‘Dangerous’ and ‘stunning’: Attorneys lament Berkshire DA’s bid to oust judge | Local News

PITTSFIELD — Members of the legal community on Wednesday decried as “dangerous” and “stunning” District Attorney Andrea Harrington’s failed attempt to have a district court judge removed from the bench over a series of rulings unfavorable to prosecutors.

Randy Gioia, deputy chief counsel for the Public Defender Division of the Committee for Public Counsel Services, which provides legal services to those who cannot afford an attorney, said the move telegraphs to other judges that they must conform or face consequences.

“Calling for a sitting judge to be removed from their post based on a decision a prosecutor disagrees with is both concerning and dangerous,” Gioia said in a statement. “It sends a message to other judges that they need to fall in line or else face an attack on their livelihood, and it ignores the other avenues available when a party disagrees with a judge’s decision.”

He and other attorneys spoke out about what they perceived as an extraordinary move by a prosecutor that raises questions about her stewardship of the District Attorney’s Office.

Harrington’s assertion in a May letter that Judge Jennifer Tyne posed a “significant threat to public safety” was swatted down this week by the chief justice of the district court system, Paul C. Dawley, who found there was “no factual basis” to support the top prosecutor’s claims of judicial indiscretion.

Harrington has said that she stands by the content of her letter, and in a statement Wednesday, said she is content knowing top district court officials have been looped into what she said are flaws in the system.

“I respect and appreciate Justice Dawley’s review of my multiple concerns,” she said. “I am satisfied knowing that the leadership of the district court is aware that the atmosphere in the court is demoralizing for the prosecutors and victims who are seeking protection and justice.”

After reviewing audio from the cases the district attorney cited in her letter, Dawley had said he “did not hear anything that resembled hostile or discriminatory conduct by Judge Tyne.” Harrington earlier this week refused to say whether she personally had reviewed the audio.

“There are limited options to address concerns with judges,” Harrington said in a statement Wednesday, “but it is my responsibility to advocate for the compassionate treatment of parties and attorneys in the justice system.”

But the dust has yet to settle over the legal community in Berkshire County and beyond, and Harrington’s request has already prompted one local attorney and possible DA candidate, Robert Sullivan, to call on Harrington to resign.

Full press release from Attorney Robert Sullivan

Harrington lodged her written complaint with three of Tyne’s superiors, including Dawley, who investigated Harrington’s claims. Attorneys said it was an abnormal avenue that Harrington took, since complaints against judges are typically investigated by the Commission on Judicial Conduct. But Harrington has said it was appropriate for her to raise her concerns with the “decision makers” within the district court system.

The communication also raises questions about whether Harrington infringed on the separation of powers with the coequal judiciary, said Jedd Hall, a Berkshire defense lawyer and former prosecutor. Hall said he now feels “less confident” in Harrington’s “ethical choices.”

“She’s the executive branch; she has nothing to do with the judicial branch,” he said of Harrington. “The fact that the top prosecutor tried to have her [Tyne] basically removed because she wasn’t in line with the decisions the DA’s office is making is stunning.”

Harrington seemed to acknowledge the issue in her May 14 letter to Dawley and two other judges.

She wrote that she has “profound respect for the separation of powers between the judiciary and the Commonwealth” and asked that “Tyne be precluded from presiding over criminal cases in Berkshire County” only as a “last resort” necessitated after “efforts to seek relief from the appellate courts have proved unsuccessful in remedying a pattern of dangerous rulings and hostile treatment of victims and prosecutors” by Tyne.

Gioia said his statewide agency supports Judge Tyne “not just as a former public defender but as a jurist and peer who is respected because of her fair and even-handed approach.” He commended Dawley for “making a prudent decision that was firmly grounded in facts — that is what judges are supposed to do.”

Tyne was appointed to the bench in 2017 after serving as a prosecutor, defense lawyer and appeals attorney for indigent clients in criminal cases. In her first term, Harrington campaigned in favor of criminal justice reform and steered away from the traditional cash bail system in favor of expanding the use of dangerousness hearings.

In her letter, Harrington argued Tyne’s refusal to revoke bail for a suspect triggered events leading the the slaying of Lemond Grady recently in Pittsfield. Tyne said prosecutors’ request was based on an unsigned statement accusing Grady of violating an order to stay away from Edward Jennings, who now is charged with killing Grady.

Tyne asked prosecutors to produce Jennings to testify, but Jennings did not respond to a summons.

Attorney Shannon Plumb, who represented Grady, acknowledged that without Jennings’ testimony, there wasn’t much evidence to support prosecutors’ request to revoke her client’s bail.

“Judge Tyne is a judge for a reason,” she said. “She knows the rules and she follows the rules.”

Harrington wrote that Tyne “regularly exhibits hostility towards the prosecutors who appear in her court,” behavior Plumb said she has never seen from Tyne. Rather, Plumb said Tyne expects attorneys to come prepared and becomes “rightfully annoyed” when they are not.

On a broader scale, Plumb said the promises Harrington made during her campaign as a progressive prosecutor have not materialized.

“It’s disappointing, it’s really disappointing, because there was a lot of hope for this administration that there was going to be a progressive platform going forward, and nothing that was promised has manifested and if anything, things are worse and the credibility of the office has suffered,” she said. “Their focus is seemingly less on justice and more on headlines, and that’s certainly not helpful to Berkshire County.”

Another attorney handling one of the multiple criminal cases that Harrington cited in her letter, Timothy Shugrue, said the legal community was “blindsided” by the district attorney’s request to have Tyne removed from the bench.

“She went after a judge that everyone considers fair and impartial,” Shugrue said, describing Tyne in positive terms that were echoed by attorneys Elizabeth Quigley and Nathaniel Green.

Shugrue said Harrington brought up his case with three judges without notifying him, running afoul of the rules and prompting him to question whether the District Attorney’s Office will prosecute the case fairly.

“We’re supposed to have mutual respect and trust in one another,” he said. “That trust has been questioned.”