Superior Court judge does some Island time

By Aubrey Gibavic - October 19, 2006

Autumn is the time of year when most people head to Vermont or other points north to leaf-peep and enjoy a cup of fresh hot cider. Judge Judith Fabricant headed south from her Brookline home and took a ferry out to a blustery island for the month of October. Although Martha's Vineyard is mostly devoid of apple trees, the fall Superior Court session is ripe with trials and hearings for the picking.

Judge Fabricant has been on the Massachusetts Superior Court bench for ten years. She was assigned by the Chief Justice of the Superior Court to preside over the fall session in Dukes County, which began on Oct. 2 and continues until Nov. 3.

A Massachusetts native, she grew up in Newton and passed through the public school system there, moving on to complete her undergraduate and law degrees at Yale University.

After graduation, Judge Fabricant worked as a law clerk for a federal judge, followed by a stint at the now defunct Boston law firm of Hill and Barlow.

When her husband was transferred to North Carolina to complete a fellowship, Judge Fabricant took up a new challenge in a new state by becoming an Assistant District Attorney in Raleigh. She later returned to Massachusetts, serving as an Assistant District Attorney in Essex County, and then as an Assistant Attorney General in the Government Bureau for nine years. She was nominated and sworn in as a Superior Court judge in 1996.

Judge Fabricant said that aside from a few constant frustrations, she finds her seat on the bench wholly fulfilling. "The objective for a judge is to do the right thing," she said in a recent interview. "And it's a great luxury not to have to be loyal to any particular interest, but to look for the right answer."

Trading her vehicle for a view

For her five-week stay on the Island, Judge Fabricant rented a home one mile from the courthouse, and has adopted walking or biking as her mode of transportation - a stark contrast from her normal commute by car.

"My impression is that the people who live here are happy; that they recognize that they live in a beautiful place; that they enjoy living here; that they tend to know each other and have a nice small community," she said of the Islanders with whom she has spoken.

Even though her days in court are long, Judge Fabricant said she finds peace in spending her lunch break outside, often taking a stroll down to Edgartown harbor.

As for the Island's quaint one-room courthouse, Judge Fabricant said it reminds her of a similar one she came across in a rural part of Wake County, N.C. What she liked about that environment was how the small bar interacted in the intimate climate. She said it is a similar situation on the Island. "I can really perceive the civility among the bar, which is really a pleasure. They're not at each other's throats, they're not fighting, they're not trying to stab each other in the back. They're getting along."

And when the same handful of local lawyers pass through the court on a regular basis, it provides a rare opportunity for the judge and the bar to interact on a more personal level, she said. "I feel like I can get a sense of them very quickly and know who they are, and have a sense of how they practice," she said. "And they can very quickly get a sense of me. Within a month I can feel very acclimated to the environment here."

Judge Fabricant said although the Vineyard has its charms, it is not exempt from the same common crimes you would find in other parts of the state.

"The substance of the cases seems to include pretty much the range of things we see elsewhere, with a heavy emphasis on land use issues. Much more than we see elsewhere, and those are interesting issues," Judge Fabricant commented.

Public misunderstanding and frustrations

Throughout her time on the bench, Judge Fabricant has come to feel that the general public often misunderstands the work and objectives of judges. "There's been a lot of criticism of judicial decisions that I think often reflects a lack of understanding of what a judge's responsibility is," she said, noting that sentencing issues seem to be particularly contentious. "Often the public really seems to have a hard time understanding what it is that we're supposed to do," she said, "and so judges will be criticized for decisions that really are exactly in accordance with the law."

The Superior Court has a set of sentencing guidelines that although not required, most judges often follow, she said. Devised in 1994 by the Sentencing Commission, a group of 15 judges, prosecutors, defense attorneys, and victims, the guidelines recommend a certain sentencing range for each offense, based on the seriousness of the crime and the criminal history of the offender.

"It's important that sentences be, to some extent, predictable and proportional," Judge Fabricant said of her own sentencing practices. "It isn't a matter of which judge you happen to be before at the particular moment. One should be able to predict with some confidence that for a certain offence and a certain criminal history of the offender, that the sentence is going to be approximately within a particular range."

The media, the judge said, often feeds the fire of misconception. She cited the issue of bail as a concept that is often misconstrued.

Bail, Judge Fabricant explained, is only used as a tool to ensure that someone will appear for their scheduled trial. If there is no indication that the person may flee, bail is not required - or appropriate - under the law. "The impression you would get from what you see in the news media...and sometimes what some public officials will say about it, is that the person ought to be locked up because they are accused of a very serious crime," she said.

But these outside frustrations do not enter Judge Fabricant's mind while on the bench. "I make the decisions that I think are the right decisions, and really don't give any thought to how it's going to play in the media. But it's sometimes demoralizing."

Some of the toughest decisions, the ones that do weigh on her mind when she returns home at night and wakes up again the next morning, are sentencing for youth offenders.

"It's very difficult to feel that any particular sentence is really the right sentence when a defendant is young," she said. "When they've not had opportunities that one wishes every young person would have had, but they've committed a serious crime and it's necessary to impose a sentence that reflects the seriousness of the crime. But you have to wonder whether there's some way to craft a sentence that makes it possible that they're going to have a future."

In addition to sentencing frustrations and difficulties, Judge Fabricant said complex immigration issues are becoming more common in the court system. The issue is more widespread and takes on many different faces than most people realize, she said.

Judge Fabricant said she handled one case in Lowell where a Cambodian man was being tried on a serious charge. His family had come to the United States when he was three, and never got around to naturalizing him as an American citizen, she said. The man was convicted and sent to prison and when he is released, will be deported to Cambodia where he only spent his first few years, and knows no one.

"That, in my view, that's a tragedy. That makes me very sad," said Judge Fabricant. "There are multiple perspectives on all of these things, and we need to try to see all of the perspectives."

Judge Fabricant said the Superior Court does not have a policy to check someone's legal status when they appear in court, but that the court process proceeds no matter what immigration questions may be linked to a defendant.

"If we were to ask everyone who comes before the court who has an accent or has what appears to be a Hispanic name, if we were to ask those people are you a citizen? I think we could fairly be accused of inappropriate discrimination." She said there has been an increase in individuals who already have a federal Immigration and Naturalization Enforcement (ICE) detainer on them when they come before her.

Among the myriad difficulties Judge Fabricant mentioned, being a woman in a traditionally male-dominated profession is not one of them. In Massachusetts, she said, it is a non-issue. About one-third of the state's Superior Court judges are female.

"Once in a while I deal with some lawyers who seem to be a bit challenged by it," she said with a laugh, "but that seems to be quite a rare event. People are used to it. It's just not a problem."