Last fall’s Governor’s Council battles to confirm Margaret Marshall as chief justice of the Supreme Judicial Court and the appointment of Francis Spina and Judith Cowin to the state’s highest court turned out to be every bit the sideshow one might expect from a court system long considered something of a circus. The courts stand out among governmental institutions in Massachusetts for the mixed reception they receive—reverence and scorn, in roughly equal amounts. The reverence is directed toward the judges themselves, who are generally lauded as intelligent, knowledgeable in the law, and fair in its application—except, that is, for those who are accused, in the press or in hallway mutterings, of bias (against prosecutors, against defendants; against victims of domestic abuse, against men accused of abuse; against landlords, against tenants, etc.), aversion to putting in a full day’s work, or simple rudeness to those who have the misfortune to come before them. Even, oddly enough, vacillation. “I don’t know why someone who doesn’t like to make decisions would apply to become a judge,” says one prosecutor who claims to have encountered some.

But overall, the scorn is more commonly applied to the institution than to the bench. Few public bureaucracies inspire much in the way of admiration or affection, no matter how much they are streamlined, modernized, or “reinvented.” But the courts stand out even among government agencies in the presumption that they are musty, hidebound, impenetrable quagmires, populated by political hacks and responsive to no one’s needs but their own. In the end, judges can at least count on the respect due their exalted status, but the courts they preside over get none at all.

The image of a dysfunctional judiciary persists despite a decade of hard-won progress in the Massachusetts court system. Court reform legislation in 1992, while dismissed at the time as a tepid half-measure, established a degree of administrative rationality and accountability that had long seemed elusive. An unprecedented degree of financial support from the Legislature and even a skeptical administration has done much to alleviate shortages of both judges and support personnel. Nearly $1 billion in bond funding has been committed to rebuilding the state’s crumbling courthouses, $75 million to bringing the courts into the computer age. An antiquated and much-abused system of double trials for criminals has been abolished and a mountainous backlog of civil disputes whittled down to size. And the torch of leadership for this tradition-laden branch of government has largely been passed to a new and energetic generation of top judges, nearly half of them women.

Still there lingers a view that, in Massachusetts courts, the more things change, the more they stay the same. In part, that’s because the past dies hard. Boston lawyer J. Owen Todd, who served as a Superior Court judge from 1988 to 1992, says the courts continue to get a bad rap because the evidence of progress lies in “statistics, which are sterile,” while complaints that the courts are as bad as ever rest on “anecdotal evidence, which is unreliable.” But the lingering impression of the courts as decrepit institutions —not to mention the grain of truth in every disparaging remark—makes court officials who insist that the trajectory of the Massachusetts courts is onward and upward sound defensive, if not delusional.

“The administration of the judicial department should not be a mystery,” Chief Justice Herbert Wilkins, who retired from the Supreme Judicial Court in August, told the Massachusetts Bar Association in a speech last year. But a mystery, for the most part, is what it is.

A PECULIAR INSTITUTION

Making sense of the state’s court system is not easy. Doing so involves imposing a kind of order on what is inherently a fragmented, chaotic, almost unfathomable institution. Indeed, for those who have never prowled our halls of justice—and they are good places to stay away from—a courthouse primer may be in order.

At the top of the Massachusetts judiciary is the Supreme Judicial Court, the state’s “court of last resort,” as it’s called in legal circles, not to mention prisons across the state. The SJC is the final arbiter of state laws and their fair application in lower-court decisions. It is also responsible for “general superintendence” of the court system as a whole, although, as we shall see, the high court has no direct administrative control over the other courts. Below the SJC is the Appeals Court, created in 1972 to provide a first level of appellate review.

The rest of the judicial system is the gaggle of courts in which cases are heard and decided on the facts, collectively known, appropriately enough, as the Trial Court. Under this loose umbrella, the judicial flow-chart spreads like an unruly family tree. At the top is Superior Court, the state’s court of “general jurisdiction”—that is, no dispute brought under state law is beyond its authority. But over time, the Superior Court has narrowed its caseload to major matters of criminal and civil law. All serious felony prosecutions take place in Superior Court, which is organized by county, as do civil lawsuits seeking substantial money damages or “equitable relief,” that is, a court-imposed action.

