|
Getting your Trinity Audio player ready...
|
The state’s supreme court has appointed a special master to investigate an alleged affair between a former judge and a prosecutor that potentially resulted in unfair trials.
As special master, retired Boston Municipal Court Judge Ernest Sarason Jr. will have access to non-public records from the Trial Court’s late 2023 investigation into the alleged affair between former New Bedford District Court Judge Douglas Darnbrough and Bristol County Assistant District Attorney Karlyn Butler.
Sarason will also have the power to subpoena witnesses and documents to “investigate the nature and extent of the relationship.”
After completing his investigation, Sarason will have 45 days to file a report with the Supreme Judicial Court. It will be impounded and only visible to the justice hearing the case.
Supreme Judicial Court Justice Serge Georges Jr. issued the order appointing Sarason as special master on Tuesday, the day before a scheduled hearing on an appeal relating to the alleged affair.
Attorney Jim McKenna is representing two men who were convicted in New Bedford District Court two years ago, just before anonymous letters surfaced alleging that the prosecutor and judge in those cases were having a secret affair. Darnbrough was transferred to Plymouth, then resigned, shortly after the letters started to circulate. McKenna says an affair would have jeopardized the integrity of his clients’ trials.
Georges named the prosecutor, Butler, for the first time in a public court filing on Tuesday.
McKenna has asked the court to compel the Bristol County District Attorney’s Office to release records he believes could be exculpatory for his clients. He praised Georges’ decision to appoint a special master on Tuesday.
“It will help lead us to the truth,” McKenna said.
Wednesday’s hearing on McKenna’s discovery motion is still expected to go ahead.
McKenna is seeking information on the DA’s investigation into the allegations, the identity of the anonymous letter writer, and the reasons for Darnbrough’s resignation. His motion also asks the judge to consider ordering the Commission on Judicial Conduct to release information about Darnbrough’s resignation.
Later on Tuesday, Darnbrough and the Trial Court separately filed motions seeking to intervene in the case. Darnbrough’s attorney wrote that the records include “sensitive information” that could affect his reputation, legal rights, and privacy.
Darnbrough’s filing states that he denies the affair happened.
The Trial Court argued that it would be entitled to be heard by the Supreme Judicial Court to potentially protect “confidential judicial information,” if the Trial Court’s investigation into the alleged affair becomes relevant to the case.
McKenna’s clients are Gerson Pascual-Santana, who is serving a 3½-year sentence after he was convicted of molesting a child under 14, and Jonathan Rascao, who is serving a 3-year sentence on charges of sexually assaulting a mentally disabled person.
McKenna has argued that if the judge and prosecutor were having an affair as they worked on these cases, it would have “fatally compromised” his clients’ right to a fair trial. His filings say the anonymous letters, combined with Darnbrough’s abrupt resignation, should have prompted the DA’s office to do a deeper investigation.
The DA’s office has said it relied on the Trial Court’s investigation into the letters, which found “no evidence” of an inappropriate relationship. The office has also cast doubt on the reliability of the anonymous allegations, saying they are part of a harassment campaign against the named prosecutor.
A representative for the DA’s office did not return a voicemail seeking comment on Tuesday.
The outcome of the appeal before the Supreme Judicial Court could impact a large number of other criminal cases.
The state’s public defender organization filed a motion last month seeking access to the same records McKenna is asking for. The Committee for Public Counsel Services says its preliminary look at case data from the DA’s office shows the same prosecutor and judge were both involved in about 3,700 other cases.
The organization argues it should have access to the discovery records in this appeal because they could contain exculpatory information for other defendants its lawyers represent.
The American Civil Liberties Union of Massachusetts has also sided with McKenna’s clients in their appeals.
Tuesday’s order is the first new development in the appeal since November, when the Supreme Judicial Court cancelled oral arguments. The court then paused the case in December with no explanation.
How an alleged affair reached the state’s highest court
Court officials and lawyers started receiving anonymous letters in fall 2023. They included detailed allegations that Darnbrough and Butler were having an affair and coordinating on cases outside of court.
Darnbrough stopped appearing in court after the letters appeared. A Trial Court spokesperson at the time said he was on “vacation.” When he returned, he was transferred from New Bedford to Plymouth District Court, where he sat for less than a month before resigning. Darnbrough’s lawyer at the time cited health reasons.
The letters prompted McKenna to appeal his clients’ convictions in New Bedford District Court, asking the court to order a new trial and order the DA’s office to release records on its internal investigation. A judge from Cambridge District Court was appointed to preside over the case as a neutral party.
At the time, the DA’s office said in filings that McKenna’s request was “speculation built on speculation.”
The judge ordered the DA’s office to provide a summary of its investigation, which revealed that the office had relied on the Trial Court’s investigation instead of conducting its own. The summary said the investigation found “no evidence” of an inappropriate relationship.
The DA’s summary also said the letters were part of a “years-long campaign of harassment” against multiple employees of the DA and the trial court, which included “widespread” letters and an in-person confrontation with Butler. The DA’s office has not identified the “suspected harasser,” saying in filings at the time that the harassment was under criminal investigation.
The district court judge denied McKenna’s requests for more records and a new trial because his “claims rest almost exclusively on the anonymous, unsigned, and unsworn notes.”
McKenna appealed to the Supreme Judicial Court last spring, asking it to reverse the district court’s judgments.
This story includes reporting from previous stories by former New Bedford Light reporter Will Sennott.
Email reporter Grace Ferguson at gferguson@newbedfordlight.org
