6, 2011 comcarenlth v. Cooper fon February @, 2012 in the case of Commonwealth ¥. (Cooper, BNC No. L0DICRTI20, Justice ovean unlawfully continued the case for eix months, until August 9, 2011 4am the BMC, the defendant is charged with failure to register as a cex offender, in violation of Gt. ©. 6, 5 176H, The underlying offenses for which the defendant se requized to regiater ave two counts of rape of @ child and theese count of indecent ssaault and battery on 4 child, of which the defendant wae found guilty in 1968, the Getendant wae previously convicted of failure to sagt ‘The defendant ie currently indicted for the erine of sndecent yault and battery on a child in Hampden County indeed, a default warrant had previously issued against the Gotendant in that case. curtice Dougan was aware of the ending indictrent when the defendant was before the Court fon February 6, 2011 fon February 8, 2011, the defendant appeared in court and filed a plea cender, ae ie hie right under Gut. ¢. 278 518, The defendant sought ce plead guilty and receive seine served". The Conmonwealth sought fand one-half years, 18 monthe committed, with the balance suspended. Gustice Bowgan refused to accept the tendered plea, and continued the case until Auguat 9, 2012. the Judge stated thar if he accepted the plea without a final Ateposition of the indicted case he might be sore inclined ro adopt @ sentence more in keeping with the Comonwosten’ Fecormendation, while it wae more 1ikely thet the defendant would receive a disposition that he was comfortable with 1¢ he pending indictnent in Hampden was disposed of. cudse ‘bougan then vetumed the plea tender sheet co defense counsel and continued the BHC case simply to avait the curcone of the pending indicted case in Hampden County, 8 he marked the ca for a change of plea on the next date, August 9, 2012. ‘Justice Dougan’s action in contimiing the BMC case lune Auguet, and doting £0 without making any findings as to the prevention of injustice by this action, ie unlavful and improper. Juatice Dougan violated Mas crim. B 40, regarding continuances, and the clear ruling of this Court in Comonweatch v. Taylor, 428 Mase. 623, 626-630 (2899) (coneinuances may be granted only to provent injustice, and continuing 2 case simply to delay and Erustrate soving forward to trial is not permissible, further noting that even consentual continuances are not to be granted except to prevent injuntice). the lengthycontinuance wae not made to accomodate a busy trial Schedule but to avoid a trial or ples, and thus unlawfully violated the separation of powers set forth in the Constitution. See Taylor, 428 Wass. at 629-620. Justice Dougan’s action aleo interferes with the Getendant’s constitutional and statutory rights to decide ‘whether to tender a plea, and with his right to counsel Justice Dougan'e action violates Masa. K. Crim. PL 22, which prohibits a judge from participating in the plea bargaining process.” ‘Tuige Doogan's unlawful continuance was vacated by the Single sustice of the Supreme oudicial Coure, spina, Z., on Mazen 3, 2011. ON that date the Single Justice ordered that che case by renanded for assignment for trial co commence within eixty daye before a different judge. CComonwealth v. Cooper, §3-2011-0085. ‘That Judge Dougan acted in a manner adverse to the Administration of justice, and appeara to be biased and lack impartiality, 1¢ evident by the order that a aifterent Judge conduct the trial in chim ease 3 The Assistant District Attorney in the courtzcam, in her third Woek en the job, neither cbjectes nor agreed to the continuance, but merely said "thank you" at the end of the hearing. 3. TAKING ACTION FAVORABLE TO A DEFROANT AND UMLANFULLY EHCERPERING WITH THE JURISDICTION OP THE APPRLIATE DEVESION OF THE BOSTON MUNICIPAL COURS AKD USURDING AND UNDERMINING "HE AUTHORITY OF A PRULON JUDGE ON THE Ta the case of Comonwoalch v. Natchey Montagna, B.M.C. No. 0002087207, the defendant filed an ex parte notion for funda, seeking $2000 to retain an expert. This stowed in the amount of $1000 by Judge Saylor, who fled a written menorandim of decision on Decenter 3, 2008. The defendant filed a notice of appeal to the Appellate Division of the Boston Municipal court on Decenber §, 2008. the caso vas received in the Appellate Division on that same date, Mo, O801CVS296. On February 22, 2008, the appeal vas heard by the fopellate Division (melty, F.a., Forde © Ronquilie, 39.), and taken under advisement. On Apes a2, 2009, the eppeal was denied by weitten memorandum of decision, After arguvent of the appeal and before che dectaion, ‘Dusge Dougan conducted a suppression hearing on April 27, 2003. Tha Judge tock the ction te suppress under advisement. After diecuseion with defense counsel, during which be learned of the panding appeal of the moticn for funds, the dudge advised defense counsel co “renew the motion for funds with him, and to withdvaw the appeal. The Sudge then allowed the orally-nade “reneved" rotion forfunds. Judge Dougan failed to act impartially and failed to appear impartial. sudge Dougan acted isproperly in thie matter over @ motion over which he had no jursedietion, improperly usurped the authoriey of the Appellate Division; ‘and undersined the authority of Judge Baylor. the audge! conduct also failed to inculcate public respect for the judlctary and che rule of law. 4. UMaNruLiY VACATING OmMIER suDgES’ BAL REVOCATION In the case of Comenealch v George, ENC central Division 120xeRe480, Judge Zeugan vacated an order revoking the defendant's bail based on a new arrest while on bail As soon as he learned that the Comonwalth had filed petition secking a supervisory order fon the single Justice, Sodge pougan recatled tne parties to cout and vacated his ow unlawful order. See Commonwealth v. dearge 4 Judge Raymond G. Dougan, 89-2011-0811. Contrary to the Gisingenucus spin Me attorneys put on the matter in the pleading he filed in the single custice ‘Suge Dougan who made the factual statement that the bait revocation order was net for the legally requisite 60 day bot was ‘until today’, and of course, it was oudge Dougan, land not the prosecuter who had custody and control of the rmitcimis, the Court order that the defendant be brought to the Central Divieton so that detendant (ho wae An custody due to the bell revocation) woitld not be defaulted for falling to sppesr on the date previously scheduled in the Central Division. once he leamed of the filing of the petition, Judge Dougan conceded he had no Laweul authority to vacate the batl revocation order. ‘The Judge kriew when he acted that he had no authority to vacate the bail revocation order, not only because there fare several suprene Judicial Court published opinions on point, but lao because 9 Single Justice of the Supreme Judicial court had previously vacated euch an unlawful order by Judge Dougan, See Commonwealth v. Rose, S3-2006 0532 (BMC. Ma. O60LCRTEI3 (Guper. Ct. Mo. SUCR2O06 10362). im the case Roar cat judge Dougan vacated a bai revocation order that had been made by ancther judge. He G14 co on December 26, 2006. The Judge's action was contrary £9 well-estabi‘ehed statutory snd common inv. See Conmomwesiéh v. Pagan, 445 Mags. 315 (2005). once again, ‘the Comonveaith had to file a petition with the suprene Judicial court seeking to enforce the las, and the Single justice, Cordy, J., reversed hie unlawful order (Wo. 8° 2006-0892)The Judge's conduct wae not impartial, wae tn Alaregard of the law enacted by the Legislature, the rule of law stated by the Supzere dudsetal Court, and undermined che lawful exercise of authority of ansther Judge: 5. UMAMPUL smermCENG 1m Coneonwealth v. Jordan Hart, B.M.C. Wo. og0ises32- 7, dudge Dougan knowingly refused to sentence 2 defendant v0 the mandatory minime tie vequized for the crime of carrying @ fizearn in violation of G.t. ©. 269, § Lo(a) Sudge Dougan disregarded the statutorily required sentence by imposing a sentence mune pro tune to the date of the Getendant’s arrest, knowing that the defendant had not been held on ball in the case for that anount of tine, and wae not legally entitled to the reduction of hls sentence by approximately ix sonthe. At a minimum, the sentence a imposed had the effect of providing the defendant credit for time when he war in fact ferving the incarcerated sentence on his drug charges (thus every tro days of criminal sentence got turned into one day of tine served), wae in flagrant disregard of the statutorily mandated ‘sentence, vielated the separation of powers, and wa arbitrary ond capricious. “yen 4£ the defendant were entitled to sone credit for tine hold waiting triai on an wirelssed case, and not already: ae ‘the Comonwealth £4 8 petition tor a supervisory order under GL. ©. 211, § 3 with the Single Justice of the Suprene Judicial Court, No. $7-2008-0269. on cctober 19, 2009, the Single Justice, cordy, J., granted the petition and ordered the mune pro tune sentence vacated. The Single Justice vacated the sentence for two reasons: first, no sentence can be imposed “mune pro tune"; rather, the sentence must be inposed ag of the date of the guilty ples and then the nuaber of credite are written on the mittims ‘that commits the person to the house or prison (see .t €. 