All other disputes, criminal and civil, are resolved in a dizzying array of courts of “limited jurisdiction.” The largest of these is District Court, a statewide network of community courts—69 in all—that try misdemeanors and lesser felonies, punishable by a maximum sentence of 30 months in a county house of correction. District courts also hear motor-vehicle violations, mental-health commitments, evictions, civil lawsuits for money damages, and small claims. Boston Municipal Court has identical authority, making it, in essence, the largest district court in the state, but the BMC remains, for reasons of historical accident and enduring political clout, separate and independent from District Court.

The other “departments” of the Trial Court, as they are called, are specialized in nature: Housing Court, Juvenile Court, Probate and Family Court (divorce, paternity, custody, wills), and Land Court. Jurisdictions frequently overlap among these lesser courts (both Housing Court and District Court hear tenant eviction cases, for instance), or between them and Superior Court (both Land Court and Superior Court have authority over mortgage foreclosure, and certain civil lawsuits bounce back and forth between District and Superior Court in a cumbersome process called “remand and removal”).

Each of these court departments has its own chief justice who runs the operation according to widely varying traditions. Superior Court judges have no permanent placement but rotate on a “circuit,” sitting in different counties for several months at a time and typically alternating between criminal and civil assignments. In District Court, most judges are appointed by the governor to a specific court, though the chief justice—the redoubtable Samuel Zoll, a permanent fixture of the judicial system—has authority to move judges around. And each courthouse is under the management of a first justice, or presiding justice.

Below the level of judges, the complications get even worse. Each court has its clerk-magistrates, guardians of the paperwork, and their method of selection—and the source of their authority—varies. Superior Court clerks are elected county officials; so, too, are registers of probate. But District Court clerks are appointed by the governor, with life tenure, following approval by the Governor’s Council, same as judges. Court officers—two to a judge—provide security in the courtroom and in holding cells, and a growing number of other security officials man metal detectors at every courthouse entrance. Finally, there is the probation department, which serves (at least) two masters: the judges, in whose name they supervise probationers, and the state commissioner of probation.

It is the trial courts, in all their glorious confusion, that have been the subject of reform after reform. No one would set out to design a court system organized (if one can call it that) this way. But in Massachusetts, at least, things could be far worse—and were, until recently. Well into the 1970s, the individual trial courts—95 in all—were largely autonomous institutions that cobbled together funding from 412 separate state, county, and municipal budget accounts. Courthouses belonged to the counties, which neglected them. Judicial authority was dispersed among chief justices, presiding justices, and individual judges, with the result that no one was truly in charge of the judiciary. And with administrative authority in local courts divided between judges, clerks and chief probation officers, no one was in charge of the courthouse either.

As a result, waste and inefficiency reigned. Six Massachusetts counties were among the 12 nationwide with the longest delays between filing of a civil action and jury trial; in Middlesex Superior Court, cases took an average of five years to reach trial. Half the criminal cases choking Superior Court had already been tried before a District Court judge, and were waiting to be re-tried before a jury.

These endemic problems inspired a push for “court unification” that came in two waves. A 1976 report by the Cox Commission—chaired by Harvard Law professor and Watergate “Saturday Night Massacre” martyr Archibald Cox—recommended consolidating the loosely-organized Probate, Land, and Housing courts into the Superior Court and merging the Boston Municipal Court into District Court. At the top of this two-tiered structure would be the chief justice of the Supreme Judicial Court—the “chief executive” of the court system—with chief justices of Superior and District Court reporting to him. In 1978, however, the Legislature chose to maintain the seven separate courts, each with its own chief justice, as “departments” of a nominally unified Trial Court. A newly-created office of chief administrative justice—Judge Arthur Mason—attempted to impose some order on this organizational hodgepodge.

