At least four cases handled by a Maryland judge are being challenged after he presided over a series of hearings and did not reveal he was in talks to accept a job in the office of local prosecutors.
Md. judge quietly negotiated job with prosecutors while hearing cases
Defense lawyers challenge rulings by former Montgomery County Circuit Judge David Boynton
By Dan Morse
April 15, 2023 at 10:00 a.m. EDT
One sentencing in question includes the high-profile case of a Magruder High School student who shot and nearly killed another teen in a bathroom. In that hearing, Boynton ruled from the bench as McCarthy sat in the front row of the gallery.
Defense attorneys say the way Boynton and McCarthy handled the job switch contradicts Maryland rules designed to promote “public confidence in the independence, integrity, and impartiality of the judiciary.”
National experts on judicial ethics also voiced concerns.
“It’s pretty shocking this would happen. I’ve never heard of something like this,” Richard Painter, a University of Minnesota law professor who served as the chief ethics lawyer for President George W. Bush, said in an interview. “He should have recused himself just as soon as he started discussing the job with prosecutors. It’s the only ethically responsible thing to do.”
The four legal challenges — including one that seeks copies of communications between Boynton and McCarthy about the job — have been assigned to a judge outside of Montgomery County. That jurist, Prince George’s Senior Judge Leo Green Jr., will hold status hearings for the cases on May 3.
Montgomery is Maryland’s most populous county, with 1.1 million residents just outside of Washington. Boynton, 65, and McCarthy, 71, are legal fixtures there, having worked together as prosecutors for 17 years before Boynton moved to the bench. He would become the most senior judge in the county.
Before leaving his post, he said through a court system spokesman that he had done nothing wrong.
“We are confident that Judge Boynton’s upcoming retirement and transition to the new position with the State’s Attorney’s Office (SAO) did not interfere with due process in any past, pending, or new cases,” Bradley Tanner, a spokesman for Maryland’s Administrative Office of the Courts, said in an email response to questions posed to him and Boynton.
McCarthy, in an interview, said Boynton first expressed interest in joining his office on Nov. 17. Some three weeks later, on Dec. 7, McCarthy introduced Boynton in a staff meeting to his nearly 85 prosecutors as the soon-to-be new director of the office’s Felony Trial Division. That became a form of disclosure, McCarthy said, because word spread swiftly throughout the nine-story circuit courthouse.
“I thought it was absolute common knowledge in this building that he was coming here,” the longtime prosecutor said.
But not everyone knew, especially from mid-November to the end of the year before Boynton began curtailing his presiding over criminal hearings. The Bar Association of Montgomery County, which has nearly 2,000 members, said in a statement that it “was not aware of Judge David Boynton’s job discussions with the State’s Attorney’s office or his acceptance of the job.” The local public defender’s office, with 30 attorneys, said it was never told. Nor could The Washington Post find any disclosures in court to defense attorneys who came before Boynton after he expressed interest in the job over that time, according to recordings and documents of 18 criminal hearings he held. The matters included five sentencings in which Boynton imposed terms of six to 20 years.
The review also showed Boynton issued rulings that appeared to be consistent with those handed out in his career.
But guidelines and rules for disclosure, according to courtroom ethics experts, are written for something more fundamental. “The obligation to inform the defendants does not imply that the judge will consciously misuse his power,” said Stephen Gillers, a New York University law professor and author of “Regulation of Lawyers: Problems of Law and Ethics,” a law school casebook in its 12th edition. “The rule protects the defendants’ and the public’s confidence in the justice system and aims to avoid even unconscious bias in favor of the future employer.”
The conflict was completely avoidable, added Laura Kelsey Rhodes, a longtime defense attorney in the county. “We’re in the midst of a national upheaval over the unfairness of our criminal system,” she said. “Why wasn’t it an easy choice to simply recuse himself from all criminal cases?”