278, 633A); second, the defendant does not eam oF receive credit for “dead time’ on any case simply because be did not post Beil Imposition of s sentence une pro tune was plainly improper fer two reasons, Fiet, the Swrene suaicial Court hae described mune pro tunc orders as follows: The function of 4 mune pro tune order in general ig to. put upon the record and to render efticacicus sone finding, ‘direction or Bejediontion of the court made actually or inferentiaily “at an earlier” time, waich by accident, ‘latake ‘or oversight wae not made acter of record, or to validaze sone proceeding Actually taken but by oversight or mistake not Suthorized, or fo prevent a feilure of justice qredited to hin by the sentence he wae also serving on a Gruy conviction out of Dorchester, the Judge's action, end the arcunt of tine Gredived by ehis mune pro tune onder, id ‘uot accurately determine or apply ‘that time (if svailable) and was arbitrary and capriciousreoulting, directly or indirectly from delay in court proceedings ‘subsequent too tine when a Gudgeent, order or decree ought co and would have been entered, save that the cause wae pending Under advieenent Forking v. Perkine, 225 Mass. 292, 396-87 (2917). There te either statutory authority nor support in the case law for the use of @ mune pro tune order to inpore a sentence at starting prior to the date of a conviction, as was done in Secondly, 12 the case of Manning v. Superintendent, 372 Mase. 387, 396 (1977), the Supreme Judicial Court, tn the context of sesensing the availability af sentencing credit, noted: “Of course, no court would hold that a sentence takes ettect before it is imposed. AL the time the Judge heard the sentencing recomendations and announced that he wae going te accept the plea tender he stated az follows: The Court will accep the defendant's tender based on ye eaiked about at ide bar including the time thar Ne. Hare has epent incarcerated at various. points over che last to years. hod iv tg cho understanding of the court that he ‘has been held since Septerber 25, 2008, ot on bail oh thig matter but on other charges He is getting credit. for time fron Septenber 22, zoos. “Te ie essentially nine months. Recording of Court Proceedings, May 11, 2009, at 12400122 ‘Aa the Single Justice uted, the order of the Court as improper ae a mune pro tunc order, was improper as the imposition of 2 sentence taking effect before it xs imposed, and improperly credited the defendant with time he ae serving on an unrelated cast ‘The detendant waa, theefore, dizectly provided by the Judge with the Benefit of 225 days of time to be credited against hie sentence, when the defendant was lawfully fencitied to fever days, approximately 120 er #0, for the ima fron the date of his arrest and confinement to the Gave he posted bail combined with the tine be was held on atl on an acquitted firears case when he had not posted bail and was not serving a sentence on hie Dorchester drug case. The credit would be noted on the mittimin, oF calculated by the jailer. The ‘llega sentence threatened public earety, and provides evidence to the objectively reasonable observer that Judge Dougan is either biased in favor of défendante or ageinet the Conmonwesith, and has acted in disregard of the legislatively established mandatory einimun sentence. Ste Court ales acted with couplete disregard for the legisiacive enactments governing credit for tise awaiting eflal ae set forth in Got. c. 237, § 1298 and Gein C. 279,Second, in the cage of Comomvealth v. Cuaek and Stroup, B.M.C. Noe. O701CR7229 and 0701087230, Judge Dougan Aikewise imposed unlawful sentences and engaged in other conduct by which the appearance that he was not impartial arose, There, the defendanta were charged and tried tor the possession of eariiuana, in violation of Gil. ©. 94C, 534. me defendants had each heen arrested on Boston Comon, tenporartly detained on the Common long enough for standard booking in a cent get up on the Conman for that purpose, and then released back to the “Uenp Feat” at which each of then subsequently gave public speeches the sane day. Wetter wedant yap held in custedy for. even a ingle day avaiting tital, ae each was sumonead to court for a later date. After conviction the Judge waived ell tees and costs normally sesessed upon conviction without ‘any showing that the defendants, each of whom had privately retained counset, were indigent. The oudae in a0 doing violated Gut. ©. 2585, § 6 (650 ansesament to be paid to state treasurer upen alsdenasror conviction). The Judge also ordered each defentant co serve one day in the Howse: fof Correction and then eredited each defendant with one day: of time served. Thie credit, for time spent being booked fand then released on Boston Comon was plainly unlawtul. 2 ‘The waiver of the fees creates an appearance that the Judge Pursuant to Gt. @. 279, $33, 8 Judse imposing 3 bentence of incarceration “ahall order that the prisoner be Geened to have served a portion of ssid sentence, auch portion to be the munber of days spend by the prisoner in continenent pric to euch sentence awaiting and during trial.* A defendant ie only entitled co credit for the usber of daye ‘in confinement’ and not more than that. Conmonwoalth v. Morasee, 446 Ma naa, 116 (20089, Commomweaith v. Murphy, 63 Mase. App. Ct. 753, 757 (2005); Commonwealth v, Carter, 10 Ma . Aap. cb. 618, 620 (3960) While the statute does not define “in continement,” ‘eho Suprone Judicial court, after a detailed review of the statute's legislative history, concluded that “in confinewent* was Limited to wean “confinement ina jail o prison, of confinenant in some conparsbly secure and restrictive inetivutional setting." Morasse, 446 Mage, at 122; eee also Comonveatth v. Speight, 59 Mass. App. ct. 28, 32 (2003) (to receive credit for tine spent subject to probation condition, defendant mist show deprivation of Liberty approached incarceration) The purpose of Ot. ¢. 278, 639A, was to provide relief in the form of sentencing eedit to defendants who‘spent time im Jall or correctional institution wile awaiting trial and prior to sentencing. See Nora Mags. at 117, 119 (citing 1955 Senate Doc. Ne. 750, at 75 land the ‘crediting of Jail Time on Sentence’ Report Commonwealth v. Grant, 366 Mass. 272, 274 (1974); carter, 20 Mass. App. CE. at 620 (purpose to afford relief to persons unable to make bail) . In Morasse, the Suprene gudicial court held rescriction to chouse arreat cn pretrial probation” 1s not the equivalent of ineareerstion and does not qualify for wentencing credit, 446 Mans. at 121. Hone confinement restricts movenante outside of the hone, but otherwise, the detendant ix free to do ap he wishes. Id, at 120. imprisonment in a house of cortection means being housed in 42 place for the confinement of juvenile offenders, oF those who have committed crimes of | lesser magnitude. Conmonweateh v. Cowan, 922 Mase. 546, 549 (2996). The defendants Cusick and Stroup were booked and released and were then freed to return to their organizations’ beothe, to associate with vhomever they pleased, to deliver heir keynote speeches at the event, and to otherwise participate in the “Hamp Fest.t The Aetendante’ brief and minimal detention for booking purposes only did not entitle them to any credit tor tine served. The award of one day of credit in clrcumatances where, based on the extent statutory and case lav, it was clearly improper, was in disregard of the statutory scheme and thus of the rule of lav and the separation of pavers and creates an appearance that Judge Dougan was and ie not impartial ‘uige Dougan aleo inproperly acted on behalf of the defendants in this case when he alloved then to object to having this matter treated ae a civil infraction and allowed then co proceed to crial, that ie, under G.L 6. 277, § 70c, Judge Dougan sua eponte offered 0 convert the criminal possession charges to civil infractions, with the acinus pensley of @ $500 fine, and che Conmonwsalth Ald not ebject. Judge Cougan then permitted che defendants to object to thie course, “because the defendants have spent @ lot of tine and effort to get to thie point, 40 that counts for something” (Trial tranceript, volume 11113). The stature does not provide any Jawtul authority for the defendants to object to the decinion to treat their civil infractions. See Gt. ©. 277, § 70C. Both Gefendants objected (Tr. 1112-13). dury eelection resumed land the case proceeded to trial (Tr. 11116-25). The trial judge, by permitting the defendants objections to which ‘they were ot entitled, appeared not to be impartial.Fe 6. UMAMrULLY vacanixG GUrLTY FLEAS In the case of Comenvestth y. Barbara Gregorio, BANC. Mo, 0601081976, Judge Dougan improperly vacated & guilty ples. The defendant plead guilty, after a full and proper colloquy before gudge Dougan, to the crine of fatlure to regiater as 2 sex offender, in violation of @.t ©. 