The problems of dilapidated buildings, litigation backlogs, and crisscrossing lines of authority did not go away, however, but worsened. In 1991 Harbridge House, a management consulting firm retained by the Massachusetts Bar Association, declared the courts still to be “a collection of medieval fiefdoms.” So the state bar campaigned for a fully unified trial court, with the chief justice of the SJC as “chief executive officer” and centralized management under a professional court administrator. The Boston Bar Association—a separate and often competing group, made up principally of members of the large downtown law firms—also weighed in, offering its own proposal for a three-tiered court (Superior Court, District Court, and a new Family and Juvenile Court), with most of the administrative power lodged with the three chief justices.

Once again, the Legislature was willing to do little in the way of consolidating. In the 1992 court reform law, the seven court departments retained their separate existence within the Trial Court. Indeed, the Juvenile Court, which existed then in only four urban jurisdictions, was expanded as an additional statewide department. But administrative authority was substantially centralized in a beefed-up administrative office, under what was now called the Chief Justice for Administration and Management, or CJAM (pronounced SEE-jam). This move was both a management reform and a legislative shot at then-SJC chief justice Paul Liacos, a tireless but combative advocate of judicial independence. Previously, the SJC chief appointed the chief justices of each of the trial-court departments. But now, the CJAM has that power, which doesn’t surprise Dan Pokaski, former clerk of Suffolk County Superior Court for criminal business, one little bit.

“Court reform has always been about power—who has it, and who wants it,” says Pokaski.

IN PRAISE OF STRONG WOMEN

Who has the power in the courts is changing. Specifically, the judicial old-boy network is losing its grip on the wheel. The most visible sign of the shift is the historic appointment of Marshall, the first woman to become chief justice of the SJC. But she is only one of the first-ever female chief justices now leading the courts. In February 1998, Judge Martha Grace took the helm of the Juvenile Court, following the retirement of Chief Justice Francis G. Poitrast, who was the only remaining chief-justice-for-life besides Zoll. (Zoll and Poitrast were exempted from the change to five-year appointments for departmental chiefs in the 1992 court reform law.) And last November, Suzanne DelVecchio became chief justice of Superior Court, the first woman in that post.

But no appointment signalled more of a changing of the judicial guard than the SJC’s naming of Barbara Dortch-Okara, an African-American woman, as chief justice for administration and management, in October 1998. After all, Marshall may be titular head of the courts, but the task of getting the courts to run on time falls to the CJAM. And management comes naturally to almost no one on the bench. “The problem is judges aren’t trained to manage, unless they were managing partners of a law firm,” says Thomas E. Dwyer Jr., president of the Boston Bar Association.

Dortch-Okara, an 18-year veteran of the bench (Superior Court, where she presided over the trial of abortion-clinic assassin John Salvi, and before that Boston Municipal Court), admits that the duties of the CJAM can be a bit overwhelming. “It’s very different from hearing cases,” says Dortch-Okara. “As a Superior Court judge you’re busy, too, but you have a sense of what’s going to happen every day. I don’t know that I could have predicted the kind of matters that I have been confronted with [in this position]. It’s more than a change of pace.”

What it amounts to, she says, is “running a more than $400-million entity with many employees you don’t have any practical means of controlling. You have to influence and try to generate consensus among judges, and clerks, and registers, and the like. It’s very different than running a business.”

That awareness was not long in coming. In January of last year, not three months after she took office, the state’s $7-million-per-year lease on the former federal courthouse in Post Office Square, which had been negotiated by her predecessor as CJAM, Judge John Irwin, took effect. But on February 3, the Boston Herald reported that the building stood empty and that the work necessary to prepare the courtrooms and holding cells had not yet begun; neither had a timetable been established for Suffolk County Superior Court, which was vacating the Suffolk County Courthouse high-rise in Pemberton Square, to move in. Soon thereafter, a mad flurry of activity took place, and the court began to move in, but in drips and drabs, amid complaints that the place still wasn’t really ready for occupancy. It was July before the relocation was complete.

“There was great pressure, internal and external, once we were paying that kind of rent, that we use the building,” Dortch-Okara admits. “We ended up doing a lot of our own work. Some of our own personnel were on the floor, putting down carpet.”

