State Court Bench Loses One of Its Best

By Harvey Silverglate 

The Massachusetts judiciary – and as a result, the people of the Commonwealth of Massachusetts – are about to lose one of liberty’s most effective and reliable friends. But just because state Superior Court Judge Isaac Borenstein will retire from his life-tenured position on the state’s trial court on September 12^th doesn’t mean that he will disappear altogether from the battle for freedom, decency, and fairness. Instead, he plans to conclude his 22 years of service on the bench by returning, at age 58, to a law practice emphasizing civil rights and civil liberties cases. 

Judge Borenstein’s departure from the bench follows an increasingly typical narrative; he isn’t leaving his judicial post because he’s tired of it. He explained to David Yas of the Massachusetts Lawyers Weekly that he likely would have continued his judicial career for a while but for the fact that his son Simon is a student at Carnegie-Mellon University. Private colleges like Carnegie-Mellon, which costs $52,000 a year, put public servants like Borenstein in the unfortunate and unenviable position of having to decide between providing for their children’s education – and facing financial hardship – and keeping their jobs. This trend is playing out around the country as our courts – both state and federal – continue to suffer judicial flight due to the inadequate salaries given to even our most seasoned judges. (Judge Borenstein and many others on the bench could easily earn in private practice a salary worth several times the $129,694 that he currently earns.) 

While I’ll be sad to see him leave the bench, the realities he faces mean that I can’t fault him for making the decision he did. I hold Borenstein in high regard for his wise and prudent decisions and actions on the bench – which happen to be his claim-to-fame among the local bar members. However, my respect for him is partly rooted in, and was very much enhanced by, his brave and principled decision to grant the defendants’ motion for a new trial in the tortured Amirault case.  

That case, which readers might be familiar with as the “Fells Acres Daycare Case,” was one of the earliest instances of the nationwide sex panic in the early 1980s, where prosecutors, social workers, jurors and many judges believed the testimony of 3 and 4-year-old children who alleged, after being tutored in their stories by cops and social workers, that workers in pre-school day-care centers performed the most astonishing, vile, unbelievable, and often literally physically impossible sexual assaults on them. (The Pulitzer Prize-winning Wall Street Journal columnist Dorothy Rabinowitz ably documented that national panic in her highly-regarded 2003 book, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of our Times.) The Amiraults had already brought their case up to the Supreme Judicial Court of Massachusetts by that point, but the high court had issued a disgraceful decision penned by then-Justice (now Harvard Law professor) Charles Fried denying them relief on the ground that “finality” was a major judicial value that sometimes had to trump truth and justice. Recognizing the enormity of the injustice done to the three members of the Amirault family accused in that case, and seeking perhaps to do an end-run around Justice Fried’s and the SJC’s ill-considered “finality” ruling, Judge Borenstein later granted the defendants’ third motion for a new trial, though his decision was subsequently overturned -- the second such reversal in the case -- by an obdurate SJC.  

Judge Borenstein’s attempt to do justice for the Amirault family, even in the face of hostility from the state’s highest court, was the right thing to do. I suspect that in the long run – from the standpoint of ethics – it will have longer and more influential impact than the SJC’s misguided reversals of lower courts’ attempts to do justice. Borenstein proved that sometimes there’s more wisdom on the trial bench than at the appellate level of the judicial system. His wisdom and courage will be missed, but I for one, recognizing that he could not stay on the bench much longer, now look forward to his new career as a trial lawyer promoting civil rights, civil liberties, and elementary justice from the other side of the bench.