6, 5 1788, on Septesber 26, 2006. Less than one sonth ater, the defendant fited a motion to revise and revoke hher sentence. On Novenber 9, 2006, ever the Commonwealth ebjection, Judge Dougan unlawiullly vacated the guilty ples. The Comenwealth filed 9 petition with the sinsle Justice of the Suprene Judicial court, seeking a supervisory ordor reversing the action of Judge Dougan, on Nay 9, 2008, the Single Justice, Gresney, J., held that vehe Judge had no authority to vacate the finding of guilt," and ordered the guilty finding and original sentence reinstated Tn Comonweatch v. Senyery Cafoux, B.M.C. Mo. D40xcREDE2, Judge Dougan vacated = guilty plea where a Getendant faced collateral semigration consequences. gudge Dougan made written findinge and opined that the derendant: attorney wae ineffective ‘The Conmonwealth fled a motion to vacate that order with guige Dougan. hon the moticn to vacate waa Eo be a6 heard, Judge Dougan called the attorneys to che sidebar rather than conduct the hearing in open court. He then engaged in a discussion im watch he defended hie conduct is the Quiepe case (in which the Suprene sudictal Court found that he acted improperly based on his concern over collateral ‘innigraticn congequences, see supra p. 9), stated chat hie conduct was not divected at Second Assistant District Attorney Gerry Stewart, who at the cime of the Quiepe case wae an Assistant District Attomey in (he Boston wunicipsl Court, and ateted thet he wae “just doing what is righe*. ‘Judge Dougan then allowed the Commonwealth's motion to vacate his prior order granting the dafeniant a new trial, stating that hie hands ware tied by the Appeals court! opinion in Commonwealth v. Monteiro, $6 Mass. App. Ce. $23 (2002) ‘The Judge's conduct in allowing the motion for a new ferlal and then, when facing 2 motion to vacate, in vacating hig order is indicative of bias against the Comommeaith, and well as his arbitrary and capricious conduct. mie faction in not conducting the hearing im open court indicates a lack of appractacion for the public perception (of Justice and for the Sixth Amendment right of the public and the defendant to an open public court; and, he lengthy» Aiscuseion at sidebar Largely unrelated to the motion and the case ie Likewloe indicative of a lack of impartiality and of bias. 7. PRuoguRING A PROSECUTOR TO AGREE ZO Ax UMTAMFUL PosT- RIAL CONTEWUANCE AKD CRITCILING A PROSECUTOR FOR YAILING TO DO SUSTICE In the case of Commonwealth v. Soto, BLM.C. No. oeorcRs027 (aise yd above], the defendanc, a $8-year-olé man with no prior criminal record, was charged with che cerine of indecent assault and battery. He had molested an adult male on an escalator in North Station. atter a bench trial on october 2, 2008, Judge Dougan exsted that he “found mufficient factet and inquired whether the prosecutor would recoenend a CHOP (continuance without = finding) as a disposition. Such a finding, after a bench trial, is unlawful. See Conmonvealeh v. Norrell, «23 Mass 725, 727-28 (1996). The prosecutor declined to sesk euch 4 Gisposition, as It was not appropriate in the case, and Likely is not lawful poet-tetal. td. oudge Dougan ‘continued sentencing and requested @ pre-sentencing repo! from probatin. AE sentencing on Novenber 32, the Comonwealth moved for a finding of guilty and a sentence of incarcerated time. Judge Dougan called the attorneys co sidebar and noted that the consequences of @ guilty finding could be severe and that he felt that such consequences Fy would be unfair and not varranted,* gudge Dougan may have been referring to the defendant's argument chat he would be required to regiater as a sex offender and would lose his job in a nursing hone.’ Nonetheless, Judge Dougan found the Aetendant guilty, acknowledging thet he wae required to do The victim made an impact statement, and noted for the court that it was better thet che defendant had colested a ‘grown man who could defend himself than a child or a defenseless person in 2 nursing hone. The victim noted har when he learned the defendant worked in a nursing hone he alnost hecane physically (11. He went on to note that the fact the defendant had to register as a sex offender would serve to protect defenseless people. ‘Jwige Dougan imposed a centence of mine months of sncarceration, one week to serve, the balance suspended. Jieige Dougan's actenpt te pressure the prosecutor £0 ge along with a continuance without a finding, and hie telling the prosecutor, in essence, that justice had not eon done at sentencing due to the lawful conduct of the Again, the sidebar served no lawful purpose, fevetrated the Sixth Anendeent, and im pert of 8 potters of conduct desonstrating bias for detendance. the Judge may alec have been collateral inmsgration consequences, Cajoux cases discussed herein ferring to possible “in the Gulepe andProsecutor, indicates a lack of impartiality and bias, and reflects a Judge who tack on the role of en advocate st 8. WMARFULLY mpoSING A CONTRIWANCE WETMOUT A FRIDING APRER CONDUCTING k BENCH TRIAE Olughade, B.M.C. Ko, 09010R2568, Judge Dougan presided over a jury-waived Eeial AE the conclusion of the trial, the judge acquitted the defendant of two counte, and then found suteictent facts for a finding of guilty on the thisd count. The Judge then imposed a continuance without a Esnding over the objection of the prosscutor. such a Aieposicion wae not only unlawful, but violated a clearly festablished rule of lay articulated by che Suprene Judicial court over a decade pricr to this disposition. see Commonweatch v. Norrell, 423 Mage 725, 727-28 (1996). ‘Suge Dougan vas well avare that thie disposition was Uunlawiul, a2 in the case of Commonwealth v. $260, BMC. No. 0801¢R5027, he had attenpted to impose a continuance without a finding after a jury waived trial, and che Commonwealth cbjected. At the sentencing hearing in that cane Judge Dougan found che defendant guilty and inposed = suspended sentence, stating that “che Court Will do what 4 de required to do under che Law.* ‘The Commonwealth filed a petition in Olugbade with the Suprene Judicial Court, seeking a supervisory order vacating che unlawful disposition. $5-2009-0313. aude Dougan then had the clerk of the lower court send a letter to the defendant asking him to appear én Court on July 25, 2008 for = new sentence, on the grounds that the sentence imposed wae ‘1eaal. ‘The suge’ conduct tn knowingly and dntentionally imposing an unlawful disposition is a consistent pattern and demonstrates his disregard for the legislature, the ‘statutory schone, and the Suprese Judicial court's rulinge, and indicates 4 lack of fairness, and partiality and bias: "MANDATED ALIEN RARNINGS UNDER G.t. C. 278, § 29D alge Dougan algo failed and refused to provide the statutorily-requived alien warnings, under G.b. €. 278 § 290, during ples collogiies until this office souht relief from a Single Justice, Then, in Commonwealth v, Ort{s, tp. 81-2002-199 & Comomeateh ¥. Lopes, Ho. 8 2002-175, the single dustice, spina, J., ordered Judge Dougan to provide the correct cotloguien and warnings to those defendants. Justice spina also ordered the Comonweaith to monitor the Judge and to report about whether the Judge wae cbeying the atatutory mandate toprovide the alten warnings, The fact that @ Justice of the Supreme Judicial Court ordered the executive branch, the District Attorney, to monitor and report back on whether Jude bougen could and would provide a legisiatively mandated alien varning to criminal defendants 1s shocking Andication the Judge Dougan does not and cannot conform hie conduct to the rule of Law. 410, IMPROPERLY SUPPRESSING CERTIFICATES OF AKALYEI® OF CONTROLLED SUBSTANCES YOR TRRECEVANT AND IMPEOGSSIRLE REASONS. In the case of Conmomwesith ¥. Michael Crawford, B.M.C. Wo. 0601086707, the defendant was arraigned on Noveeber 20, 2006, on the charge of the possession of a clase B substance. on December 12, 2006, the defendant appeared before Judge Dougan for a pretrial hearing. The etendant moved for the cuppression or exclusion of the certificate of drug analysis fron any trial. — Defene counsel argued that if the case was resolved then nie client would be eligible for parole. (ie w House of Correction sentence.) The Commonwealth objected. to the exclusion of the drug certificat ‘Sudge Dougan alloved the action to exclude che drug certificate. This order was entered at a pretrial date, fone approximately one ronth after arraignment, prior te the completion of @ pretrial conference report, and prior to any Glecovery order for che certificate having entered. The Commonwealth moved to reconsider, arguing that the sanction of exclusion wae too severe as the case hed only been pending month and the pretrial conference report had not been filed. Judge Dougan called the parties ro the sidebar and adnitted that the sanction was toa severe, that dn the particular circumstances of this case, he was excluding the evidence. He algo stated that the case use going nownere.* ‘The Commonwealth sought relief ty fling a petition seeking leave to take an interlocutory appeal with the Single gustice of che Suprene Judiotal Court, on December 28, 2006, the case vas again before gudge Dougan. The Comenwealth filed a Motion te Stay the Boston Munscipsl Court proceedings due to the pending appesl, — laving eared that the Comonvealch wae eeeking relief from the Suprene Judicial court, Judge Dougan reversed his order excluding the drug certificates of anslysie fron trial, ewlaining that he @id eo in part because of the Ccoomenoat th t41ing of the Motion to tay, and in part because the Cormonweaith had no agreenent and no obligation to tum over the certitieate of analysis at that etage of the cate.uige Dougen’e action in excluding the drug cortificate, while acknowledging at the tine he did so that the sanction was too severe and was based on the circumstances of the case (infersbly in order to seek an rapid disposition to render che defendant parole eligible), and his cuboequent reversal of nis own order once the ‘commonwealth sought relief from a Aigher court, and his adnigeion that the Commonwealth wae under no legal obligation to have produces ehe arue certificate when he entered hie order, is an obvious admission of jutictat migconduct, and indicates bias, part ity, and a lack of Om May 13, 2009, in the cave of Commonwealth v. Rayohwan Morris, B.K.C. No. O8010R7612, dudge Dougan allowed 2 defendant’s oral request to sanction th Commonwealth by exctuding from a then-unscheduled trial the ot yet propared certiticates of analysts. The defendant attorney advieed the judge that the pending criminal charge of po eteion of a controlled aubetance was hampering his client‘e efforte co find employment, ie had not filed any written motion nor any supporting agfidavie, contrary to Mass. R. Crim. P, 18 and 48, Judge Dougan then ordered thar the drug