An attorney is seeking new trials for two men convicted in New Bedford’s district court as unsubstantiated rumors about a judge who resigned late last year have begun to shake up previously closed cases.
The motions for a new trial are based on allegations of misconduct made in anonymous letters that began circulating in the city’s legal community this fall, setting the stage for an unusual case where an unknown source continues to circulate letters that are influencing the direction of the litigation.
The anonymous letters allege the top judge at the New Bedford District Court, Douglas Darnbrough, carried on a romantic relationship with a criminal prosecutor while continuing to preside over her cases, including a pair of bench trials where he convicted and sentenced the defendants directly.
The attorney who filed the motions, James McKenna, is pursuing the cases at the request of the state’s public defender agency, the Committee for Public Counsel Services. McKenna said he took the cases on as a bar advocate as part of a larger review of hundreds of cases by CPCS.
McKenna filed the first motion for a new trial in November on behalf of Gerson Pascual-Santana and another motion in December for Jonathan A. Rascao. Both men are serving two-and-a-half year jail sentences for indecent assault.
Initially a courthouse rumor that few lawyers would risk their reputations to discuss openly, the allegations of an inappropriate relationship between Darnbrough and the prosecutor are now documented in public records and being explored in open hearings at the New Bedford District Court, where a specially appointed judge is weighing whether the claims of misconduct justify reopening the criminal cases of two incarcerated men.
While McKenna acknowledged in a recent hearing that anonymous letters typically have “limited evidentiary value,” he argued that recent events have since “corroborated” the claims, justifying their use as grounds to seek additional and potentially exculpatory evidence through post-conviction discovery.
When the first letters surfaced in September, Darnbrough stopped appearing in court despite being listed on the judicial assignment schedule. A spokesperson for the Massachusetts Trial Court said Darnbrough took that time off as vacation.
But Darnbrough never returned to hear another case in the New Bedford District Court. After an absence that lasted almost three weeks, court administrators briefly reassigned Darnbrough to another courthouse in Plymouth, where he sat as a judge for three days in October before taking another extended leave of absence.
Then, in early November, Darnbrough tendered his resignation in a brief letter to the governor, ending his eight-year judicial career at the relatively young age of 56. Darnbrough has indicated through an attorney that he resigned because of a health problem.
The Bristol County District Attorney’s office, which employs the prosecutor accused of having an inappropriate relationship with Darnbrough, is on the opposing side of McKenna’s litigation. In their filings, prosecutors challenged the premise that Darnbrough’s resignation “corroborated” the rumors, characterizing McKenna’s argument as “wholly speculative.”
During the latest hearing on January 5, Assistant District Attorney Gillian Kirsch said it was her “understanding” that the Bristol County District Attorney’s office has already investigated the allegations and found no inappropriate relationship occurred.
The DA’s office did not respond to a request for comment from The Public’s Radio seeking to confirm that the office had investigated the accusations and determined they were baseless. The office also told the American Civil Liberties Union of Massachusetts two days before the hearing that it had no investigative records in its possession to share in response to the ACLU’s records request. This correspondence was included in McKenna’s most recent court filings.
McKenna’s filings argued that if the district attorney has not conducted a thorough review of the alleged inappropriate relationship between Darnbrough and the prosecutor, then he will seek to gather evidence himself through the discovery process, including documentation of any phone calls and text messages that may have occurred between Darnbrough and the prosecutor.
McKenna is also seeking any statements that Darnbrough and the prosecutor may have made to other agencies investigating the matter, which could include the Massachusetts Trial Court as well as the Commission on Judicial Conduct, a state agency responsible for investigating complaints against judges.
“In the ordinary course,” McKenna wrote in a motion for post-conviction discovery, “the applicable records of the Trial Court and the Judicial Conduct Commission are not subject to dissemination.”
“Given that a relevant admission by either the judge or the prosecutor would be exculpatory,” McKenna said his client “has a constitutional right to any such statements.”
Judge Darnbrough has retained attorney Ed Ryan, who recently stepped down from the Judicial Conduct Commission after serving a non-renewable six-year term.