McCarthy has served as the county’s top prosecutor since 2006, having been elected in landslide and uncontested races. By the fall of 2022, it was clear he might need to replace the chief of his Major Crimes Division, who had applied to become a judge, and was formally appointed to the position Oct. 20. Then came Nov. 17, McCarthy said in an interview, when Boynton made a comment to one of McCarthy’s top deputies. “He said, ‘You know what, I wouldn’t mind coming back to the office,’” according to McCarthy.
The statement was relayed to McCarthy, he said, and within a week he’d had at least one conversation with Boynton about a position.
On Dec. 2, Camilo Serje, 28, appeared before Boynton to be sentenced. He had been charged with vehicular manslaughter after chasing another car in an impromptu street race that led to a crash, killing a motorist who wasn’t racing.
But because Serje had pleaded guilty, had testified against a co-defendant and had no previous criminal record, his attorneys asked Boynton for a sentence of less than 12 months, according to court recordings. The prosecutor on the case, also acknowledging Serje’s plea and cooperation, requested 18 months. Maryland sentencing guidelines, while not binding, recommended three months to four years. Boynton imposed six years, telling Serje he still didn’t seem to grasp his culpability. “You killed that person,” he said.
Serje did not know that Boynton was discussing a job with McCarthy. “This was never disclosed to Mr. Serje,” defense attorney Justin Eisele wrote in recent court filings as he requested a new sentencing before a different judge.
Maryland’s rules for judges do not specifically address job interviews. But the standards for judicial independence are purposely “cast in general terms” because listing all such conduct isn’t practicable, according to state code. In that spirit, the rules address disclosure: “A judge should disclose on the record information that the judge believes the parties or their attorneys might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.”
Added Gillers, the NYU professor, “The judge and the state’s attorney were required to inform the public defender’s office and private lawyers with cases before the judge of the job discussions personally and as soon as discussions began, even before a job offer was made.”
By Dec. 6, according to McCarthy, he and Boynton had verbally agreed that Boynton would take the position. “Judge Boynton is going to be joining us,” McCarthy recalls telling the staff the next day, proud to introduce someone with deep courtroom experience who could mentor his young prosecutors.
Boynton went back to the bench. Word of the pending move did indeed spread among at least some defense attorneys. “It puts you in a bind,” said Rhodes. “You’re the one who ends up raising the issue — telling a judge you don’t think they can be fair.”
On Dec. 22, Boynton took up the sentencing of Steven Alston Jr. Nearly a year earlier, the 18-year-old was charged with attempted murder after bringing an untraceable “ghost gun” to Magruder High School and shooting another teen in a boys’ bathroom. As the case progressed, Alston’s defense attorney, David Felsen, discussed with prosecutors a way for Alston to plead guilty and — recognizing his age, cognitive limitations and previously clean criminal record — be sent to a prison program for young offenders, according to court records and hearings. The program typically takes six to seven years to complete.
The attorneys met with Boynton to discuss their plea terms. He then emailed them saying he was willing to impose a sentence “sufficient to allow defendant to complete” the program while maintaining the discretion to sentence Alston to as many as 25 years. The final decision, Boynton wrote, would come after he presided over a sentencing hearing.
Speaking first at the hearing, Felsen asked for eight to 10 years. Two of Alston’s teachers also spoke on Alston’s behalf. Assistant State’s Attorney Carlotta Woodward did not request a specific number but said prosecutors were “recommending, as pursuant to the plea agreement, that the defendant be sentenced to enough time that is going to permit him to complete the Patuxent Youthful Offender Program.” The victim’s mother spoke, describing how the shooting shattered her family.
Boynton sentenced Alston to 18 years. About 30 minutes later, at a news conference, McCarthy complemented Boynton: “The sentence that was given by Judge Boynton — and he gave a very detailed account why he gave this sentence — was intended to balance both punishment as well as rehabilitation.”