certificares would not be admissible a trial 4 Judge Dougah’e action wae without any lavful basis, Commonwealth. The Judge was aware that the sanction he imposed was improper as devonstraved by his om course of conduct in the Crawford ease. PREPARED TM DROG CASES ‘eige Dougan has stated on several occasions that his scheduled both for mations and trials on the same date non the cases involve charges of the unlawful possession of controled substances, and when the drug certificates of analysis have not been prepared and disclosed by the motion-trial date, the Judge has announced that he will atoms 11 uch cases without prejudice. Such scheduling of sotions and trials on the sane date ie contrary to the Aules of Criminal Procedure. see Masa. R. crim. F. 2, 12. In addition, the supreme Judicial court has recently confirmed that such evente should not be Scheduled on the cane date, ag ‘the conbination of suppr ion and trial proceedings may deny the Comonwesith any opportunity for interlocutory review of an adverse notion decision that could lead to an unjustified acquiteel6 without recourse. commonwealth vy. tove, 452 Mi Calendaring a prenature rial date with the expressed intent co dismiss the case if a drug certiticare ie not then ready indicates @ lack of impartiality and bias. Indeed, the Ruler provide for a continuance to avoid an injustice, and the inability of the commonwealth (due to Limited resources as the testing labsrateries) to produce certificates of ansty 2 in the tine frame te Likely to be in place (90 to 120 days) would be conteasy to the rvle on continuances. See Mase. crim. P. 20 Dismiseing a case on such a date would violate the separation of powera and would be an abuse of dlecretion. See commonwealth v. Borders, 72 Masa. App. Ct. 921, 912-13 (2008) ‘Susoe Dougan’s conduct in this regaxd indicates « lack of imparciality and bine. The stated intention and the Public disclosure of the intention to engage in euch wholesale dtenss al of criminal cages indicates a disregard of the proper separation of powers and reinforces the perception that Judge Dougan ‘2 not tepartial 2 12. DISREGARD POR THR PRIVIDEGED STATUS OF VICTIN-WITWESS ADVOCATES OF THE DISTRICT ATTORNEY'S OFFICE in guly of 2002, the District Attorney's office was compelled £0 deliver a letter to Ondge Dougsn reearding nis attempt to compel the appearance of a victimuttness advocate of the District Attomey's office before sudse Dougsn, to question her regarding conversations che had with a victim in a cage then pending before him. Judge Dougan ultinately did not force the issue, as the Assistant District Attorney strenuously objected. Te Suprene Judicial court had already ruled that, By operation of statute, G.L. ©. 2588, and Mage. R. Crim. PL 26, the victim witness advocate enjoyed the same work product privilege as the District Attorney, and euch orders to sppear and Givulge information about conversations with victive were ot proper. See Commonwealth v. Liang, 424 Mase. 131 (2008). the action of Judge Sougan indicates both an unwillingness to follow the rule of lax, ae established by the legislature and the Supreme Judicial Court, and a lack of impartiality. 13. FAILING To FOLLOW TE taw MRaARDING THR DIEctoguRE oF tn the case of Canmonwealth v fugo Ferrefra et al-, Judge Dougan not only improperly peidaeed the disclosues of the adentity of am informant toaefendent who had sought chat information, but he ordered the idencity disclosed to a defendant who hed not even sought euch information. The informant wae not an eyewitness to either the crimes charged or the search perforned, and wae a meze tipster whose disclosure was woolly unwarranted, ‘ulge Dougan’e order for disclosure was reversed by Single Justice of the Suprene Judicial coust after the Commonwealth petitionsd for relief (No. 97-2006-0358), Hie conduct in thie case indicates a lack of regard for the controlling law, and partiality and bias. 14, RRYuBIG TO. aK REQUIRED WRITTEN FINDINGS ten EMPOSING ALTERNATIVE DISPOBTTION UNDER .2. C. 209A" tn disposing of a charge of violation of an abuse prevention order issued under @.t. €. 2088, after an fedmission to sufficient facte, Judge Dougan did not order the defendant to che mandated cartitied batterer’ intervention progran im Commomealth v. Wilson Perez, B.M.C. MO. O507CRE7O3. The statutory achame requires that, Where Judge Dougan did not impose thie disposition, he make written findings of the reaona for not imposing the Progren. See G.L. ©. 208A, 5 7. Judge Dougan refused to make the written findings deepite the Commonwealth's request and objection. the Comonvealth filed a petition for relief with the Single Justice of the Supreme Judicial Court under G2. © 211, § 3 (We. $7-2006-0036.) Atter the Single Justice ordered Judge Dougan to comply with the Statute and make the requisite findings, he did so, and not aware of the statutory requirenent, and further stated that neither the prosecutor or defense counsel had provided him with a copy of the Felevant provision setting forth Ms legsl duty. gudse ouge #8 agein ignored the legislatively established rule of law, and reinforced hie appearance of biae and partiality against the Coomonvealth. 38. MOUCING DEFEDANTS TO WAIVE THE CoNSTYTUTION\L RIGHT To A ORE TEAL AND RETEREICES 70 HIE REPUTATION ‘elge Dougan frequently encourages defendants to waive heir constitutional right to a jury trial. When @ defendant elects a jury teisl snd the defense attorney knows gudge Dougan, chen Judge Dougan routinely makes a point of advieing the client to consider whether the client wishes to valve hie or her right to a Jury, and then immediately takes a recesa eo the client and attorney can confer, In situations whore the attorney ie not fan{liar with him, he often advises che attorney to ask around the courthouse about hie reputation, and cakes a recess so the2» attorney can discuss with the client whether to waive a jury tesa In one case, ComonveaIeh v. Marina Santana, 8.M.C, No. 010102726, he granted the defendant a new trial on the ‘groude that he had coerced her to waive her Fight to a jury trial. That is, after be convicted her at a bench etal ‘she woved for a new trial on the grounde that the waiver of her constitutional right to a jury was act voluntary. In ie eemorandia of decision granting the motion for new trial, dudge Dougan found that, “during several attempt by the court to determine what type of ‘rial the defendant wanted, the court coomented on how long fhe had been held awaiting trial and the Likelihood that a srentence for the crimes charged If she were to be found guilty would probably not exceed the sount of time che had already been held.* cudge Dougan then held that his commente “in the context of thie case the effect of this language in fact was coercive and may have substantially lessened the volunteriness of her waiver... [lt 26 thts court view that any occurrence or action by the court that materially intrudes on the right of « defendant toa trial by jury in the end provides 2 ouffictent baste for a new ersal.* There are numerous other instances of similar evente where Judge Dougan conveyed to defendants or attorneys that 2 fury waiver would be desiceble, and hie reputation throughout che courthouse in chia regard ie that he is not impartial, and sn objective observer wold conclude that there {a an appearance of partiality. one such instance cccurred in the cage of Cermonwealth v. Bdvarde, BMC central Division No. O7ICDS44-2, & firearm possession case that originated in Roxbury. While the jury Geliberating Judge Dougan, who had presided at crial, ‘stated that he rarely has jury trials, because rest defen attorneys who know him elect bench triale. sy Ais actions ‘and words, Judge Dougan both demonstrates bias and lack of impartiality, and acknowledges that he ie perceived not to bbe impartial. More recently, in the context addreaning whether a recusal moticn, if made by defense counsel would be allowed due to an ex parte contact with two Assistant District Attorneys, guige Dougan noted that it would be dented because he did not believe that the Commonwealth had the Pereeption that he routinely ruled in sts favor. Thus, én that case, the case of Comonwealth v Carlos Pena, Wo. 4200330764190, involving a motion to withéray a plea based on Semiges on consequences, 7udge Dougan againa acknowledged, at least implicitly, that he wae not perceived to be impartial 16, MBROPERLY TDUCING WAIVER OF JURY TRIAL AND USING WO DEPENGE ATTORNEYS TO EWGAGE I AN EX PARTE CONTACT NIH AROTIER DEPENDANT’ S ATTORNEY. in another case, Commonwealth v. Oovaldo Gareta, ¥o. 960150355-2, on July 27, 2006, the defendant appeared in che first fon at the court on hie teial date, and elected 2 jury trial on the charge of unlawful possession of a izearm. lia case wan then axaigned co Judge Dougan! session, and the defendant appeared before Judge Dougan represented by Attorney Steven Kin, an attorney with whom Sudge Dougan woe not familiar, Attorney Kim confined ehat the defendant hed elected = jury trial. After encouraging that attorney and the defendant to reconsider, the judge called two attorneys Know to him, John Rus aL and ently Marstetter, to sidebar and implicitly encouraged then to ge epeak with Attorney Kim about the decision to waive s jury As one of the attorneys, Joln Russell, aid, he wae prompted to approach Attorney Kim because of the sidebar, and he did dincass wish Attorney Kim that Judge Dougen xa ‘vas good a6 you can get* on a jury-waived trial. attorney Karstetter aleo believed Judge Dougan suagested that she go fepeak with Attorney Kim and give him the impression that adge Dougan could be trusted. Attorney Kim sald that Attorney Karstetter indicated to him that Judge Dougan leans pro-defendant, snd confirmed the casence of what Avtcrney Rugeell conveyed to Aim Judge Dougan used two attorneys who were not involved sn the careta of © a8 his agente co comunicate with the detendant’s attorney, and in this way engaged in an ox parte contact. Judge Dougan’s intended to and did conmunseate to the defendant and hie attorney that he was Partial and biased sgainet the Commonwealth. Judge Dougan also appeared biased and not impartial as he sought to Anfluenca the defendant's decision of whether to waive hie constitutional right to trial by jury. sudge Dougan, after the Jury-waived trial, found che defendant not gulity of unlawful possession of the flreare In the case of Comonveaith v. Heidi Erickson, B.