A judge is allowing a man convicted in New Bedford’s district court last spring to review the details of a misconduct investigation into the prosecutor and judge who served on his trial.
The order is part of a legal case that was reopened this fall after anonymous letters began circulating in New Bedford that accused Judge Douglas Darnbrough of carrying on a secret romantic relationship with a criminal prosecutor while continuing to oversee her cases.
Darnbrough stopped appearing in court shortly after the letters surfaced in September. He then resigned in November at the age of 56, indicating through an attorney that he was stepping down because of a health problem.
Shortly after Darnbrough’s resignation, an attorney filed a motion for a new trial on behalf of Gerson Pascual-Santana, a 51-year-old jailed for indecent assault of a child, writing that his client “had the right to a fair, impartial, disinterested judge,” not one involved in an undisclosed romantic relationship with the prosecutor.
The motion thrust unproven rumors that few lawyers had been willing to openly discuss into the center of a legal case playing out in open hearings in the city’s busiest courthouse.
Pascual-Santana’s attorney, James McKenna, said he filed the motion as part of a larger inquiry that the state’s public defender agency is conducting into hundreds of cases that Darnbrough served on with the accused prosecutor.
The appeal cleared a key judicial threshold on Wednesday, as a judge specially appointed to oversee the case granted McKenna some limited powers to subpoena new evidence.
Judge David Frank will allow McKenna to review an internal investigation by the Bristol County District Attorney’s office, which continues to employ the prosecutor who served on Pascual-Santana’s trial and is seeking to uphold the conviction she won.
Frank, who typically sits in the Cambridge District Court, began his order with a summary of the case law governing post-conviction discovery, the process McKenna is using to obtain access to potentially exculpatory evidence.
In the previous decision of Commonwealth v. Ware, the state’s highest court found that defendants “must make a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial.”
Frank weighed that standard against a guideline established in Commonwealth v. Duguay that says judges can deny discovery if the defense “provides nothing more than mere speculation.”
In his own order, Frank wrote that McKenna had presented “minimal” evidence to suggest the anonymous allegations of an inappropriate courthouse relationship were true.
“The defendant’s claim rests almost exclusively on unsigned and unsworn written statements from an author (or authors) whose name, address and identity are unknown to me and presumably to those individuals who received it,” Frank said.
Without more evidence or an identifiable source to lend credibility to the anonymous accusations, Frank said he would not grant the defense broad discovery powers.
The judge denied McKenna’s request to subpoena confidential records from the Massachusetts Trial Court and the Commission on Judicial Conduct, which investigate claims of prosecutorial and judicial misconduct. It is unclear if either agency opened an investigation into the allegations against Darnbrough.
But Frank said he is still allowing the defense a “narrow” range of discovery powers. He ordered the Bristol County DA’s office to produce records clarifying whether the office “learned of any evidence of an inappropriate personal relationship between the prosecutor and the trial judge.”
McKenna has already indicated that he plans to seek additional discovery powers from the judge to obtain evidence directly from Darnbrough and the accused prosecutor if the DA’s investigation did not already do that.
“Should the Commonwealth have breached its duty to conduct a thorough investigation by failing to obtain the relevant phone records, Mr. Pascual-Santana would seek those records independently,” McKenna wrote in his original motion for post-conviction discovery.
Frank ordered the DA’s office to provide a summary of its investigation by January 29. McKenna then has until February 12 to review the documents and file any additional motions.
