Berkshire judicial nominee blocked by Governor's Council

BOSTON (State House News Service) - With Lt. Gov. Tim Murray on a trade trip in Germany, a disappointed Gov. Deval Patrick looked on Wednesday as the Governor's Council rejected his nomination of Michael McCarthy for a Southern Berkshire District Court judgeship.

Patrick was unable to cast the tie-breaking vote because Murray, who is leading a trade trip for the National Lieutenant Governors Association, was not present.

Several councilors last week expressed concern about McCarthy's answers to their questions during a three-hour confirmation hearing.

Patrick chaired Wednesday’s meeting, a job usually handled by Murray. The council, which currently has seven members, almost always approves judicial nominees recommended by Patrick and his predecessors.

After the vote, Patrick appeared surprised. “Alright, it’s disappointing but it is your call,” Patrick said. He immediately left the room to attend a meeting and did not comment further.

Councilors Marilyn Devaney, Jennie Caissie and Christopher Iannella voted against McCarthy. Councilors Terrence Kennedy, Charles Cipollini and Thomas Merrigan voted in favor. Councilor Mary-Ellen Manning abstained from voting.

McCarthy, a private attorney in Pittsfield, works at the firm George, DeGregorio, Massimiano and McCarthy. He handles criminal, civil and probate cases mostly. In the late 1980s, he was the Pittsfield city solicitor, and previously he worked for district attorneys in Maine and Massachusetts.

The governor has the option of resubmitting the nomination.

Patrick’s picks for judicial positions rarely fail to win approval.

In December 2011, the council deadlocked in a 3-3 tie on the nomination of Mary O’Sullivan Smith, director of the juvenile justice program in the Plymouth County District Attorney's office, to a lifetime seat on the Barnstable County Juvenile Court. Patrick resubmitted the nomination and the council in January 2011 approved it on a 4-3 vote, with Murray breaking the tie.

Late last year, the council rejected the governor’s decision to reappoint John Bocon to the Parole Board.

McCarthy went through an unusually long interview before the council last week, where he was grilled about how he would handle cases where the prosecution was not proving its case. Councilors asked McCarthy several times about whether as a judge he would offer help to young inexperienced prosecutors. His answers to those questions may have contributed to his rejection Wednesday.

Councilor Marilyn Devaney, who voted against McCarthy, said that while she likes the man, she did not like his answers to questions about helping prosecutors.

“After the hearing, I thought about all the questions he was asked. I felt he was indecisive,” Devaney said. “He is a good guy, a good person, but you have to think about how he is going to rule from the bench.”

Murray declined comment.