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Boston Globe Calls for Investigation Into Superior Court Judge’s Possible Misconduct When He was a Prosecutor

The Boston Globe today published an editorial in which it argued Superior Court Judge Daniel Ford should be investigated for his role as the prosecutor in a 1985 child rape case.  Following his wrongful convictions, the defendant served 22 years in prison before he won a motion for a new trial and was released.  The defendant died last month.

The defendant was charged with molesting several children at a day care center where he worked as a teachers’ aide.  As with many similar day care sex scandal cases that were occurring in the country in the 1980s, the alleged victims gave inconsistent stories amid outright denials that the defendant had done anything wrong.   The defendant was indicted for, among other things, child rape.  The Globe editorialized that Judge Ford made an “awful decision” to prosecute the defendant on the “skimpiest evidence.”  According to the Massachusetts Appeals Court decision that affirmed the defendant’s motion for a new trial, his attorney at trial was a disaster.  He failed to adequately prepare and “was in way over his head.”  Among the trial defense attorney’s many errors were failing to object to improper expert testimony and the Commonwealth’s wildly inappropriate closing argument.  Ultimately, the Appeals Court ruled that because the defendant’s trial attorney provided ineffective assistance of counsel, the defendant was entitled to a new trial.

But the most serious allegations involve the Commonwealth’s alleged failure to provide mandatory discovery to the defense.  The government is required to turn over all exculpatory evidence to a criminal defendant.  In this case, the defendant alleged that the prosecution team failed to provide unedited videotaped interviews with the children that would have benefited the defense, and the prosecution misled the grand jury as it sought indictments.  The Appeals Court wrote that Judge Ford’s “apparent failure” to produce police reports and other materials that could have been exculpatory was “troubling” but did not specifically address the defendant’s argument that prosecutorial misconduct had occurred.  According to the Globe, following the release of the Appeals Court decision in 2009, the Office of Bar Counsel (the organization that is responsible for disciplining attorneys) investigated Judge Ford but took no action and did not release any findings.  Judge Ford, through his attorney, has denied any wrongdoing and said the children’s videotaped interviews were offered to the defendant’s trial attorney.

One of the defendant’s appellate attorneys, Harvey Silverglate, recently wrote an opinion piece for the Globe in which he argued that prosecutors should abide by an “open file discovery” policy, whereby prosecutors share all of their files with defense attorneys.  “Our justice system cannot rely on what is effectively a prosecutor’s honor code,” wrote Attorney Silverglate.

The Globe and Attorney Silverglate agree that a full, public inquiry into the Commonwealth’s decision to prosecute the case, and the actions of Judge Ford as the trial prosecutor, is warranted.  As the Globe correctly noted, “wrongful convictions represent a serious failure of the justice system.  To prevent such miscarriages of justice in the future, it’s critical that the state revisit this painful episode.  Whatever an investigation reveals about Ford, it’s crucial for the Commonwealth to set the precedent that prosecutors will answer for their actions in cases of wrongful conviction.”

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