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Case reassigned after judge refuses recusal order

BOSTON, Mass. — By making “baseless” allegations that a defense attorney’s motion was imbued with gender and racial stereotypes, Judge Eleanor C. Sinnott helped cement that she should have recused herself from a case involving a protestor who had previously made a notorious appearance before her husband in the Central Division of Boston Municipal Court, a single justice of the Supreme Judicial Court has ruled.

Back on Aug. 31, 2019, defendant Antoinette Lilley was arrested for disorderly conduct and resisting arrest while attending a counter protest of the Straight Pride Parade in Boston.

What otherwise might have been an unremarkable arraignment for Lilley and her fellow protesters became anything but when Judge Richard J. Sinnott decided to resist the decision of then-Suffolk County District Attorney Rachael S. Rollins to file nolle prosequi motions in the defendants’ cases.

Instead, as Lilley’s then-counsel Susan B. Church of Cambridge tried to cite law to support Rollins’ position, the judge cut her off and ordered her to be taken out of his courtroom in handcuffs. That prompted the media to descend on the Edward W. Brooke Courthouse, with cameras rolling hours later when Church was brought back from lockup.

At that point, though not acknowledging that he had made a mistake, Sinnott told Church she was free to leave.

“I don’t think it’s necessary to take this any further,” he said.

But within a few days, SJC Justice Frank M. Gaziano confirmed that Church was right and Sinnott was wrong on the law. By insisting that the cases proceed, Sinnott had “precluded the Commonwealth from exercising a fundamental right guaranteed by art. 30 of the Massachusetts Declaration of Rights,” Gaziano wrote.

By Sept. 24, the Commission on Judicial Conduct announced it had launched an investigation into Sinnott’s actions on the bench that day.

Lilley was arrested again on May 29, 2020, this time on charges of assault and battery on a police officer and resisting arrest for her actions protesting police use of excessive force against people of color in the wake of the murder of George Floyd.

Her new attorney, J.W. Carney Jr. of Boston, says it did not immediately occur to him that there was anything significant about the judge presiding over Lilley’s new case. Only when his client asked, “Did she say her last name was ‘Sinnott’?” did he realize there might be a problem.

On Jan. 18, 2022, the prosecution and Carney jointly recommended a term of two and a half years of pretrial probation, running from the date of the offense. But Eleanor Sinnott rejected the recommendation, scheduled the matter for jury trial, and ordered that she retain jurisdiction over the case.

Sinnott explained that she was amenable to the disposition of the case, except for having the sentence run nunc pro tunc, a request for which Carney had had supplied only “barebones” oral support and no supporting memorandum.

That’s when Carney decided to file a recusal motion for only the third time in his 44-year legal career. He argued that Eleanor Sinnott’s recusal was warranted “because her involvement in the defendant’s case creates the appearance of partiality and may jeopardize public confidence in the integrity of the judicial proceedings.”

In his motion, Carney stressed that Lilley did not believe that Eleanor Sinnott was, in fact, biased against her, but that a neutral observer might reasonably question her impartiality because her husband had been “very publicly rebuked for his orders in the defendant’s prior case, which involved substantially similar conduct.”

“In effect, the concern is that it might appear the Court insists on further punishing this defendant because of her involvement in a very public embarrassment suffered by the presiding judge’s spouse during the performance of his official duties in this very court,” Carney wrote.

In a decision issued on April 7, Eleanor Sinnott denied the recusal motion — in no uncertain terms.

She theorized that Carney and his client — who had made two previous appearances before her and one before her husband without requesting recusal — were aware throughout of Lilley’s previous appearance before Richard Sinnott and were only now asking that Eleanor step aside because they had not gotten their way on the sentence.

In what she called a “move akin to an ex parte communication,” Sinnott noted that Carney initially did not file his motion formally but instead provided her a “lobby copy,” suggesting that she might want to consider stepping aside “sua sponte,” which she construed as a “thinly veiled threat.”

As to the merits of Carney’s argument, Sinnott wrote: “Such a feeble argument only finds solid ground in the provincial ideology that once married, a woman is no longer free to think independently from her husband. This also evokes the racial stereotype of an Asian woman being submissive to her husband.”

Those comments gave Carney extra fodder for his May 19 motion for reconsideration.

Had the spousal roles been reversed, he would have moved to recuse Richard Sinnott for identical reasons, Carney insisted.

“The chasm between the Court’s reasoning and the record is a gulf too wide to bridge,” Carney wrote. “If the Court truly believes counsel engaged in sexist, anti-Asian racism, then recusal is warranted because there is absolutely nothing in the record to support that finding.”

Eleanor Sinnott denied the motion without a hearing, prompting Carney’s appeal to a single SJC justice under G.L.c. 211, §3. Throughout, the prosecution neither supported nor opposed Carney’s motions.

Justice Elspeth B. Cypher has now vindicated the positions of Carney and his client. In a July 22 decision, Cypher wrote that she accepted the judge’s statement that she would be able to act impartially in Lilley’s case, satisfying the first prong of the two-pronged recusal test.

However, with respect to the objective prong of the test, Eleanor Sinnott dug her own grave by making “baseless” assertions about Carney’s attitudes, which could make a reasonable, objective observer question her impartiality, Cypher suggested.

“This is exactly the harm the objective prong is designed to guard against,” Cypher wrote.

The fact that the judge’s spouse is currently facing potential discipline for judicial conduct related to the defendant’s appearance before him similarly could create the appearance of conflict or partiality to an objective party, Cypher added, ordering the case to be reassigned to another BMC judge.

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