Browny was Chief Appellate Attorney of first the Massachusetts Defenders Committee, and then its successor, the Committee for Public Counsel Services. He was one of the brightest people I have ever met, and one of the most humble.
I am particularly mindful, as we reflect on Gideon, of his teaching that wise judges recognize rather than resent, as many judges sadly do, the zealousness of those who appear in front of them, realizing that they can only do a good job as judges when presented with strong arguments and authority from both sides. Browny recounted how he had read that transcript of the Boston Massacre trial, and how like practice just before and just after Gideon it seemed, with presumptions, burden shifting and other pro-conviction tools. It was Gideon, which ensured (or at least started to ensure) that the counter arguments were made, and thus changed the substance of the criminal law. This must be one of the strongest arguments for a so-called Civil Gideon.
A very different, and yet ultimately the same story, about ensuring that both sides are heard to do justice, was told me by Browny about a then prosecutor (and former defender), Dan Toomey, who died ten years ago.
In the mid 1980’s Browny took a call from Dan, by then Chief of Appeals at the Worcester MA DA’s office. The legislature had recently re-enacted a death penalty, and a cop had been shot and killed in the County. If the DA sought a report to the state Supreme Court seeking a pre-trial ruling on the constitutionality of the death penalty statute, would the public defender file a brief? Well, replied Browny, we usually don’t file amicus brief’s because we do not have the time. The conversation continued (as best recalled and reconstructed by me from his recounting)
Dan: Well, let me put it another way. If there were a serious constitutional defect in the statute, and the case were in the SJC, and the defense lawyers had not noticed the defect, and I called you and told you about it, would you file a brief?
Browny: Well, in those circumstances, I suppose we would.
Dan: In that case I will file for a report.
The result, of course, was Commonwealth v. Colon-Cruz, striking the death penalty statute. Massachusetts has never had a death penalty since, and indeed, I believe that since that date, no state has enacted an ultimately constitutional death penalty. I worked on the public defender amicus, and while I honestly believe that my work made no difference at all to the result — the statute was glaringly unconstitutional — it is still the work of which I am probably the most proud. Death is different.
Dan remembered that the prosecutor’s first obligation is to do justice. Nothing he did was improper, he merely acted to ensure that both sides were heard, and that thus a conscientious court could render a just result.
There is a footnote to these stories. About ten years later there was an opening on the state Supreme Court, and a newspaper called Browny to tell him that the list of three names that had gone to the Republican Governor as finalists included Dan’s name. Did Browny have a comment about by then trial Judge Toomy. Again, as Browny recalled it: “After I had recovered from almost falling off my chair, I replied ‘Oh, I think he has always been a fair judge.'”
P.S. Before posting, I showed the above to Dan’s daughter Kathryn Toomey, and she replied:
My favorite line of your blog is: Dan remembered that the prosecutor’s first obligation is to do justice.
I have never been on the other side of the fence. I have not been in a prosecutor’s role. I had grown up with a dad who was the 1st Asst ADA, to the then DA-John J. Conte. This particular thought exhibits how my father approached his job.
My father died over ten years ago. I am in the local courthouses of Worcester County on a daily basis, every time I am in the buildings I hear wonderful reflections and stories from attorneys, judges, clerk’s probation employees, etc….. as to qualities of fairness and justice exhibited by my dad. I am proud that his obligation was to do justice.
What a wonderful tribute from a loving daughter whose father was surely equally proud of her.