When a judge views his position on the bench as an adjunct to law enforcement rather than a referee over the police authorities’ adherence to the rule of law, it’s time for him to get another job. Failing that, a conscientious judge should at least remove himself from a case ("recuse himself,” in legal jargon) when he feels that his role as neutral arbiter of justice is in danger of being compromised.
A recent Boston Globe report by Milton Valencia, published the day after the sentencing of Khairullozhon Matanov, provides sufficient grounds for questioning the ability of U.S. District Judge William Young to provide neutral justice in “terrorism” cases, particularly those growing out of the Boston Marathon bombing. The attack on our city’s iconic event has tested our society’s ability to apply the fabled “rule of law” with sufficient objectivity, as evidenced by Judge Young’s own words.
Valencia reported that when Judge Young sentenced Matanov to a rather lengthy 30 months in prison for misleading, rather than cooperating with, FBI agents investigating the Boston Marathon bombing, Young “huffed” the following admonition to the now 24-year-old defendant: “All we asked you was to give us a hand. All we wanted was for you to help us out, and you didn’t do that.” (emphasis added)
Us? Is Judge Young a member of an independent judiciary, or does he see himself as a member of the prosecution team? If Young considers himself so allied with the agents who were supposedly misled, or with the prosecutors seeking to imprison Matanov for his failure to cooperate fully, then recusal surely was in order, thus allowing the case to be randomly assigned (as cases are in Boston’s federal district court) to be handled by a more dispassionate judge.
One may puzzle over Judge Young’s motives for assessing Matanov such a long sentence for essentially clearing his internet browsing history, as well as committing what is one of the most controversial and dubious crimes in the excessively vague federal criminal code – making false statements (not under oath) to federal agents. These statements are almost never recorded, and if a defendant contests what the agents claim he said, it’s his word against theirs. Very few defendants, even innocent ones, win these prosecutions, which is why almost all of them plead guilty in exchange for an anticipated, or sometimes agreed to, lower sentence (Matanov faced a possible 20 years in prison if convicted).
While there are surely, in the current struggle with terrorism, some aspects of a monumental contest between “us” and “them,” there is a third party to which our loyalty – and especially the loyalty of our judges – is owed, namely the rule of law. That loyalty is being severely tested, and the vigilance of citizens becomes more urgent than ever.
Harvey Silverglate, a criminal defense and civil liberties lawyer, is “of counsel” to the Boston law firm of Zalkind, Duncan & Bernstein LLP. He is the author, most recently, of "Three Felonies a Day: How the Feds Target the Innocent" (Encounter Books). Timothy C. Moore, Silverglate’s paralegal, assisted in producing this piece.