Dortch-Okara has been putting out fires ever since. She had to beat back, or at least negotiate away, an attempt by district court clerks and registers of probate to reclaim some of the administrative authority stripped from them in the 1992 court reform. And last spring, Dortch-Okara found herself outflanked when Boston Municipal Court Chief Justice William Tierney rebelled at a plan to move the BMC temporarily into the structure that Suffolk Superior Court had just deserted, so that the umbilically-attached “historic” building, which the BMC now occupies, could be renovated as the future home of the SJC. Tierney objected to his court being moved into a structure, itself slated for renovation, that many considered to be a “sick building”—a stance that clashed with Tierney’s noted lack of sympathy for his own employees who complained of air-quality problems in BMC space located in the high-rise. Last spring Tierney, a wily veteran of South Boston’s streets and precincts, got his allies in the Legislature to include language in the budget prohibiting the forced move, despite lobbying by Dortch-Okara and Wilkins. Before the much-delayed budget was signed, however, court and state officials agreed to move the BMC to the old federal courthouse instead.

The BMC dust-up is only the most recent reminder that lawmakers keep their fingers in court matters up to the knuckles. The Legislature continues to appropriate funds and set personnel caps on a court-by-court basis. In one almost comic example, the Legislature had to retract positions it had added to the Fall River District Court last year—so that former state senator Thomas Norton could take his Senate staff with him when he became clerk-magistrate—after outcry by the local bar scotched Norton’s appointment to the post.

And then there is the matter of legislative patronage in filling courthouse jobs. “There are abundant rumors that the judicial system has acquiesced in appointments at the recommendation of legislators,” is the way Dwyer, himself no babe in the political woods, gently puts it, though lately, the rumors have gone the other way. There have been grumblings on Beacon Hill that Dortch-Okara, who oversees hiring throughout the court system, does not play ball as legislators expect her to, at least giving “courtesy” consideration to their favored candidates. For her part, Dortch-Okara dismisses as outmoded the suggestion that the courts are riddled with patronage placements. But not long after saying so, Dortch-Okara’s office was hit with a lawsuit from a disgruntled court officer alleging that he was prevented from transferring to a court closer to his home because, unlike many of his colleagues, he lacked a champion on Beacon Hill. (Only in the courts would it occur to anyone to sue over being denied the privileges of patronage.)

But Dortch-Okara has also shown she knows how to take charge. Longtime court watchers took note when the new CJAM appointed her own picks to key court committees. And her first major appointment came in October, when the term of Superior Court Chief Justice Robert Mulligan expired. Under the 1992 court reform, the five-year appointment as departmental chief justice is “renewable,” and Mulligan applied for a second term. But Dortch-Okara gave the post to Suzanne DelVecchio instead.

The new Superior Court chief could not be more different than the old one. Mulligan is sober and serious, his bristly mustache more military than rakish; DelVecchio, with her brassy blonde hair and abundant gold bangles, is chatty (“I talk to everybody”) and flamboyant. Where Mulligan was worried about appearances —making sure that judges were visibly on the bench throughout the day—DelVecchio frets that judges don’t have enough time off the bench to write decisions.

“There’s an impression that if a judge is not sitting on the bench the judge is not performing the work of a judge,” says DelVecchio. “Judges have to write. They are not going to sit on the bench and write just because the public wants the judge to be on the bench.”

Though an abrupt change of style, the appointment was by no means a shocker. A Superior Court judge since 1985, DelVecchio served as vice-chair of the Commission on the Future of the Courts, which issued an influential report on “Reinventing Justice” in 1992, and was on the short list of candidates for Superior Court chief in 1994, along with Mulligan. Moreover, many observers consider a change of chief every five years as very much in the spirit of the reform law.

“The presumption was that everybody would serve five years,” says former judge J. Owen Todd, who chairs the Boston Bar Association’s administration of justice section. “That way there would be a constant renewing of vitality. You wouldn’t have these czars.”

But in appointing DelVecchio, Dortch-Okara also fulfilled the prophecy of courthouse denizens who saw the two as friends and allies in the internal politics of the judiciary, one referring to DelVecchio as Dortch-Okara’s “unofficial campaign manager” for the CJAM post.

