Housing judge confirmed despite efforts to extend confirmation process

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Boston State House

Boston State House

BOSTON (SHNS) – Amid accusations of professional misconduct and a “smear campaign” against him, the Governor’s Council confirmed a new Housing Court judge on Wednesday after narrowly agreeing to move ahead with the vote despite one councilor’s attempt to continue his nomination hearing after the first interview was partially inaccessible to the public.

The council voted 6-1 to confirm Gov. Charlie Baker’s appointment of attorney Sergio Carvahal to a judgeship after deciding on a closer 403 vote to move ahead with his confirmation this week. Councilor Marilyn Devaney was joined by Councilors Chris Iannella of Boston and Paul DePalo of Worcester in seeking a continuance to next week, and Devaney was the lone vote against Carvajal’s confirmation.

“This is the most unusual situation that has ever happened,” Devaney said at Wednesday’s meeting where the votes took place.

The council’s public interview with Carvajal was nearing the five-hour mark on July 28 when the video livestream suddenly stopped. With the State House still closed to the general public, the live YouTube stream is the only way most people are able to watch the proceedings of the panel that vets and votes on new judges in Massachusetts.

Devaney chaired that hearing and had not yet had her turn at the microphone when the livestream cut out. The Watertown Democrat said that around 600 people viewed the hearing online, and she heard from several who wanted to know what happened after the video stopped.

“They want to hear my questioning, and they wanted to hear how I concluded, what happens next. When does the council vote, all of that. So none of that was — and those people don’t know the procedure. So with all the letters and the calls I got, I thought, you know, I’m not representing myself, I’m representing the people. And they didn’t hear the whole hearing,” said Devaney.

Devaney said Carvajal was unavailable for several weeks, so she scheduled a followup hearing for the next available date — Monday, Aug. 23. It was advertised on the council’s website, and Devaney estimated it might have lasted around 10 minutes.

“It’s out in public, it’s on our website, public website, everyone out there knows, every councilor was notified that that’s what it is,” Devaney said. “And we’ll vote [Aug. 25] … You know, no one wants this over more than I do. But we serve the public … And if the council votes today, the people will be contacting the councilors and saying, what happened?”

But by a narrow vote, the council decided 4-3 to move ahead with a second day of interviewing.

Western Massachusetts Councilor Mary Hurley warned of a “dangerous precedent” if the hearing were allowed to resume next week.

“It was basically the fault of the electronics for some reason shutting down. It went on ’til 6 o’clock. And we didn’t have anybody here to fix it. It was the kind of thing, if you want the people to know what you said, and what questions you asked, and what you might have said at the time, you can write it out like you write out everything else, and send it out,” the East Longmeadow Democrat said, apparently referring to Devaney’s practice of distributing printed copies of her speeches.

Some council members, including Hurley, said they were previously informed there would be no meeting next week and had made other plans.

Councilor Eileen Duff, whose portion of the hearing was partially cut off by the terminated video stream, opposed continuing the hearing and charged that Devaney wanted to “showboat.”

“I think your opinion on this man is very clear, that you don’t like him or support him,” Duff said, as Devaney repeatedly called out, “I object.”

“Our staff doesn’t even get to take a lunch break on Wednesdays. So to be asking them to stay to showboat, I think, is outrageous,” Duff said.

Iannella said the Housing Court judgeship had been vacant for six months and wondered aloud whether one more week made any difference.

Assemblies where the council votes on nominees have long been open to the public, although the lengthier nomination hearings were once a closed-door affair. The council was still conducting its interviews with prospective judges in private in 1972, when Councilor George Cronin Jr. sought to open those hearings to the public.

During the publicly-available portion of the July 28 hearing, councilors raised questions about Carvajal’s conduct in foreclosure-related cases, and Devaney went so far as to ask Baker to pull back the nomination.

Four witnesses raised complaints at the hearing largely stemming from Carvajal’s interactions with pro se litigants in the Worcester area.

Sarah McKee, a retired federal prosecutor and INTERPOL lawyer who now volunteers for the Mass. Alliance Against Predatory Lending, said Carvajal subjected retired public school teacher Dolores Sweeney, a self-represented litigant, to “harassment and threats” and “stepped over the line” from zealous representation of his client, Webster First Federal Credit Union, into the territory of potentially criminal conduct.

The alliance critized the decision to take the vote Wednesday with what it called “unseemly haste.”

At issue for much of Carvajal’s hearing in July was a 2019 email sent by Carvajal to Sweeney in which he asserted there was “no likelihood of success” in her case and she could be on the hook for attorney’s fees.

Jubinville said Carvajal was clearly threatening her. “Wasn’t that the point of this thing? To get her to sign the damn documents. And put the pressure on, and that if she loses, she’s got to pay her legal fees,” Jubinville said to Carvajal, adding that Sweeney would not actually have owed attorney’s fees in that scenario.

“Every litigant has their own emotional truth, and we as professionals cannot always address or resolve that particular problem,” Carvajal said in his opening statement to the council. “This approach, whether in the hallway or in mediation, has allowed me to effectively represent clients – both landlords and tenants, of all types, zealously and fairly.”

His answers later in the hearing were concise. Under questioning from Jubinville about the Sweeney email, Carvajal said, “I wanted the case resolved.” He said that if he could do it over again, he would “rephrase” in order to not cause “emotional stress.”

In supporting Carvajal’s confirmation this week, Jubinville said he did not believe “that what he did was sufficient enough to say that he should be castigated for the rest of his life,” and that he believed Carvajal would “learn” and “grow” from his mistake.

South Coast Councilor Joseph Ferreira, who was absent from this week’s vote, said at the hearing that he did not think Carvajal’s actions amounted to intimidation. “That’s called negotiation,” the former police chief said at one point.

Devaney said she had asked Baker to withdraw the nomination “to save face.”

“They feared you,” Devaney told Carvajal. “They did not want to come because they figured the council’s going to vote yes, and they’ll be really in deep trouble.”

During Wednesday’s vote, Hurley charged that McKee, the retired INTERPOL lawyer, did not have the “wherewithal” to weigh in on Massachusetts state law, and called the allegations against Carvajal a “smear campaign.”

“You know, if you want to take a shot at somebody, tell the truth, the whole truth, and nothing but the truth. And don’t take one single thread and try to weave it into a coat or cloak of lies,” Hurley said.

The council cleared the decks Wednesday of several other pending nominees.

On unanimous 7-0 votes, councilors cleared Securities and Exchange Commission senior trial attorney Rachel Hershfang for an Appeals Court judgeship and confirmed two new District Court judges — Assistant Attorney General Asha White and Somerville District Court first assistant clerk magistrate William Farrell. Samir Zaganjori, a supervisor in the Middlesex district attorney’s office, was also confirmed to the Boston Municipal Court bench. Zaganjori formerly worked for J.W. Carney Jr. & Associates where he led research and drafted legal pleadings for James “Whitey” Bulger’s defense team.

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