The Middlesex Prosecutor and The Irish Nanny Ainsling McCarthy

I was asked what my opinion was in the matter of Aisling Brady McCarthy the Irish nanny who spent two and a half years in prison for a crime that never happened. I had not followed the case closely so I tend not to comment in those situations but being asked I will throw in my two cents.

I have always had questions about the way the Middlesex District Attorney’s office operated. As a young defense lawyer I hated going there because the assistant DAs had no discretion on cases. They might as well have been robots since they had to recommend for a sentence whatever some unknown person hiding in the back office told them was appropriate. That was a poor way to run and office since the front line attorneys were treated like children, the same way the FBI treats its agents.

After about eight years I switched hats and became a prosecutor. Our system of handling cases gave the attorneys in the court full discretion to work them out. I had one woman who worked with us for two or three years who left for a better position in Middlesex. Within a couple of months she was calling me continually asking to come back for less pay and to be a line attorney again. Her complaint was that she had no discretion in handling her cases. There were people higher up in the office who made all the decisions.

Our philosophy was that we hired attorneys who were smart and had common sense. They would not be on our staff unless they had the ability to make decisions on the best way to handle the case themselves. We had some assistants who threw marshmallows at defendants, others who hit them with sledge hammers. Over the years it worked out fine. I guess the difference is we trusted our assistant district attorneys while the other offices did not.

Marian Ryan the Middlesex DA is running scared. She took a little bit of a beating in the Jared Remy case where her assistants let him slip through rather than taking a harder stance. Monday morning quarter backing them they were excoriated when Remy went out and murdered the woman he had been abusing. There is no way of demonstrating that had they done everything proper then Remy would not have done the same thing at another time. Her experience in the Remy case made her tighten up control even more.

The problem with Marian Ryan that I see is that she has spent her whole life as a prosecutor.  When she left law school she joined the Middlesex DA’s office and has been there over thirty-five years. That type of career leaves a person with a lacuna in understanding what constitutes justice. Her first instincts are to protect herself; to pretend that she is omniscient and without fault. She cannot understand we are all mortals and subject to making errors and that it is best to err trying to do good than to do harm while trying to avoid error.

I am afraid that I cannot do any better in writing about this matter than the Boston Globe’s columnist Yvonne Abraham who has done an excellent job covering it. Here she talks about how the Middlesex District Attorney’s office deliberately withheld evidence that it should have disclosed. She quotes David Rossman, a professor of law at Boston University who correctly noted that a prosecutor’s job: “is to do justice, and that means even if they are morally certain a person did it, and there is a piece of evidence in their hands that in the eyes of a reasonable, objective person would make it seem less certain the defendant is guilty, they’ve got to turn it over.”

As an aside, I’d note Ms Abraham does not seem to have looked at the U.S. Attorney’s office in Boston.  If her zeal for exposing those who hide exculpatory evidence was universal she certainly would find lots there to keep her busy.

Yvonne Abraham here tells how the Middlesex DA’s office kept Aisling McCarthy in prison on high bail using disingenuous arguments to the court. Her ADAs suggested that because she was an Irish citizen and here illegally were she to be release she would be immediately deported. That, of course, is a lot of nonsense and they should have known it since ICE (the immigration gang) would have deferred to the court and the DA’s office.

Overall when a district attorney is running scared she will hide evidence and do nothing except dispense the severest form of punishment which includes keeping people in prison on bail who should not be there. Marian Ryan has become a prisoner trapped by the belief that all that matters is convictions and being seen as tough on crime. She has lost her way. She, like here predecessor DAs who brought us the abomination known as the Fells Acre Day Care Case, have no concept of justice and fair play. She has lost her way.

Aisling McCarthy never should have been held in prison for two and a half years. Early on it was evident there would be trouble proving the case. Ryan should have been concerned for the defendant and not for herself and released her on bail.