GIVING SUPERIOR COURT THE BUSINESS

Wrentham District Court, located deep in the sylvan suburbs of Norfolk County, is the kind of courthouse that is often characterized as sleepy. It usually takes a fracas at Foxboro Stadium—such as the Dave Matthews Band concert, which resulted in more than 200 arrests—to overload the calendar. But on a sunny day in July, Judge Daniel Winslow, first justice of the Wrentham court, has his hands full. Charging upstairs and down, presiding over two courtrooms, Winslow bounces between criminal matters, residential eviction hearings, and a complex commercial-property trial with 30 witnesses.

“It’s a bit of a juggling act,” says Winslow. “If I can create the illusion of two judges in the building, that’s good.”

All bustle and efficiency, Judge Winslow seems an unlikely rock thrower in the glass-house world of the Massachusetts trial courts. A vital, almost puckish young jurist—former legal counsel to the state Republican Party, he was appointed to the bench by Gov. Weld in 1995, at age 37—Winslow relishes the prospect of making a career on the bench. “I can take the long view,” he says, thinking ahead to the mandatory retirement age of 70. “I’ve got 29 years to go.”

But his professional passion for managing justice has gotten Winslow into trouble with the black-robed fraternity. So have his unvarnished assessments of judicial administration in Massachusetts. “If people only realized how backward the court system is, in terms of technology and resources, I think they would have high respect for the fact that anything gets accomplished,” says Winslow. “So compared to us, we’re doing great. It’s just, compared to everybody else, compared to the best systems in other states, we’re not doing so well.”

Winslow caused a stir among the brethren by writing a paper that won the 1998 Pioneer Institute “Better Government Competition.” That paper, entitled “Justice Delayed,” charged that the Massachusetts courts have retreated from their commitment to holding civil lawsuits to strict timetables, and need to adopt new, more aggressive procedures to bring cases to a swift, equitable conclusion. “Civil trials rarely occur on the first scheduled date and often involve numerous false starts,” wrote Winslow. “The consequence of this culture of case management is excessive costs and delays for litigation. People and businesses cannot get their day in court in Massachusetts, and the price of getting to trial—measured in dollars and human consequences—is often too high.”

Winslow’s analysis raised hackles in the judiciary, not least because of the anecdote he used to set up his critique: a heart-rending product-liability lawsuit (a woman severely injured and her passenger killed when her car’s cruise-control self-activated and sent the vehicle hurtling over a cliff) that went through seven false-alarm trial dates before the aggrieved party gave up in disgust, settling the suit for a fraction of its worth. But that lawsuit, on which Winslow served as co-counsel for the plaintiff, took place in the early 1980s—for the Massachusetts courts, the equivalent of the Dark Ages. “That’s not the way business is done in Superior Court today,” sniffs former chief justice Mulligan. His successor, DelVecchio, says she has heard of Winslow’s analysis, but not read it herself. Still, she questions the qualifications of a District Court judge to render a verdict on Superior Court case management. “I don’t know how he knows about us,” says DelVecchio, with uncharacteristic haughtiness.

Winslow’s critique, and its frosty reception, speak volumes about the difficulty of passing judgment on the judiciary today. Defensiveness and territoriality are endemic. But so, too, is pride in the turnaround that the courts have accomplished in the last decade.

Superior Court reduced its inventory of pending cases from 76,000 in 1985 to 40,000 in 1998. In 1992, 46 percent of the court’s pending civil cases were more than three years old; by 1998, only 16 percent. In 1998, the court reduced the criminal case backlog by 1,700 cases, disposing of 10,000 cases in a year when 8,300 new cases were filed —a banner year for court productivity. Once a laggard in all measures, Massachusetts’s general-jurisdiction court fared well in the latest national case-processing rankings. In 1997, when Massachusetts’s clearance rate for criminal cases was an even 100 percent, meaning that the courts disposed of as many cases as were filed that year, only eight states (out of 42 reporting to the National Center for State Courts) did better. In civil matters, only one state—Texas—had a higher clearance rate than Massachusetts (108 percent versus 106 percent).

