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Montgomery County’s top prosecutor and a judge he recently hired have failed to grasp the ethical lapses of their job negotiations, the county’s chief public defender asserted in a new court motion, and the two men should be required to testify under oath about how far back their job discussions went.
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“At issue here is not whether Judge David Boynton and the Office of the State’s Attorney acted contrary to multiple ethics provisions when he discussed his future employment with that office while hearing cases,” wrote the public defender, Michael Beach. “At issue in this case is when it began.”
Officials at the State’s Attorney’s Office, where Boynton now heads the felony trial division, denounced the motion. “The filing is baseless and without merit,” they said in a statement.
The motion, which specifically asks a judge to tap independent outside prosecutors to handle hearings for a possible retrial in a carjacking case, marks escalated controversy within Maryland’s most populous jurisdiction over how its longest-serving judge as of late last year made the job switch. Over the course of at least six weeks, Boynton negotiated and accepted a job offer from Montgomery County State’s Attorney John McCarthy without disclosing the pending move to at least 18 defendants or their attorneys who appeared before him, according to court recordings and documents.
Md. judge quietly negotiated job with prosecutors while hearing cases
After details of the judge’s transition to McCarthy’s office emerged, attorneys representing four defendants who had gone before Boynton — citing Maryland rules that stress judicial independence — asked for a redo of hearings before a different judge. McCarthy agreed to three of the requests, saying he would do so out of an abundance of fairness for matters held after Nov. 17. The most well-known of those three cases — involving a teenage defendant who shot and nearly killed a classmate inside a Magruder High School bathroom — was the subject of a new sentencing hearing Wednesday. The new jurist, Senior Judge Leo Green Jr., who was brought in from neighboring Prince George’s County, shaved three years from the shooter’s 18-year sentence imposed by Boynton and promised the defendant he’d cut five to seven more if he performs well in a prison geared toward young offenders.
David Boynton makes a statement when running for Montgomery County Circuit Court judge ahead of the November 2020 election. (Video: Montgomery Community Media)
Boynton and McCarthy are fixtures in Montgomery County legal circles, having worked together as prosecutors early in their careers before Boynton became a judge in 2003. In an interview earlier this year, McCarthy said Boynton first expressed interest in rejoining his office on Nov. 17, 2022. McCarthy has said that Beach’s attempt to get a new trial for a case that took place well before that on Oct. 3 and 4 is a pointless exercise that “undermines confidence in the criminal justice system needlessly.”
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“The resolution of [the trial] long preceded any communication or discussion about the possibility of Judge Boynton retiring from the bench or joining the State’s Attorney’s Office,” officials there said in a statement. “Written proof of that fact has already been provided to the defense.”
But in court papers, Beach wrote that on behalf of his client — Tyrece Jones — he needs more assurance in the form of sworn testimony.
“The breach of public trust that occurred in the fall of 2022 and January of 2023 is significant enough that trust cannot be restored with mere proffers,” Beach wrote.
Criticism over Boynton’s job switch has centered on when judges and attorneys should disclose or recuse themselves from possible conflicts of interest. In this case, Boynton negotiated for a job and agreed to take it with one side of the parties before him without telling the other side about it.
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Boynton, speaking through a court system spokesman while still on the bench, said he had done nothing wrong. McCarthy has called the hire a great move for county residents. He also said that about three weeks after Boynton first expressed interest in the job, he presented him to his nearly 85 prosecutors during a staff meeting as the soon-to-be felony trial division director. That became a form of disclosure, McCarthy said, because word of the pending job switch spread swiftly throughout the nine-story courthouse as Boynton continued presiding over cases.
But not everyone knew. The Bar Association of Montgomery County, which has about 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.” Nor could The Washington Post find in court recordings or filings any disclosures to defense attorneys and defendants who came before Boynton from mid-November to early January.
Beach, the public defender, who oversees a staff of about 30 attorneys, said in court papers that he heard rumors “swirling in courthouse circles” in early December about Boynton’s pending job switch but didn’t receive public confirmation until Jan. 4, 2023. Several subsequent events, Beach wrote in the new court filing, illustrate what he termed a “cavalier attitude” on the part of McCarthy and Boynton over not just the job switch but how they dealt with the fallout.
