ACLU, attorney push for transparency in alleged affair between judge and prosecutor

A defense attorney has filed a motion asking a judge to order the release of previously withheld information into an alleged affair between a former top judge in New Bedford District Court and a prosecutor in the district attorney’s office. 

Attorney James McKenna is attempting to overturn the convictions of two men sentenced in district court last year on the grounds that their right to a fair trial was “fatally compromised” because of the alleged affair. The case has the potential to overturn convictions in over a hundred other cases that involved Douglas Darnbrough, then first justice of New Bedford District court, and a prosecutor for the Bristol County District Attorney’s office.

The case rests on McKenna proving the alleged affair — which he argues has been obstructed by the failure of the DA’s office and the Massachusetts Trial Court to share potential evidence in their possession.

McKenna’s motion requested the judge to reconsider ordering the Trial Court to turn over records of its investigation into the alleged affair. The judge previously denied the motion, but McKenna argues new information has made the Trial Court investigation a key part of the case.

The American Civil Liberties Union of Massachusetts (ACLUM) also filed a letter to the court in support of McKenna’s motion. “ACLUM strongly believes that transparency … is essential to protecting the rights of the potentially impacted defendants and protecting the integrity of the criminal legal system,” the civil rights organization wrote in its letter on Tuesday. 

Allegations of the affair first surfaced in September of 2023 in a flurry of anonymous letters that were sent to top court officials, attorneys and members of the ACLUM. The letters, though unsubstantiated and anonymous, detailed times and locations of the alleged affair. It claimed the judge concealed the alleged sexual relationship and continued to preside over cases prosecuted by the ADA.

Shortly after the letters surfaced, Darnbrough stopped appearing in court. A Trial Court spokesperson said at the time he was taking an extended “vacation.” On his return, he was transferred from New Bedford to Plymouth District Court, where he sat for less than one month before resigning. 

Darnbrough’s lawyer at the time cited his health as the reason for his resignation. McKenna cast doubt on the judge’s timeline at a Jan. 5 court hearing.

“When someone resigns because of health reasons, first, they’re not transferred to Plymouth,” McKenna argued. “The Commonwealth cannot sit by as a bystander and say, ‘there may be truth here, but we’re not going to look for it.’” 

The Trial Court declined comment. Darnbrough’s attorney did not respond to a request for comment. 

In January, the court ordered the DA’s office to turn over a summary of its investigation into the alleged affair. The presiding judge described the case at the time as an “undeniably serious allegation that the trial judge and prosecutor were involved in an undisclosed sexual and personal relationship.” 

The DA’s summary, released last week, was brief. It walked back a previous claim, made in a court hearing, that the DA’s office had conducted an investigation and found no evidence of an affair between the judge and prosecutor. The summary asserted that the DA’s office had not conducted an investigation. Instead, the DA’s office made its employees available to cooperate with an investigation led by the Massachusetts Trial Court. 

The judge presiding over the appeal previously denied McKenna’s motion to release the Trial Court’s investigation on the grounds that it was unclear if Trial Court had conducted an investigation at all. However, the DA’s report made clear that the Trial Court led the investigation, not the DA’s office. 

McKenna’s motion requests the judge to reconsider ordering the Massachusetts Trial Court to turn over records of its investigation into the alleged affair. 

The DA’s report called the anonymous letters a smear campaign against the prosecutor. It stated she was the victim of a “years-long campaign of harassment,” in which the harasser “wanted to ruin [our employee’s] name.”

The Light is not publishing the name of the prosecutor because the only reference to her is in the anonymous letters. Her name is not used in the court hearings or the DA’s report.

McKenna further requested the DA’s office to release the name of the person believed to be behind the anonymous letters, which he argued would be important evidence in the case going forward. 

“The District Attorney’s office’s evolving, inconsistent assertions raise at least two concerns that the Court can address immediately,” the ACLUM wrote in its support of McKenna’s motion — ordering the release of the Trial Court investigation and the DA’s investigation into the anonymous letter writer it claims is harassing the prosecutor

The DA’s office is attempting to uphold the convictions of the two men sentenced for sexual crimes last year. One is Gerson Pascual-Santana, who was convicted of molesting a child under the age of 14. The other is Jonathan Rascao, who was convicted of sexually assaulting a mentally disabled person. Both are currently serving out their 2½-year sentences. 

At the January hearing, the DA’s office argued that McKenna’s motion to produce evidence was a “fishing expedition” and “speculation built on speculation.” The summary of its investigation stated its opposition to the court’s order, though it ultimately shared the information “out of respect,” the report stated.

McKenna argued that the DA and the Trial Court have a constitutional duty to share all information and evidence that could further the court’s understanding of the allegations of judicial and prosecutorial misconduct. 

“The District Attorney has chosen to fail to provide information manifestly within its possession,” McKenna wrote. “The game of hide-and-seek is unworthy of the ideals of our system of constitutional justice.” 

Email Will Sennott at wsennott@newbedfordlight.org.