“We’ve reduced the civil caseload by half,” says Mulli-gan. “By anyone’s measurement, that’s a considerable achievement.”

Indeed it is. But whether it’s enough to mollify dissatisfied customers is another matter. “We’ve had instances where cases have gone on for years. Then we’re told on the day of the trial that it has to be moved, and the new date is six to nine months out,” complains Paul Dacier, vice president and general counsel of EMC Corp., one of the state’s fastest-growing companies. “Recently we had a case where the other side moved for summary judgment. The motion sat on the judge’s bench for two years. That’s ridiculous.”

The Hopkinton-based manufacturer of data-storage devices has gotten its state senator, Framingham Democrat David Magnani, chairman of the Senate Committee on Science and Technology, to propose creation of a “business court,” a division of Superior Court dedicated to handling complex and time-sensitive commercial disputes, modeled on Delaware’s famous chancery court and newer business units in New York and Pennsylvania.

“These companies are involved in largely business-to-business cases that are rather complex, and there’s a level of expertise judges and attorneys require in order to dispose of them properly,” says Magnani. Cases of license infringement or trade secrets need immediate action, he says, and they aren’t getting it. “In these cases, justice delayed is not only justice denied, it makes litigation irrelevant.”

“These are issues that are very complex. They’re document-intensive and initially fast-moving,” says William Prickett, a business litigator at the Boston firm of Testa Hurwitz & Thibeault. “You dump a lot of paper, maybe an affidavit and 65 documents. And you need an injunction tomorrow.”

The court’s cherished “circuit” rotation system exacerbates the problem, critics say. Superior Court judges move from courthouse to courthouse on four- to six-month assignments, generally alternating between civil business and criminal matters. That means, in a protracted case, more than one judge rules on different aspects of the case, “send[ing] it in zigzag patterns,” according to Prickett.

Many judges also take work left over from document-heavy civil sessions with them, drafting their rulings in spare moments between criminal sessions. “This happens to us all the time,” says Dacier. “Four or five years ago, we got sued. There was a huge battle over discovery, and we showed we were not a proper party to the lawsuit. The judge ended up on the criminal circuit. We followed her all over the Commonwealth. A year and a half later, we got a hearing in Lowell Superior Court. A one-sentence decision, and we were out of the case. This is real-life stuff, with real money.”

Winslow may not have gotten DelVecchio’s attention, but these folks have. So, too, has the hemorrhage of important business cases out of Superior Court and into the world of private dispute-resolution services. DelVecchio wants to bring them back, though she thinks she can do it without a specialized court. She wants to expand the use of “special assignment,” that is, keeping a complex case with a single judge. And she wants to hear from businesses and their lawyers about how the courts could serve their needs better.

“One of the things that’s wonderful about these courts, although people think we’re stagnant, we change,” says DelVecchio. “We change as the need arises. Not as quickly as we should, but we do change.”

TAKING THE LAW IN THEIR OWN HANDS

If the pace of justice in Superior Court seems all too deliberate for its critics, in District Court speed is of the essence. Last year, the 69 community courts disposed of nearly a quarter of a million criminal complaints representing half a million charges. “We deal with an enormous volume of relatively simple cases,” says one court administrator. But there has been new method to the District Court madness of late, an indirect and little-noted consequence of the 1992 court reform—and one that raises vexing questions about the quality, as well as the swiftness, of justice in Massachusetts.

For a lesson in justice, District Court style, look no further than the Second Session courtroom in Roxbury District Court. On a day last summer, Judge James Dolan, then the court’s acting first justice, sat at the raised oak bench, peering over his half-glasses and doing a land-office business in justice: one judge, no waiting. “The most important session in a district court is the pre-trial session, because that’s the gatekeeper to the trials,” Dolan explains. “If you get good judges who can evaluate cases, determine what they’re worth, you can dispose of a lot of business at that stage of the proceeding. If that session is run well, that’s where most of the cases are disposed of.”

