On March 16, 2012, J. Owen Todd and Michael Thad Allen of Todd & Weld LLP, together with former Federal District Court Judge Nancy Gertner, filed a brief with the Supreme Judicial Court of Massachusetts ("SJC") as counsel for Amici Curiae who were appearing in their capacity as former Federal and State Judges (Margaret A. Burnham, Suzanne V. DelVecchio, Allan van Gestel, Mel L. Greenberg, Rudolph Kass, Patrick J. King, Nancy Gertner, Charles B. Swartwood, and J. Owen Todd). The case before the SJC involved a complaint with the Commission on Judicial Conduct alleging that a judge had repeatedly exhibited "disregard for the law, lack of impartiality, and bias against the Commonwealth" in connection with his dispositions and sentencing in criminal cases, in violation of the Code of Judicial Conduct.
The Amici Curiae brief argued that judicial independence requires the recognition of an absolute privilege for a judge's deliberative processes, that a judge should not be forced to disclose deliberative records that are protected in any other branch of government, and that an absolute judicial deliberative process privilege will not interfere with the Commission's work.
In a decision rendered on August 9, 2012, the SJC supported the arguments made in the Amici Curiae brief and concluded that "although holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential, it must be accomplished without violating the protection afforded the deliberative processes of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent. In so concluding, we formally recognize a judicial deliberative privilege that guards against intrusions into such processes-a protection we have implicitly understood as necessary to the finality, integrity, and quality of judicial decisions. Such a privilege is deeply rooted in our common-law and constitutional jurisprudence and in the precedents of the United States Supreme Court and the courts of our sister States."
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