¥.C. oreica20xé, 5026, 5037, S038, 5029, 5040, the pro se Getendant filed mmerous motions. Among these was a “Renewed Motion for Discovery’ ehst was heard by cudge Dougan on duly 22, 2004. Thi motion sought the production of medical records related co the care and treatment of certain animals. After hearing from both the Gormonweaith land defendant, Judge Dougan ordered that the defendant'sexpert could have accees ce, and copies of, the medical. and ment records of the anima One week ater, on July 28, 2004, the pre ee defendant sppeared at the District Attorney's office, desanding that Assiatant District Attorney Any Mallamee sign a document feneitled order on Renewed Motion for Discovery. sign the docusent, and advised the defendant that any order wes a matter that Judge Dougan would have to consider after filing and hearing. ‘The defendant then went to the Boston Musiespsi court and requested chat che order be allowed. From our swformation, it appears that personnel from the clerk's oftice or Judge Dougan’s lobby contacted Judge Dougan regarding her request for that order to issue. At Judge Pougan’s request, the order va then delivered to gudge Dougan in chanbers and he then signed and issued the order on Renewed Motion for Discovery." This order was substontively different from the oral order ieaued from the bench on July 21, 2004, as, among other differences, it Provided fer the production of the medical records directly to the defendanc, and net to her expert; and the gly 28 by Boston Animel Control . . . all records, includes end is order algo required the production of ‘all records ot limited to Photographs and names of all exployees, agents and/or persone, their title, place of employment having direct with aid antnaie.* ‘Tho defendant then filed a “Motion and/or Verified Complaint for Contempt," seeking to enforce this order, and in her motion she corroborated the fact that the order was issued by Judge Dougan en July 26, 2006, 9 does the order sree. The issuance of an ex parce order at the request of che pro se defendant, without giving the Cononwealth notice of the request for a substantively aittersnt order land an opportunity to be heard was iteel€ « violation of ‘the Rules of Criminal Procedure, See Mase. R. Crim. PL 13 Bavering an order which purported to compel @ non-party to igclose information dizectly to the defendant in advance Of trial, including photographs, names, titles and places of employment of non-partiee directly aftected their interests, and neither they nor their employer were given notice snd an opportunity to be heard regarding thie request, also violating the Rules of Criminal Procedure and the conmon law. See Mass, R. Cris. P. 17; Comonwaalth v. Lanpron, 481 Mase. 265, 268-71 (2004). This failure to follow the rules of procedure, to the detrimant of the Commonwealth and the affected non-parties, denonetrates aSieregard for the rules of court, ae well ae biae and partialicy 48. REFUSAL 70 REVIEW AN APPLICATION YOR A SEARCH WARRAME In the case of Comonwoatth v. Michael Crowley, No. SUCKIODZ-11323, a Superior Court Judge denfed = motion to suppress evidence seized pursuant to a warrant. The nesorandum of decision noted that the officer who sought the warrant had called the on-duty judge and attempted to present the warrant to that judge, who vas Judge Dougan, The report of the police officer regarding this incident noted that he called che Judicial Response System at 1:00 asm. to reach the on call duty judge to seek the issuance of a search warrant. The judge who responded to this call wes Judge Dovgan. Suge Dougan initially tried to avoid having to review the warrant by asking the ofticer to call fa clerk of the courts, Therastter he advised the officer that he would not want Judge Dowgen to lock at the afeidavit, because it vould take two houre to review ie and that the officer would not be happy with the recults, as there would be many changes co be made. The officer did not actually present the search warrant application to Judge Dougan, but had to wait until the next morning te present it to the clerk magistrate at the Charlestown District Cours. A 75-year-old woman who resided in the repidence that was going to be searched after the reported shooting wae forced co eit in the mitehen for the entire sight, and until 1100 amo next day, due to the failure of Judge Dougan to review the search warrant application. Judge Dougan’s conduct is indicative of bias and partiality. om February 7, 2008, the Central Division of the Donton Hnicipal Coict Jesied a complaint chevging Charles Manpton with assault and battery by means of 3 dangerous weapon, in violation of Gul. e. 265, § 26; yout and battery, in violation of G.L. ¢. 265, § 238; wanton destruction of property, in violation of 1. ©. 266, 81278; and child ndangereent, in violation of Gut. c- 265, $131 (B.M.C. No, og010R1319) fon April 29, 2008, Judge Dougan ordered that the Comonwealth reduce to writing and provide to the defendant any and sil oral ststomente of percipient witnesses and to clarify, a9 fo any written atatenents incluied in police, ho the declarant of each atatenent fon May 23, 2008, the parties were again before Judge Dugan. The Commonwealth reported to Judge Dougan that the officer who had authored the report had Been opoken with, chat what he had written was a “conglonerate’ of what chevarious witnesses Aad said to him, and that the Coononweslth had fulfilled its discovery obligations. ‘Judge Dougan then stated, fnter alia, that the discovery rule requires that, if a witness Bald anything more to a police officer than what the officer wiote in the report, the Comonwealth mist provide thove ofa statemente and Adentify which wltnas Js mado the statement s3udge Dougan then ruled that the witnesses could testify only to what was written in the police report and nothing more, eo that Sf they said anything else to the police they could not testify to anything that they saw the defendant do that w ot sncludes 4 witness atatenent in the report. On the recording, Judge Dougan referred to the Assistant District Attorney as a "dite" and ead, ‘she doesn't have che faintest ides what's going on. This would lead 2 reasonsbly objective cberver to believe that Judge Dougan ie biased. 420. ACQUTTING DEVENDANTS TN POSSESSION OF A PIREARK OF 2AWADITTION CASES As noted above, Judge Dougan has @ reputation for favoring defendants at tench trials, and encourages attorneys unfamiliar with hin to learn of his reputation ‘The following exanpies sn addition to the Oavalde Garcia case discuased supra pp. 41-42, should euftice co pur thie aspect of his conduct in context, 1m Camonwealth v. Deon Young, 8.N.C. No. 0601I0663-7, the defendant was charged with unlawful possession of a Hizearm Both ae 6 principal and as a joint venturer. The defendant and the fizearn vere both in a cotor vehicle with other people. The Firearm was recovered fron the vehicle, and certified by 2 balliettctan as a firearm, the defendant made a statenent to the police after his arrest 43m which he sald that he had carried the firearm on his person earlier that might into a party for another person, and passed the firearm back to that percon. He clained thar thie other person had put the fivearm on the seat of the car and attenpted to get him to take it end run whe the police stopped the car chat he and the firearm were in, and that the ano person then stuck the gun under the seat ‘The police officers had observed the defendant bend foxward as Af to place something under the seat when the car was stopped, and the defendant adaicced he had made auch a ‘Judge ougan acquitted the defendant of having possession in the motor vehicle, finding that he had no os the firearm at that tine, Ag to hie admitted possession of che ftzearm in the party earlier,‘Judge vougan acquitted the defendant of possession of the firearms at that tive by finding that there was no evidence to corroborate the defendant's confession, although Judge Dougan stated chat there vas 2 “fair inferences that he could have carried the same firearm that was then found én the moter vehicle in which he was riding. gudge Dougan acknowledged that "ive possible that I'm in error on that finding. Judge Dougen's failure to find the defendant guilty where he had confessed te possessing a firearm at a party, & confession corroborated by the recovery of the firearm from che car in Which che defendant was riding, 18 evidence Of bias against the Commonwealth. In Commonwealth v. Kenneth Lopes, B.M.C. Central xo O70iJCE74-2, the defendant was charged with possession of a firearm, possession of armunition, poaseasion of a loaded firearm and drinking in public. The defendant had « Firearm loaded with oix bullete, one in the magazine ready to tie. Fart of the evidence was a ballistics certificate ‘opening that the six bullets met the atatutory definition of a fixearm, After a bench trial gudge Dougan convicted the defendant of only the charge of possession of = firearm. The acquittal of the charges of poesesnion of fammunstion and ef loaded firearm 4 sneupported by the facte, and the controlling case Jaw, which hoids that the statute criminalizing ammunition requires only that it be designed for use in a fixearm, and does not require that it be functional or capable of being fired, See comonvealth v. Mendes, 44 Mass. App. CE. 903, 304 (1997); Gut. ec. 269, § 100). Judge Dougan’ pattern of Acquitting defendante of fivearn and aemunition charges wieere the facte and the law do not raise 2 reasonable doube shove a lack of impartiality and a bias. 21, SUPPRESSION ORDERS IX FIREARM CASES HEARD BY JUDGE During calendar year 2008, Judge Dougan heard 19 sion of the Boston suppression order in the firearm Municipal Court, Central Divieion.