If anybody can run a session, he can. Dolan earned his spurs as first justice of Dorchester District Court, at the time a tumbledown facility that processed as much human misery as any court in the Commonwealth. Since step-ping down from that post in 1994, Dolan has been a key courthouse troubleshooter—in December, he moved on to New Bedford—for District Court Chief Justice Samuel Zoll. “He’s an extraordinary district court judge who will leave his mark,” says Zoll. Indeed, he has already left his mark at a half-dozen postings, including a stint at Lynn District Court, where one courthouse wag gave him the nickname “Disposin’ Dolan.”

District Court has always been the state’s high-volume dispenser of justice, but never more so than the last several years. The 1992 court reform law did away with criminal trial de novo, an ancient and long-discredited system that gave defendants a trial before a judge, and if they didn’t like the result, a second trial, this time before a jury (originally, in Superior Court; later in selected district courts and the BMC). Zoll says he considers getting rid of de novo “my little contribution to history.” The duplicate trial system “affected the credibility of what we did,” says Zoll. It gave judges in bench trials license to grandstand for the local crowd, imposing harsh sentences they knew would be reduced in the next round; other judges, anxious to settle cases once and for all, tried to avoid de novo appeals by low-balling dispositions. “This place was not for real,” says Zoll.

But Zoll did worry that the end of de novo would result in an avalanche of jury trials. So the court revamped its modus operandi, developing “Ten Principles of Caseflow Management” to help judges dispose of cases without a trial. Among the dictates: “Make All Events Meaningful, and Minimize the Time Between Events”; “Resolve Cases at Arraignment Whenever Possible”; “Invite a Tender of Plea at Every Pretrial Hearing”; and “Do Not Grant Unnecessary Continuances.”

Key to the new system was a change in plea-bargaining rules made by the 1992 law. Under what is called a “defense-capped plea,” a defendant can offer up his own choice of punishment in exchange for admission of guilt, without the prosecutor’s agreement, and without losing the presumption of innocence at trial if no plea is worked out. As a practical matter, this turns the judge into a justice broker, cutting deals with defendants himself in huddled sidebar conferences.

This process has its critics on both sides of the criminal bar. Prosecutors across the board hate the judge-brokered deals. “It’s a bargain between the judge and the defendant. I have no power to stop it,” says Suffolk County Assistant District Attorney Viktor Theiss, head prosecutor at the Roxbury court. “The prosecution is cut out.” Private defense attorneys who take court appointments to represent indigent defendants generally favor the new plea bargaining. “It’s a very good tool for defense lawyers. We like it,” says attorney Rudolph Miller, president of the Roxbury Bar Association. But the state’s top public defender says the pressure to strike a quick deal too often results in a rush to judgment. “What I hate about District Court is the client may not even have a good sense of the possibilities at trial,” says William Leahy, chief counsel of the Committee for Public Counsel Services. “I think rough justice is done, but issues aren’t contested that ought to be contested.”

In the hands of sure-handed, not to say heavy-handed, judges, the new procedures do make cases fly through the courthouse. In one study of district court cases, 37 percent were cleared at arraignment, by dismissal or plea, and another 51 percent at the pretrial hearing. Of the 12 percent disposed in the trial session, only 7 percent of those cases actually went to a jury–less than 1 percent of dispositions overall.

When Judge David Nagle became first justice of Brockton District Court in 1994, he found himself with a backlog of criminal matters–a heavy, urban-court mix of drugs, domestic violence, and drunk driving–that quickly grew to 3,000 cases. It could take a year or more for a case to get to trial. Presiding over arraignment, as was traditional for first justices in that court, Nagle pushed for immediate disposition of minor matters, such as traffic violations. But the court’s other judges, who were more old-school, “were not interested in case management,” he says. The same cases turned over and over, clogging the system. Nagle told Zoll, “you’ve go to give me the team.”

When the more passive judges retired–whether they were eased out no one is saying–Zoll assigned a SWAT team of case wranglers to the Brockton court, beginning in 1996. Dolan and Winslow each did a tour of duty there, and other disposition-minded judges rotated through. When the trial-session backlog shrank to 1,000, the court threw a party. By the end of June, the trial caseload stood at 150. Cases now move from arraignment to trial–those few that go to trial–in two and a half months. And that in itself, Nagle says, makes for quick dispositions. “I think the effective thing is, there are no long tomorrows,” says Nagle. “Nobody’s buying any time.”

