considered by many to be the ultimate “gentleman judge,” will soon be
trying cases instead of hearing them.
self-described “Jewish street kid from Havana,” Borenstein will retire
from the Superior Court on Sept. 12, ending a 22-year run as one of the
state’s most-respected and talked-about judges.
will embark on a career as a trial lawyer, an unusual switch for such a
fixture of the court system. Veteran judges who retire from the bench
often set up shop as arbitrators or mediators, in part to avoid the odd
scenario of an ex-judge arguing before a former colleague.
says Borenstein, “I’ll be 58 in September. I want to do other things in
my life. I want to be able to work on political campaigns. I want to be
able to do pro bono work. … I want to go to Guantanamo and defend those
cases. I want to come out openly on civil rights and civil liberties.”
driving his decision, Borenstein notes, are financial considerations;
Superior Court judges are paid $129,694, and his son, Simon (who was
born five months after Borenstein was sworn in as a judge), will soon
be a junior at Carnegie-Mellon University, where the tuition is a hefty
$52,000 a year.
judge says he will join a Boston law firm (the identity of which he
cannot reveal until his last day, according to an ethical opinion he
received), where he will focus on criminal and civil litigation,
appellate practice and “everything else.”
In an interview at Lawyers Weekly last week, a
relaxed Borenstein reflected on his career as a judge.
early days as a lawyer included stints as a staff attorney at the
Roxbury Defenders Committee, a clinical instructor at Harvard
University and a full-time professor at New England School of Law.
36 years old when he first donned a robe, today Borenstein is one of
the elder statesmen of the bench after six years on the District Court
and almost 16 on the Superior Court.
quickly developed into one of the more well-regarded jurists in
Massachusetts. While attorneys seem to agree that he had
defense-friendly tendencies in criminal cases, the judge was lauded as
one who took great pains to decide cases, and to explain himself.
going to miss what I do,” he now says. “I loved being engaged in the
pursuit of justice, as corny as that sounds. I’ve made my mistakes, but
I really love what I do.”
The judge says he could have worked faster on a number of cases and
that he could have been a “better colleague … more available to people.”
asked whether there was a single substantive decision that he regrets,
the judge pauses a few seconds before replying with a decisive, “No.”
came on the bench trying to understand the role of a trial judge,” he
says. “Facts and the law. Individual case by individual case. And not
being concerned about how the next case will be viewed.”
while litigants may walk away dissatisfied with a particular result,
Borenstein says he is proud of the way he reached that result.
“It’s the pillow test,” he says. “Will I put my
head down at night and believe I am right?”
Borenstein acknowledges that he is leaving a
For one, his
adherence to a “case by case” philosophy leads him to one of his pet
peeves: specialized courts.
nonsensical as it may sound, the judge cannot stand the idea of a court
devoted to the cause of, say, wiping out drug problems.
important as it is, I am very wary of pushing judges toward the policy
side,” he explains. “If I start worrying about policy … well, that’s
not my job. A Drug Court? That’s not the role of a judge.”
laments that Massachusetts judges have not done enough to help the
tattered image of the judiciary.
blame us. … I don’t think we have done a good enough job [in defending
judges],” he says. “If it happens in our circle of friends, that’s when
we stand up. But if it’s someone else, we don’t.”
But Borenstein does
not leave the media blameless on this issue.
people in the media love to make judges prophets,” he says. “We’re
supposed to know that someone in our court is going to do something
bad. It sells because people want to be entertained. ... But to have a
politician ask a judge to resign because something went wrong is the
lowest form of cowardice.”
has hardly been immune to such scrutiny. On many occasions he was
openly criticized for arguably “light” sentences. In fact, at one
Reader’s Digest named him one of the worst judges in the country.
it came out, of course it angered me,” he recalls. “But I tried to put
it in perspective. That was based on three of my decisions. … What
angered me is that they ignored all the circumstances behind the
In the end, he says, “I’m a
judge. The nature of the work means I will get criticized. But you know
that bouncing ball in the old movies? I will not lose sight of the
Some say the judge’s defining moment may have
the Fells Acre day care center abuse suit — or the Amirault
case — in which he defiantly stood up to the Supreme Judicial Court in
granting new-trial motions where he felt that the accused had not been
given a fair shake. (A 2005 Lawyers Weekly editorial hailed Borenstein
for his courage in that case.)
There is one thing in particular
remember about the Amirault saga.
overriding theme was how decent, well-intentioned people [prosecutors
and judges] are capable of making huge mistakes. And secondly, how
difficult it is to admit the mistakes we made.”
this day, Borenstein seems baffled why prosecutors could not admit that
the evidence presented to establish child abuse in the case was
improper. “No one has asked, ‘Either we did blow it, or might
we have blown it?’” he comments.
pressed for other memorable cases, the judge shares an account of a
rape victim who doggedly testified at trial, only to watch as the
defendant was acquitted. Borenstein had the opportunity to personally
speak to the victim and explain what had happened.
fact that a jury found the defendant not guilty was part of the
process, but I understood her pain,” he recalls. “She later wrote me a
letter telling me that I helped her understand the process. She said,
‘I respect the result and I will live with it.’”
also remembers the personal-injury case of a man who had a 2,000-pound
piece of steel fall on his leg. His injuries were grotesque and
the defense offered the man a $2 million settlement, Borenstein
unsuccessfully encouraged him to settle. He says the plaintiff looked
him in the eye and told him, “It’s not your life. It’s not your leg.
The answer is no.”
the jury came back with a verdict of close to $6 million, Borenstein
made a point of thanking the man for being brave enough to tell a judge
for his “next career” as a practicing lawyer, Borenstein intends to
stick around the Boston scene for a while and make his mark in the
Massachusetts courts on the other side of the bench.
But somewhere down
the road, he might be heading south.
member of the Florida bar, Borenstein says someday he would like to
help “open” up Cuba, his native country. South Florida would be a great
base to do that from, he notes.
that, however, perhaps early next year, it will be Isaac Borenstein,
counsel of record. He says he is not sure what it will feel like to
walk into court as a trial lawyer.
“I don’t know,” he
laughs. “I don’t expect any favors, and I don’t expect any negative