On Jan. 9, three days before one of his clients was to appear before Boynton, Beach filed motions seeking documents from the judge and McCarthy so he could assess when job discussions began. Less than an hour before the hearing was to begin, though, the case went to another judge, rendering Beach’s request for documents moot, according to court recordings.
But Boynton didn’t give up all his cases. On Jan. 18, in one of his final acts as a judge, he issued an eight-page order in a complicated and languishing fatal drug overdose case he had long overseen. Boynton ruled that the case against Raghbir Singh should not be dropped, as argued months earlier by Singh’s attorneys, and stated that the Montgomery County State’s Attorney’s Office — where he’d be working in less than a month — had acted “with reasonable diligence.” On the same day as the Singh ruling, Beach added, Boynton sent an email — from his judicial account — to a future colleague at the State’s Attorney’s Office that listed instructions for his future supervisees.
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“It is not unreasonable to surmise from this timetable a lack of appreciation for the gravity of the ethical problems here,” Beach wrote.
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Those factors and the conflicts inherent in the State’s Attorney’s Office’s position opposing a new trial should be considered in the case of Tyrece Jones, Beach argued. As Beach noted, the line prosecutor arguing against a new trial now works for Boynton. And two of Boynton’s superiors, including McCarthy, are witnesses to when Boynton began discussing a job with the office.
“The defense is not asking for dismissal in this case,” Beach wrote, “but rather an opportunity to be heard on its motion for a new trial, at a hearing, with witnesses, and a prosecutor from an office other than the Office of the State’s Attorney for Montgomery County.”
The matter is months from being resolved. The new judge, Green, must first address whether outside prosecutors should be brought in. He has given the Montgomery State’s Attorney’s Office until Sept. 29 to make its argument in writing and has scheduled a hearing for Oct. 27.
New hearings granted after Md. judge negotiated job with prosecutors
In a separate Boynton case reconsidered this past week, Green reduced the sentence of Steven Alston, the former Magruder High student who shot a schoolmate in a boys’ bathroom.
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The issues in question dated to September 2022, when Alston’s attorney and prosecutors negotiated an agreement that he would plead guilty to attempted first-degree murder in exchange for a reduced prison sentence. The main goal, according to statements made by both sides in court, was to get Alston through the Patuxent youthful offender program, which generally takes about seven years to complete. The exact length of the sentence was to be left to Boynton. Summarizing the plea discussions, Boynton emailed both parties that he was willing to impose a sentence “sufficient to allow defendant to complete” the Patuxent program while maintaining the discretion to sentence Alston to as many as 25 years.
Then came the sentencing before Boynton on Dec. 22. Alston’s attorney David Felsen asked for 8 to 10 years. Assistant State’s Attorney Carlotta Woodward did not request a specific number but cited the plea agreement recommending enough time for Alston to complete the youthful offender program.
Boynton sentenced Alston to 18 years. Felsen called foul, arguing in court papers that the term went beyond prosecutors’ request for enough time to complete the youth program. Felsen asked for a new sentencing before a different judge, citing Boynton’s pending job move as a factor.
McCarthy agreed to the request but called it disingenuous, asserting that Felsen knew about Boynton’s pending job switch before the sentencing yet didn’t ask the judge to recuse himself. McCarthy said that the 18 years Boynton imposed was justified and that Maryland parole rules would allow Alston to be released far ahead of time.
Felsen has declined to say when he learned about the pending job or, if he did, how that affected his strategy. On Wednesday, before the new judge, Felsen and Woodward made the same requests in Alston’s resentencing hearing.
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Green imposed 15 years but also assured Alston that three years from now he could get another 5 to 7 years trimmed off his sentence.
“If you are doing well, and it’s represented to me that you’re doing well,” Green said, “I’ll reduce the sentence to where your lawyer wants it to be.”
Felsen applauded Green’s ruling.
“The judge’s decision affirms the long-standing integrity of the judiciary,” he said.
McCarthy’s office, in a statement, also applauded Green’s ruling and noted that it fell within Maryland’s advisory sentencing range for the case.
“We are gratified that the sentence remained effectively unchanged,” the statement said.
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