This take-charge attitude on the part of District-Court judges is part of a national trend, says Marc Perlin, associate dean of Suffolk University Law School. “What we have seen developing, over the years, is the idea that you need closer judicial involvement in the management of cases. This is a sea change from the attitude 25 years ago. Then, it was up to the litigants and the attorneys; the courts were passive. Now, there is recognition that, to make the system work, the court itself has to take control.”

But at what price? “Everybody’s caught up in the processing of cases,” says public defender Leahy. “It’s become a case-processing system rather that a tryer of fact system. To the extent that the system has avoided meltdown, it has done so by elevating efficiency over justice.”

The recently-opened New Chardon Street Courthouse in Boston, soon to be named after former US senator Edward Brooke, is as good an example as any of the Trial Court’s new face. A glistening temple of stone, plaster, and glass, the new courthouse gives the lie to complaints that government no longer builds public buildings for the ages. Entry into the $102-million structure, which houses Suffolk County’s probate and juvenile courts, the Land Court, the Boston Housing Court, Suffolk County Registry of Deeds, and assorted administrative offices, is by way of a six-story rotunda. An escalator rises into a four-story triangular atrium that is capped by a skylight. Public courtrooms and offices are arranged around the open balconies.

Other brand new court buildings include the $30-million Fenton Judicial Center in Lawrence, the $35-million Brockton Trial Court, and $14-million Chelsea Trial Court, which last fall returned Chelsea District Court to its actual jurisdiction for the first time since 1992, when the court departed for “temporary” quarters in East Cambridge. Courthouses rebuilt earlier in the decade include Roxbury and Dorchester district courts. (The latter renovation gives Judge Dolan particular satisfaction; he rode a trailer in the 1988 Dorchester Day Parade to draw attention to the rodent-infested shacks on the courthouse lawn that served as the court’s offices.) None of these fix-ups includes the $685-million courthouse bond bill approved last year after three years of legislative wrangling, mostly over labor protections. That funding will pay for renovation of the Suffolk County Courthouse and a laundry list of other construction projects.

New digs are not all the court has gotten. The Trial Court’s non-judicial payroll, which dropped during the state’s fiscal crisis from 5,619 in 1990 to 5,134 in 1992, has grown to 7,484 people. Some 1,200 new positions added since 1993 are related to specific initiatives (statewide expansion of the Juvenile Court, beefed up courthouse security, maintenance positions for courthouses taken over from counties, associate probation officers for courtroom duty). State funding for the judicial branch has grown from $298 million in 1991 to $432 million in 1999 and $452 million this year–$426 million of it for the Trial Court.

And the judiciary itself has expanded. Authorized judgeships now number 362. The number of Superior Court judges has grown from 61 in 1985 to 80 today; District Court judgeships, from 153 to 172.

Improved facilities and fatter budgets have helped to improve courtroom functioning as well as morale. But flush funding has also put off dilemmas that are particularly painful to the tradition-bound judiciary, such as consolidating the sprawling District Court. In the rush to fix up the state’s crumbling courthouses, little consideratoin has been given to closing any of the 69 courts, even though several cannot occupy the time of even a single full-time judge. Indeed, a 1995 plan developed by a court committee simply to redraw territorial jurisdiction lines so as to even out disparities in caseload has gone nowhere. “There are all kinds of legitimate local politics at work,” says Zoll. “We don’t have anything at the moment that’s non-controversial.”

Nor any reason to bring controversy to a head. Though court reform was a buzzword of the 1980s and early ’90s, today it barely crosses anybody’s lips. That’s in part a testament to the success of earlier efforts. But it may also be a sign of a court system retreating into insularity at a time when the world is changing all around it.

“The court does not get sufficient input from outside the building,” says Dwyer, the Boston bar president. “There’s too much time spent on how many probation officers there are in what district court. There’s not enough time spent planning for the future.”

Robert Keough is editor of CommonWealth.

CommonWealth coverage of crime and justice is supported in part by a grant from the Gardiner Howland Shaw Foundation.