Felsen called foul. “The sentence imposed was beyond that requested by the assigned prosecutors on the case,” he wrote in court filings, “and exceeded what the court stated would be appropriate for Mr. Alston’s circumstance.”
The sentence was also handed down, Felsen wrote, after McCarthy and Boynton went against state rules by discussing and agreeing on the new job. “There can be few circumstances imagined,” he stated, “where a judge’s impartiality might be reasonably questioned than the negotiation of employment with the other party.”
Felsen asked that Alston be resentenced before a different judge.
McCarthy derided Felsen’s request as disingenuous. The defense attorney knew about Boynton’s pending job switch before the sentencing hearing — as evidenced, McCarthy said, by Felsen talking to a prosecutor about it — yet took no action. “He knew that Dave Boynton was coming here. He knew,” McCarthy said. “He didn’t file a motion to recuse.”
As for the sentence imposed, McCarthy noted that under Maryland’s parole rules, Alston could be released far ahead of the 18 years.
Felsen declined to say when he learned about the pending job or, if he did, how that affected his strategy. “Mr. McCarthy’s deflections don’t excuse his admitted conduct,” the attorney said.
On Jan. 9, in a different case, Montgomery’s head public defender, Michael Beach, filed court papers seeking documents from both Boynton and McCarthy to assess how far back their job discussions went. Three days later, and less than an hour before a hearing in the case, it was switched to another judge, rendering Beach’s request moot, according to court recordings.
“Just as a judge who is leaving to join a private law firm would not and should not preside over cases litigated by that law firm,” Beach said in a statement, “someone considering employment with the state’s attorney’s office should not be presiding over cases brought by that office.”
Even as Boynton knew that defense attorneys were starting to question his pending job switch, he issued a key order — now being challenged — in a complicated but stalled case he had long overseen.
Years earlier, lawyers for Raghbir Singh had asked Boynton to dismiss charges in a fatal overdose case, asserting that delays had violated Singh’s right to a timely trial. Boynton denied the request. Singh then entered a conditional guilty plea to involuntary manslaughter, which permitted him to appeal Boynton’s decision to the Maryland Court of Special Appeals. That court sent the case back to Boynton for “further proceedings for the purpose of re-evaluating Singh’s motion to dismiss on speedy trial grounds.” Boynton held another hearing, in early 2022, ending it by saying he would study the arguments and rule on them quickly.
A year later, on Jan. 18, 2023, Boynton issued his order, siding with prosecutors and affirming his decision.
Two days later, Boynton held a postponement request hearing in a violation-of-probation case. The defendant, having been told by his attorney of Boynton’s pending job switch, requested a new judge. Boynton said yes, and identified a specific date from which recusal would be appropriate. “December 29th was the day that I accepted in writing the offer to join that office,” he said. “And it certainly is a fair request for me that I recuse myself now that I’ve agreed to take the new position.”
Dec. 29 was six weeks after Boynton expressed interest in a job. It was three weeks after he and McCarthy verbally agreed the judge would take job and Boynton was introduced at the state’s attorney’s office staff meeting.
One challenge reaches back to October. Beach wants “reliable evidence” that the job discussions — in the form of copies of their communications — had not started when Tyrece Jones was tried in a carjacking case in front of the judge on Oct. 3 and 4. Without that evidence, Beach asserted in court filings, Jones should get a new trial.
McCarthy said the request goes too far back because it far precedes any job discussions. “There’s no factual basis for that whatsoever,” he said, saying Beach’s request “undermines confidence in the criminal justice system needlessly.”
By contrast, McCarthy said that out of an abundance of fairness, he will agree to new hearing requests for cases that went before Boynton after Nov. 17. “If anyone wants a do-over, we’ll join in the motion,” McCarthy said.
As for the new Felony Trial Division chief, McCarthy said Boynton has exceeded all his expectations — going to crime scenes, mentoring attorneys, getting them ready for trials. “He was a perfect judge,” McCarthy said, “and right now he has been perfect for” the prosecutor’s office.