* Of these 19 cases, he suppressed the firearm in 15 cases. This rate, supproasing che firearm in 79% of the cases sesas extraordinarily high. ” prmeam cases Over the past several years, the Comonwealth hs appeaied fourtesn of Judge Dougan’s suppression order ‘Ten of thowe appeals have been resolved. Of these ten, "A ewentieth hearing was commenced, but not completed, at che Conmocwealth wan compelled to file a nolle prosagut ‘based upon Judge Dougan'e questioning of a police’ witne! in order to avold revealing information about a civilian wlenees.st seven suppreseien ordeca wore reversed. Thus, 704 of hie ‘cuppression orders that were appealed have been reversed. In one of the decided cases in which the suppremsion order vas affirmed, Comonwealth y. Rolley, the case wae remanded multiple tines for further factual findings by Judge Dougan after the appeal was docketed. That the facts ae ultimately found resulted in affireance Se, thus, aot surprising. In that case, the Judge discredited, to sone extent, che testinony of @ police officer about his cbservations of the cap of # bottle in a brom paper bag that appeared to be @ 40-cunce beer bottle. the other aftizmance wae in Commonwealth v. Marsham Garden, vaich will be discuased further below. Arguably, the reverssl rate of 704 for this cudge ie indicative of a jurist who fatle to apply the Jaw correctly to the facts, even as he finds the facta. In each of those reversed (eave one) Judge Dougan discredited at lesst in part an often crucial aspect of the testinony of various police officers, 23. FAILURE TO FOLLOW CONTROLLING CASE LAN IN PIREAR SUPFRRE@ION CASES in Commonwealth v. Messiah franklin, B.M.C. No oyoisci07-7, sudge Dougan found that the defendant “took off running’ when an unnarked car stopped near to him.” As the defendant ran, the police officers followed on foot, and the defendant threw a firearm over a fence. the firearm made a metallic clang when it Rit the ground, and the defendant wae apprehended as he tried to clin fence ‘judge Dougan suppressed the firearm based on his leyal conclusion that the defendant wae seized when the police officers got out of ehete | 0 appeal, the Appea court reversed, noting that the case was controlled by commonwealth v. Perzy, 62 Mat ppp. Cte 500 (2004) tnerely running after a running person, without more, does not effect 2 selzure in the constitutional sense"). xt foral argusent the Appeals Court inguired whether the sudge was aware of tho Perry case, Subsequent discussion with the trial prosecutor indicated that the case vas specifically brought to Gudge Dougan’s attention during che ‘suppression heating. dudge Dougan’s failure to follow the controlling case creates the appearance that he ie not "the judge did nor credit the testimony of the police officers that the defendant locked "surprised or nervous 5 the umarked police car approached.24, PATTER OF DISCREDITING POLICE TESTIMONY IN ORDER TO AGUIEVE A spucr?re OUTCOME OR TO IROULATE THE JUDGE ‘AGAINST APPELLATE REVEEN ‘Tho cages sot forth herein are a sampling of Judge ougan’® rulings en suppression rations in fivearms seizure cases. The portion of the testiscny not credited is noted. Tf the Commonwealth appesied that is algo noted, es ie the outcome oF status of the sppest. A. Commonwealth v. Messiah Franklin, In Commonwealth v. Messiah Franklin, suppression order ated October 18, 2007, discussed supra, dudge Dougan found that the defendant ‘took off running’ when an unmarked car stopped near to him, Judge Dougan did not credit the testinony of the police officers chat the defendant looked surprised or nervous" asthe unmarked police car approached. Ao_noted above, udae Dousan’s suppression ordor was reversed. ‘Judge Dougen’a failure to credit the testimony of the officer that the defendant appeared ourprived or nervous has emerged ae a consistent pattern, whereby he does nor credit an officer's obmervation of what would be @ natu Feaction, and is deeigned to insulate the decision from appellate review. This appears to be biased and not smpartial. . Comonweslth v. Robert Pleming, B.M.C. Wo. oeeuseees-7. nudge Dougan suppressed a fixesem that vas seized whe ed person know to then to Lift his t-shirt Judge Dougan did not credit the testimony that the Getendant clutched nie left sem atiésly a land that he was nervous end epesking rapidly. Tt would, of course, have been 2 natural reaction for the defendant, carrying an unlawful firearm and conversing with police officers, to have been nervous. Judge Dougan’ failure to eredit the testimony that the defendant appeared to be nervous ie a pattern that emerges in hie decisions, and is indicative of bias and an attempt co insulate che decioion from appellate seview. The Conmonweaith’ C. Comonweaith v. i24an Graham & Robert xine Bice. Yoa. 080250729 © 757-2 uige Dougan suppressed a firearm found in a car'e glove box and marijuana taken from the defendant's pockets: ssudge Dougan found thar the officers did not know what plastic bags with marijuana in them felt like when they ‘frisked che defendant's pockets, and that there vee no justisication for unlocking the glove box, even though a proper exit order for officer eatety had been given. Judge Pougan also @id not credit the testinony of the officerschat they could enell marijuana coming from inatde the motor vehicle, or chat the oecupants of the car were nervous or ghaking. Where the defendant had nteventially Just locked & fizearn the glove box, as he had the keys sn hig hand and ie hand near the glove box, nis nervousness would have be natural and apparent. Discrediting che ofticar’s chaervation of this natural Feaction, while crediting most of their testimony, t¢ consistent with Judge Dougsn’s discrediting observations of Diecrediting the enell of marijuana ie consistent with insulating the case from appellate review. Tudge Dougan’ findings are indicative of bias and an intention to insulate Mie rulings from review. ‘The Appeale Court reversed the allovance of the suppression order. D. Comonwenith v. Allender o7eacRa732; A.C. No. 20 ‘The defendant was charged with the unlawful possession of a firearm, The firearm was vecovered from 2 notor vehicle with an expired registration, and which had been registered co a perscn by a different nase. the defendant was agen in the car on Saturday, Sune 2, 2007 about 9:50 Dime by Boston olice officers and a state trooper (all igned to the Youth violence strike Force) who were patrolling in an unmarked Crom Vietoria in plain clothes in the Drayton Avenue, Rodwell street, and Saker Avenue areas, The officers were familiar with these ar 2 having nade arrests in the past for various cries as vell having responded to numerous reports of shots fired, person with a gun, and persons shot. The other officers saw eo sep standing next to a parked black Toyota, the driver eide curb across fron 21 Raker Street Seiver's neat of the Toyota. The officers knew two of the ef thelr involvement tn men who were atanding beca: narcotics and firearm activity. As they passed che Toyota, they checked the registration on the mobile date terminal in the Crow Victoria and found aut the car ws unregistered. An officer saw the man in the driver's sost fof the Toyota later identified a the defendant, Alander Gooden, open the door and crawl cut, lying on the sidewalk ‘The Crom Victoria backed up and the officers got cut to speak with the wen. One of the officers asked the Aetendant vhy he cravled our of the car onto the sidewall. ‘The defendant responded, “Seen there all the tine’. The Aetendant told the officer the car belonged to his girLfeiend and that he wes Living across the street at 22 ‘soker. A computer check of the defendant's Iicense revealed that tt was fren Georgia and had been euepended:officers aid not keys in the ignition of the Toyota ‘The sudge did not credit testimony that the defendant wi nervous, shaking, or had a pulsing artery Because the Toyota was unregistered, the officers decided to have it towed. one of the officers who searched the Toyota before it wae towed had attended a cousse given by the U8. Drug Enforcement Agency on “hides” in motor vehicles. While searching the Toyota, Officer Sheensn Lifted the cover of che gear ehife, which was not fastened own, and found a gun in the gear shift cavity under the cover out of sight. dudge Dougen aid not cradiz the testicony of the officer that he say something wrong with tho cover chat led his to investigate ie. (om Novenber 6, 2007, Judge Dougan allowed the motion to suppress. The Appeale Court reversed him on June 24, ‘Tho fact that the defendant war in an unregistered vehicle, that he elid out of the car and then denied having been in the car, that the expired registration wae in che ane of another person, that hie om driver's License wae expired, and that there was 2 firearm hédden therein, all ‘corroborated the officer's testimony that the detendant ws nervous and shaking and had puleing artery. Budge Dougan'® finding that the officer was not credible when he testified that the defendant was nervous da the etreuatanc in which the defendant war in, ts indicative of a lack of impartiality, bias, and of an effort to insulate the decision from appellate review. Commonwealth v. Matthew Hannan, dearease49. The detendan: waa charged wich variot including assault by meane of a dangerous weapon, sion of @ clase # controlled substance, po asd such postossion with intent co distribute and in = school sone, Suge Dougan supprested narcotics and statements. tn his ‘suppression order Judge Dougan stated that he "rejects any other testimony not specifically found as facts below." studge Dougan went on to stave that, although the police could see into 11 the voom of the apartment from where they were lawfully standing, he did not credit the police officer's “testimony that he saw deug parephernalia on a deck in plain view from outside the office before he entered che office.’ Ry stating that he wan rejecting any other testimony, Judge Dougan broadly swept aside a substantial portion of the officers’ restinony, and te appears that he did eo to sneulate himself trom appellate review. No appeal ia being taken.F. Commonweaith y. Russell Jones & Victor DeJesus, Bamce. Ho, OB0i9C419-7 & 421-7 ‘The defendants were charged with possession of a firearm, The ftxearm vas found in a sotor vehicle that was stopped by the police. dudge Dougan found that the etop and exit order ware appropriate. He went on to hold that, feven after @ 88 gun wae found on one of the defendants, and leven though the degendant aduitted he hed a prior firearss conviction, the entry to the car and digcovery of the Hireare under a seat vere unlawtul. Judge Dowssn prefaced is ruling by stating, “based on the credible presented at the hearing, the court finda the folloving facte and rejects any other testimony not epeciticazly found ae facts below.* Again, Judge Dougan appeared to rroke an effort to inulate his ruling from review, Mo appeal was taken: ©. Commonwealth v. Keon Monteiro, BAMLC. Ho. O607eR562, A.C. Mo. 2006-P-1923. Tn thie case, Judge Dougan cuppreseed a firearm that the defendant threw onto « roof. The defendant was riding 42 bicycle when the police pulled up next to in an unmarked cruiser and asked, “wnat! up, can we ESk to your” The etendant had a panicked look, got ahead of the cruiser, dropped his bike and ran. Officer Tarantino was behind him and sav the butt of a gun at hie waist, and called out, « she's got a gun." ctticer cooley caught the defendant after he had thrown his gun onto a roof during the chaee. ‘The suppres the on order was reversed on appeal, Gefendant was not seized prior to his dropping his bike and running, snd thus the continued setlowing and observattone fof the thnown #iseasm were all Lawtul. of the fret known to the Coamonvealth where Judge Dougan poted in hie factual findings that “any other testimony is specifically not evedited by the court... + ‘The Eiming of the inclusion of this language is Likely noteworthy, a2 Judge Dougan'e suppression order in the case of Commonwealth ¥ Jose Santana, B.M.C. No. O3010R4947, A.C. reversed on September 26, 2005. In that caso, the Appeals Court had gupplenented the findings and rulings with facte testified co by officer cooley uring the suppression hearing. Thus, the reversal there eens to have spurred cudge Dougan to begin including the language that rejects any fact he does not apectfically tind as not credible. judge Dougan, by rejecting as not credible all eeatinony not specifically found ae a fact, Se attempting ro insulate hie decision from appellate review. HieAtecrediting of police officers’ observations of different people as “nervous,* where those people are confronted by the police and are unlawfully post jon of @ firearm, 1 Likewise designed co insulate Rie ruling fom review, and 4s indicative of bias, similarly, he exhibite a lack of impartiality apd bu in his eweeping rejection of testimony as not credible, as most of the cases will involve testimony about where the officer was exployed, how many years he or she had served ae police officers, what his or her backround wae as officers, where he or she was gned, and a multitude of other facte that it woul serve no purpose to not credit and which, if not true, Ely be shown to be falee by any attorney. ‘These attemte to ineulate his decisions tron appellate review show a disregard for the lawisl role of the appellate courte, end = lock of ixpartislity and bi (O08-B:580%) (APPEALS! COURT OF MASSACHUSETTS, 740 Maus. sep. (CENEAAZD guage Dougan recently hesrd and decided several caves in which defendante had entered guilty pleas or sade asst ions, and subsequently sought to vacate the pleaa on grounds alleging ineffective assistance of counsel. He hae allowed several euch motions, and the Commonwealth haz appeaied. The appellate records are not yet complete but concerns have been raised by these most recent matters, In the cose of Hichane AL Amine, BMC. Yo osoicRse2s, the defendant received @ continuance without = finding before Judge Dougan on February 2, 2004, to the charge of sseult and battery ona public exployee. He was subsequently ordered deported. on February 22, 2010, Attorney Michael Clof#i f£1ed a motion to withdraw the ples tender. The notion wae denied after = hearing before Judge Dougan on August 4, 2010. Whar occurred before and at the outset of chat hearing Le troubling. ‘The court docket on Hay 19, 2010, reads as follows: After consultation with guatice Dougan, motion set. for duly 1, 2010, mm iC, contacted ADA Séfice and Attorney ‘ciofti. Also informed Attorney Cioff: that Justice Dougan requires that he bring an affidavit, form previous couneel ~ Attorney Griffin. Dap." fon August 4, 2010, the parties were before dudge Pougan. gudge Dougan opened the proceedings by asking Attorney Cioffi if he had “anything else you want to ste thie morning.” Attorney Cioffi responded that he had been contacted by the clerk's office and sntovmed that, in substance, cudge Dougan had shod the clerk's office to have Attorney Cioffi speak to Attorney Grittin, who had bbeen the plea attorney. gudge Dougan did not directly deny Whe Commonwealth believes that “DNDY are the initials of eaten elerk Denise Donovan.‘that he had hed the Clerk's office to contact Attorney Cioffi and make this requesr, but said io, no Mr. ClofE., chat‘s not, 7 need the record to be straight here. Any of these matters which hhave cone in tzont ef a Court which don’t have ‘any information trom the attorney who reprecerted the defendant at the time I have said to defe coussel and" che Commonwealth that sone informacion from ‘the ‘defense attorney aay be warranted, either fvom you or the Commonwealth, the Comenwesich could ‘subpoena in, eo in any fevent that's the context ok ‘The docket, whlch is presumed to reflec: what actually eccurred, doen not, of course, reflect any direction by Judge Dougan to the clerk's office te contact both che CConmoninealth end Attorney Cioffi regarding contacting and ‘seeking information from the ples attorney, nor any indication chat the Comonwesith should be advieed that ie ‘should gubpoona any person, There is no reason that the clerical employee. who took such care to make thie entry land document the setting of @ date for hearing by Judge Dougan, and the specific request for the clerk to provide advice co Attorney Cioffi as to what he should do, would rake an inaccurate entry. Judge Dougan appeara to have used a clerical employee to engage in an inappropriate ex 1 fhe quotes in chia and the folloring immigration matters fare “based on arate” transcriptions | from the digital Tetordings, now being reviewed. parte contact regarding the evidence that should be adduced at che hearing, end Le indicative of biae In the case of Cononwesith v, Carlos Pena, No. 080) SC 87-4 (pens 2), guage Dougan was Likewise considering motions to withdraw pleas based cn tamtaration consequences, The defendant filed an affidavit that said in part that “ay then defense counsel did nat intora ae that 1 was going co be automatically deported for pleading guilty te these charges. on March 22, 2010, Judge Dougan ce fed the defendant's motion, noting that, “absent an afeidavit fsqn counsel that indicates what he oF she remembers, or whatever thelr menory is about what happened, Bm not willing to credit the affidavit of the defendanc.* Judge Dougan then heard a motion to reconsider on may 2010, There wae etill no affidavit presented from Aetendant's plea counsel, despite the fact that guige Dougan had previcuoly sade clear the importance of euch sn avervent. Rather, defense counsel presented an e-mail that he had received from plea counsel. Juge Dougan accepted that e-mail as evidence over the objection of the Ccononvaaith. In thet e-matl the pi attorney stated that she aid not recall the specific conversation that she had with defendant on the date of the ples, bur that1 never advise 9 client chat there will be no immigration consequences to his plea. in fact, the cpposite is true. 1 siso go over the gresh sheet with thee. Ae you know, part of that green Sheet“ inwives the’ inmuavation "consequence section, I always advise then as to those three consequences. I also, especially if they have Guestions, well before any plea or trial tell then they ‘should definitely conult with an immigration attorney so thar they can be” advined S52 LD opens nd how each nay atzecr thats Status in the country. In this particular what makes me believe that what Carlee said 1s Certainly untrue is che fact" thar he waa facing Gharges involving domestic abuse. f know for a fact that casee involving domestic abuse are certainly not geod for a non-citisen. 