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 12th 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.