The case of Daniel Tavares Jr. continues to make a national news as an embarrassment to our legal system:
Convicted killer Daniel Tavares Jr. got out of a Massachusetts prison in July and fled the state for Seattle, Wash., where he managed to live for a few months before killing two other innocent people.Some more details:
Once again, the Massachusetts judicial system is under national scrutiny. Once again, people are looking for someone to blame.
Former governor and current presidential candidate Mitt Romney wants to blame Judge Kathe Tuttman, the former Essex County prosecutor whom he appointed to the bench in 2006. Romney has called for Tuttman to resign.
Tavares had completed a 16-year sentence for manslaughter after killing his mother. But he was still being held in jail on $100,000 bail on charges he had assaulted corrections officers while in prison. Tuttman heard Tavares' appeal of the high bail and released him on personal recognizance with no monitoring other than a requirement to report to a probation officer three times a week. Tavares reported twice, then disappeared.
[Republican presidential candiate and former Masachusetts] Gov. Mitt Romney appointed Tuttman to the bench in 2006 but last week called on her to resign for allowing the release without bail of Daniel Tavares Jr. after prosecutors tried to keep him incarcerated on charges of assaulting two guards while serving a 16-year prison sentence for stabbing his mother to death.Many leading figures in the Massachusetts legal community has, not surprisingly, risen to defend the judge. Boston Bar Association President Tony Doniger:
[...]
In July, the Worcester district attorney's office asked to have Tavares, 41, held on $100,000 cash bail | $50,000 on each charge that he assaulted the guards at the Sousa-Baranowski Correctional Center in Shirley. A District Court judge approved the bail request, but Tuttman overturned the decision.
Tuttman, according to court documents, said in her decision, "He doesn't have a history of any defaults on his record. And there is no indication ... that he is a risk of flight, other than the nature and circumstances of the charges."
She also denied a request by the prosecution that Tavares wear a monitoring bracelet, even though Tavares agreed to wear one, according to the records. Tavares, as part of his release, had to remain employed, live in his sister's house in Dighton and call his probation officer three times a week.
But Tavares violated conditions of his probation and fled to the Seattle suburb of Graham, Wash., where he was arrested last week for allegedly shooting to death Brian Mauck, 30, and Beverly Mauck, 28, over a $50 debt. Each had been shot three times in the head at close range.
A terrible tragedy has occurred and our hearts go out to the families who have suffered the loss of a son and daughter in Tacoma, Washington as a result of the actions of a defendant released from incarceration by Massachusetts Superior Court Judge Kathe Tuttman. It is repugnant, however, that presidential candidates would compound this tragedy by using it for political gain and turning it into another launching pad for attacks on the judiciary. Judge Tuttman, a former prosecutor for 18 years, did exactly what the law required her to do under the circumstances and on the basis of the information available to her; that this information may have been deficient is not the fault of the judge, but rather of certain criminal justice agencies. Instead of engaging in an informed debate on serious public policy issues facing our criminal justice system, these presidential candidates have tried to make Judge Tuttman the scape goat for systemic shortcomings. If we succumb to such judge-baiting, we will have lost a valuable opportunity to educate the public about the challenges facing judges every day while they work diligently to deliver fair and impartial justice based on the rule of law rather than emotion. Judge Tuttman, and our independent judiciary, deserves our full and whole-hearted support.Massachusetts Superior Court (something of a Massachusetts trial court system) Chief Justice Barbara J. Rouse:
Judge Kathe Tuttman came to the bench after a distinguished 18-year career as a state prosecutor. Today, unfortunately, she is living every judge’s nightmare: that a principled decision based on the law and the information provided to her was followed by tragic events over which she had no control. All in the judicial community and thoughtful people everywhere are deeply saddened by those events. At the same time, the bar, her colleagues, and the legal community all hold Judge Tuttman in high regard as she continues her work of producing fair, reasoned, thoughtful, and difficult decisions that faithfully apply the law to the facts before her.Ed Ryan, Jr., former president of the Massachusetts Bar Association:
This judge did the right thing [...] The judge did exactly what we ask judges to do. Listen to the facts and apply the law as it is written to facts. Based on what she was given at the hearing, she had absolutely no choice.That all may very well be true, and I am certain that Judge Tuttman feels horrible about what happened and her role in it. But it also obscures a larger point, as the Salem News opines:
Tuttman's defenders say the judge did only what the law requires. If so, there's something seriously flawed with a law which supposes that a man who has served 16 years in prison for killing his mother and is charged with assaulting corrections officers, is honorable enough that he will show up for his court dates.I point this out because the defense lawyers are always looking for changes in the law to get their clients off scot-free or at very reduced punishments.
To paraphrase Charles Dickens, if the law supposes that, then the law is an ass, an idiot.
This horrific crime is being compared to the case of William Horton, a convicted killer who raped a woman and tortured her and her fiance after he walked away from a prison furlough program. The Horton issue helped sink the presidential campaign of former Massachusetts governor Michael Dukakis.
This case is quite different. For one thing, Horton was still serving time for his murder when he was allowed to participate in the furlough program.
But 20 years after Horton hit the headlines, the Tavares case illustrates this clearly: There are still glaring problems with the Massachusetts judicial system that are obvious to everyone - except, apparently, the defense lawyers and judges.
For instance, a while back I was reading Indiana Lawyer, which was discussing the "fairness" of felony murder and whether it should be abolished. "Felony murder" (a term of art distinct from first-degree and second-degree murder, which are indeed felonies) is a legal construct by which the death of an individual during the commission of a felony is considered a murder, whether intended or not by the criminal.
In this very long story in the Indiana Lawyer, there were people who were actually arguing in favor of eliminating felony murder. It didn't matter to them that, um, a criminal would commit a felony, which is horrible by itself (though not to the defense lawyers), and while committing that felony would cause the death of someone. Somehow, this is "unfair." Actually, if I remember correctly, a majority of the people quoted in the article supported dumping felony murder.
And this serves the public how? By putting more criminals on the streets? Funny that the criminal defense lobby talks a good game about keeping criminals off the streets, but when it comes to concrete proposals for doing so, they almost always oppose them, and even want to loosen what we have now.
Assuming for the sake of argument that Judge Tuttman did in fact follow the law, I don't doubt that the law in Massachusetts (a far more crime-friendly jurisdiction than Indiana) was written out of the same philosophy expressed in the Indiana Lawyer about felony murder.
For another thing, we in the legal community have heard a constant refrain from judges about how they do not like the continued erosion of judicial discretion, through such vehicles as minimum sentencing laws. While I don't doubt that this is a source of frustration for judges, frankly, I also don't care.
Judicial discretion was removed specifically through minimum sentencing laws as a result of the 1960's and 1970's era where courts were, to put it charitably, very, very lenient to criminal defendants. Public frustration as these thugs were turned out on the streets by lenient judges to prey on innocents again and again led to enaction of these laws. Frankly, I care more about public frustration than judicial frustration. And so should government, particularly when it comes to the raison d'etre of government, to provide for the public security, when the furtherance is hindered by judges abusing their discretion.
Did this happen with Judge Tuttman? I don't know. But both judges and defense lawyers should consider these factors in future policy.





