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A select group of lawyers will soon receive a secret packet of documents relating to the alleged affair between a New Bedford judge and prosecutor. But first, the lawyers must agree not to share the information.
A justice for the state’s supreme court shared plans to release the packet at a hearing on Wednesday in a case that hinges on the existence of the alleged affair. The hearing took place one day after the court appointed a special master to investigate the matter.
The Supreme Judicial Court is now trying to answer a question that could potentially impact thousands of criminal cases: Did former New Bedford District Court Judge Douglas Darnbrough have a sexual relationship with Assistant District Attorney Karlyn Butler?
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’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.
They have appealed to the state’s highest court, seeking new trials and records from the Bristol County District Attorney’s office. McKenna says the alleged affair would have “fatally compromised” his clients’ right to a fair trial.
The DA’s office has said it relied on the Trial Court’s investigation into the anonymous letters, which it says 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.
After Wednesday’s hearing, McKenna said he was happy with the court’s order to release the secret records. He said he doesn’t know exactly what the packet includes, but it seems to include material from the Trial Court’s confidential investigation.
“Justice depends on truth, and now we can reach the truth,” McKenna said after the hearing.
Supreme Judicial Court Justice Serge Georges Jr. asked the lawyers to draft an order for him to sign that would limit who would be allowed to see the secret documents.
McKenna asked Georges if the state’s public defender organization could be included, but the justice said no. He stressed that only a limited group of people involved in the appeal would be able to see the documents.
Georges said he wanted to be fair to the Trial Court, which said it grants employees confidentiality during internal investigations so they can speak candidly.
“I’m sensitive to the issue of the chilling effect this might have,” he said.
Case grows after appointment of special master
Lawyers for five different clients, including individuals and public agencies, attended Wednesday’s hearing.
Georges said he would approve motions allowing Darnbrough and the Trial Court to join the case. Both filed their motions on Tuesday, after Georges appointed the special master to investigate the alleged affair.
As special master, retired Boston Municipal Court Judge Ernest Sarason Jr. will have the power to subpoena witnesses and documents to “investigate the nature and extent of the relationship” between Darnbrough and Butler. His report will be impounded and only visible to the justice of the court.
Darnbrough attended the hearing but declined to speak with reporters. His attorney, Alan Brown, told Georges that Darnbrough denies having “any inappropriate relationship” with Butler. Brown said his client was joining the case because his personal and professional reputations, as well as his privacy interests, are at stake.
The Trial Court’s motion to join the case signaled that it would try to protect “confidential judicial information” if its internal investigation became relevant.
Attorney Daniel Sullivan, representing the Trial Court, argued that widely releasing investigation materials would undermine the Trial Court’s ability to investigate workplace issues. He mentioned the potential chilling effect that Georges later echoed when talking about the secret packet of documents.
Georges denied a motion to allow the state’s public defender organization to join the case. The Committee for Public Counsel Services has said thousands of other defendants could be impacted by the alleged affair. It sought access to information shared in the case, which it argued could be relevant to those other defendants whose cases involved Darnbrough and Butler.
“The court has an obligation to turn over exculpatory information,” said Michaela Martin Strout, who represented the organization.
Martin Strout said the organization should be able to intervene now so it can have a say in the scope of the investigation that’s currently underway. But Georges said it’s too early to let the organization in on the proceedings, because “we don’t know if there’s any ‘there’ there.” He aimed to keep the case focused on the facts of the alleged affair and the single appeal at hand.
Georges instructed the lawyers included in the case to schedule initial meetings with Sarason, the special master, who will be in charge of the discovery process. Once Sarason finishes his investigation, he will have 45 days to file his report with the court.
This story includes reporting from previous stories by former New Bedford Light reporter Will Sennott.
Email reporter Grace Ferguson at gferguson@newbedfordlight.org