7 also know thatthe eentence "he received would certainly trigger gone immigration consequences vi; more then that chi court knows te. ad they mould Hover believe that T actually told. carlos Ghar he would have no imnigration consequences on both thene charges and the eattences he received. (amait of Attorney Kimberly Foster Hirach, Bag.) ‘The judge then allowed the defendant's motion to withdraw Mie plea, saying chats Attorney Foster did not tell pena that as a Fesule of his ples, conviction snd. sonvence, he would be deported. If Pena had been told that as Zoresule of His plea would be deportation or Zoneval, he vould have rejected the court's ‘sentence, withdraan hia tender of admisaion and Eneleted ona new trial. At the tine of hia plea a significant anjority of the jury triala in the Central Division of the Boston Sunscipal coure Deparenent resulted in not guilty verdicts on the most. serious counts of the complaints. There ts a reasonable probabitity that but for the error Ge counsel there would have been a eisnificat, Gitterent, pore favorable reault in the Bisposition of Pena’e cage and the offect if ould have hed on his inmigeation stavus. 6 ‘Judge Dougan’s reversal of his determination that the etendan 2 afeidevit wan not credible is inexplicable. Certainly the defendant's affidavit vas not more credible An Licht of the ples attorney's enail that contradicted by any fair reading materially disavowe and contradicte hie attidacit. The defendant’s former attorney, who authored the evrail, was not called ae 2 witness by defendant, and che e-mstl, utterly snaans ble hearsay, wae taken over the Comomnealth's cbjection. Indeed, udige Dougan Iaoghingly noted that che affidavit was not credible in certain respecte, and that the defendant had not even weitten the affidavie.4 nonetheless, Judge Sougan reversed his prior factual finding that the defendant's affidavit wea not credible, and allowed the motion. AL the end of that hearing the Commonwealth advised ‘judge Dougan that it needed tine to consider whether to appeal that ruling, and then Judge Dougan scheduled hearing on a second case in which the defendant and filed 2 motion to withdraw a plea for the sane reszens. 4 the arate transcript of the digital recording reflects Judge, ‘Dougan saying: "Paragraph Swan written by Counael (laughing), it vaan’t weitten by Mr. Bens (laughing). Te starts out, “I feel a manifest of injustice has occurred,” go, 1 agree with you but I'm looking at the whole thing and I'm crying ‘vo devermine whether or not in Light of and weighing whar wr. Pena hag at gtake here, how much credit to give this Affidavit...After that date, and before the hearing on the next motion, Judge Dougan encountered the ADA. who had represented the Comenwealth and hia supervisor on the sidewslke near the courthouse. Judge Dougan inguired an to Whether the Comonvesith vas going to appeal, and made a comment to the Comonwealth that the decision vhether to appeal might best be put off untill after the hearing on the next notion, as chat could affect the decteson Subsequently, in the case of Comanvealth v Carlow Peak No. 200390784180 (Pena 2], Judge Dougan considering a motion to withdraw 2 plea based on inmigration consequences, on May 13, 2010, Judge Dougan acknowledged that he had engaged in an ex parte conminication that he regretted and that might be interpreted as conveying a view fon the eubstance of the motion. ‘The Commonwealth moved for reconsideration (in Pena 2) and requested an evidentiary hearing, specifically painting fut that the Court ehowld not have silowed the motion based os the affidavic and email without allowing the Comanweatth to crse-cxamine the witnesses, ag the papers wore hearsay and ao che defendant bore the burden of proce ‘Judge Dougan denied that notion. ‘Oudge Dougene conduct in reversing his determination of the credibility of an uncross-exanined affidavit not written by the defendant, in accepting an e-mail over objection and uaing that az the basis, apparently, of the reversal of the prior credibility decermination, where the attorney's e-mail provided no basis to credit the defendant's aftid Ae and reverse the prior denial; in subsequently comnting on the pending decision whether to appeal; and in denying the Commoneaith an evidentiary hearing, all indicate a bias in favor of the defendant and against the Comonealth, and raise concerns of an improper lex parte contact In Pena 2, Judge Dougan wae likewise considering a notion to withdraw pleas based on immigration consequences Ae noted above, on May 13, 2020, he acknowledged that he hed, with respect to the case, engaged in an ox parce coomnieation that he regretted and that night be interpreted as conveying a view on the substance of the motion, and that he would sot allow any action to recuse: because there would, in essence, be no doubt that he was not biased in favor of the Comonweaith. 50, on May 4, 2020, in Pena 2, he heard & eimoay form che defendant plea attorney. That attorney testitted in fubstance that he had no recollection of the defendant's case but that Se hia practice to go over the entire plea tender sheet with s defendant, including immigration6 consequences. He aleo testified chat ie was hie understanding that 4 CHOP and a gentence of less than one year would be locked at favorably by 102, He stated that hhe would not tell s defendant chat a CWOF would not resule sm deportation and that they should conmult with an smmigration attorney. The judge implicitly aiscredived this testimony, finding that, “Attorney Pronk did not tell the defendant the consequences of an adnts charge under federal semigration law would be deportation Attorney Fronk worked diligently and zealously to achleve ‘the disposition imposed in the case becau bbe thought: Ancorrectly that 1 would avoid or prevent an adverse effect in any lemigration proceeding and that is the advice hhe gave the defendant. If the defendant had been told that as a rooult of hie adnleoten he would be deported he would have withdram his tender of admission and requested trial, AE the tine of the disposition of thie charge a significant number of possession with intent to distribute controlled eubstances charges where mended to simple posseseicn or resulted in favorable verdicts for Getendants, There 1s a reasonable probability that bot for the erzer of counsel there would have been a sisnificant, aittorent and mare favorable veoult in the aisponition of 0 the defendants case and the effect 1r would have had on hie immigration statue.” ‘again, im 2010, an the case of Comomearth vs Peguero, No. O701CREBSi, Judge Dougan vas reviewing 5 metion fo vacate # plea based on adverse iemigration consequences. Judge Dougan found the defendant's seit serving affidavit credible and that it raised # aubstantial fesue and thus merited an evidentiary fearing. This Finding vas made even though the affidavit was filled wich legalese and it was cbvicus that the defendant 414 not write ir himself. this finding was made despice the fact that there wae # transcript of the ples colloquy and very clearly in the transcript, defendant's plea attorney, Lucy Rivera, volunteers to Judge Dougan the information that she ‘explained the collateral consequences to her client. tater, during the evidentiary hearing, it wan learned thar Aetendant’s now attorney, Attorney Carvel-Wontes dratted the affidavit, chat the defendant aia not even understand ‘ehat he had said in the affidavit, and that the defendant did not understand what ‘under the patne and penalties of perjury" meant, During the hearing on the motion, Actorney Rivera Restisied that she did not revenber the specific conversation vith the defendant, but that it wae berpractice to inquire about nationality and etatus on the fire Gate and to explain the dnmigration consequences of plea to her client on the day of the plea. Attorney Rivers anawered every question regarding the dmmigration consequences correctly. Judge teugan eubeequently found that Attorney Rivera did not tell Peguero thet the consequence of an sdntasion to these charges under federal Semigration Law would be deportation. In hort, the judge discredited the attorney’ testimony, credited the defendant's teatinony, and allowed ‘the wotien. Mis actions in chese cases raise serious concerns regarding his bias in favor of defendants end against che Connonwenith DIAL ConcLysroN Although sone of these incidente are well in the past, the entire historical record reveals a disregard for the Proper role and authority of a judse, a pattern of Giregard for che statutory scheme, a disregard for the authority of the Legislature, @ disregard for the authority and duty of the Digerier Attorney, a diaregard for the constitutions] separation of powers, and a diaregerd tor Judge Dougan’e obligation to administer the lawe and adjudicate ceses in an impartial manner ” WHEREFORE, based cn all of these facts and actions the Comoneaith believes that recusal is required, Judge Dougan would not appear to be Fair and impertiol co the "average person on the street.” for the foregoing reasons, the Conmonwealth respectfully moves that thie Court, Dougan, d., recuse steelf fron presiding over any future proceedings in connection with the instant martere. Respectfully eumnitced POR THE. COMCRWEALT, District atcoray Por the Suffolk District By he aselseant: Legal Counsel Chief of Appeste Aaeiatant District Attomey BON 563039 One Bulfinch Place Boston, MA c2iia (617) e19-4070, april 18, 2012,