[Sidebar] The Worcester Phoenix
February 13 - 20, 1998


Law and disorder

Conflicts and controversy at Dudley District Court forced presiding justice Milt Raphaelson to walk away from his post. Now the prestigious judge is fighting to preserve his legacy and his reputation.

by Kristen Lombardi

[RAPHAELSON] THE DAY WILL BE FOREVER etched in his memory. March 1990, and Milton Raphaelson, a 67-year-old judge with startling eyes and an affable demeanor, stood on-stage at Mechanics Hall before 600 friends, family, and officials. Speeches were made, oaths were taken. It was the pomp and circumstance Raphaelson had waited for much of his life.

"I stood there, nervous and excited, thinking, This is the culmination of a great deal of time and effort," he recounts.

The day Raphaelson became a district court justice might have marked a crowning moment in a lengthy career. Through sheer drive and conviction, he had built a reputation in the Worcester legal community as a "super lawyer" who strove to do right by clients. Now, it seemed, he could expect a decorative retirement.

But accolades never prompted him to apply for the post. Instead, he had a cause, for which he's championed loudly and incessantly ever since. "I made a promise to do something about substance abuse and [its connection to] crime," he explains.

Raphaelson has kept the pledge. In the past two years, while presiding over Dudley District Court, he's become an innovator in court-based drug and alcohol treatment. Under his guidance, the Dudley court boasted alternative-to-jail programs for offenders with substance-abuse problems, long before the state Supreme Judicial Court launched a May 1997 initiative that mirrored Raphaelson's work. He has given lectures at conferences, hosted tours for Boston court employees.

His crusade, however, had its price. For a sitting justice, Raphaelson's advocacy has always been rare. But it soon was perceived as passionate, even fanatical by his detractors -- a reckless use of the much-esteemed bench. Even those who admire Raphaelson admit to growing weary of his unremitting promotion.

His unorthodox sentencing, in which he occasionally handed down homework assignments, often attracted media attention. Yet lately, his candor on the system's inner operations has commanded the spotlight, propelling him into a world of controversy. It started to unravel in November, when Raphaelson stunned the legal community by resigning as Dudley's first justice. After a long-standing feud with the court's clerk-magistrate, Kenneth Candito, over such administrative issues as parked cars on the courthouse lawn and coffee in courtrooms, Raphaelson decided to serve the circuit only as a fill-in judge. He then publicly lambasted his Dudley successor, Judge Vito Virzi, for ordering the court's in-house counselor, Peter Kosciusko, to leave the premises just three days after Virzi's arrival, thereby dismantling the programs that took Raphaelson years to develop, and prompting the unexpected resignation of Kosciusko. (Just this week Virzi re-instated the "Honor Court" program which will be held at a nearby church.) Simultaneously, Virzi expelled a lunch cart from the court, which two mentally handicapped women had operated, one for seven years.

Raphaelson then intensified the heat by revealing his perception of the affair during a few stressful weeks when friends actually worried about his physical health. Essentially, Raphaelson has said, his superiors -- primarily, District Court Chief Justice Samuel Zoll -- aren't supporting him because of his frank manner. "The administration wants me to don my robe and have proper presentation," he maintains. The experience left him so distraught, he took an extended leave before returning to the circuit as a traveling judge last week.

For the man behind the controversy, this is not a matter of professional ego. His actions around his resignation, apparently, stem more from a world view. "My father believes that the system works," explains Raphaelson's attorney son Henry. Throughout 36 years of legal work, Raphaelson says, he's tried hard to make a difference, only to watch his Dudley legacy slip away. In essence, this self-described "idealist" is finally learning the system isn't always fair.

LAW, AS A PROFESSION, never entered Raphaelson's mind during childhood. And this is an ironic realization for him today, as he sips coffee and reflects on his life's work. Raphaelson may not say so, but his pained expression reveals a feeling that his legal career should be celebrated. Instead, he must sit with mug in hand, and defend himself and his programs -- something he, as a kid, never imagined having to do.

He and his brothers, Alvin and Elliot, grew up on Worcester's Derby Street, in a strict, Orthodox household with a classic immigrant work-hard-my-child ethos. His Russian father, Harry, made a modest living as a grocer, specializing in fruits, vegetables, and meats. His mother, Sarah, kept an intact domicile, "as women in the 1930s did," he says.

To this day, Raphaelson recalls his parents' regimented lifestyles. His father worked with uncanny precision: mornings at six, he trudged off to the family's shop and then evenings, "always at ten minutes to seven," Raphaelson notes, he returned home. His mother observed Judaic principles with equal exactitude, sending kosher meals to her husband so he wouldn't munch on ham at the store.

Early on, Raphaelson learned the value of duty. He began working at age 10, delivering his father's lunch on Saturdays. It was a task he took seriously. Once, while playing kickball with friends, he gashed his ankle. But before tending to the wound, he handed over lunch -- on time. Today, he laughs off the story as if insignificant. "I did what my family told me," he says. Yet his wife, Elizabeth, a svelte, rosy-cheeked woman, replies, "Milt's the most responsible person I know."

Between secular and Hebrew classes, Raphaelson toiled at the store, eventually manning the meat-slicing machine. Time there allowed him to witness his father's modus operandi, which Raphaelson describes as "friendly and respectful," unless he felt mistreated. Raphaelson remembers watching a prestigious yet smug doctor bark directions at his father, who then commented on the physician's rudeness.

"I am a doctor," the customer said.

"It must have been easy to become one," his father retorted.

It's a telling exchange, illustrating a virtue Raphaelson's parents instilled in their sons by example -- integrity. "My father taught me that honesty is the only way to deal with people," Raphaelson says. In retrospect, he adds, he's never considered conducting life in a disingenuous manner. Of course, he's rarely had to; his principled pedigree has served him well throughout adulthood.

RAPHAELSON ENLISTED IN the United States Army in 1951, and immediately, discovered his talent for persuasion. He had turned 21 on a service boat heading to Korea. Arriving at the barracks, he searched for a place to drink a birthday beer. But to his chagrin, he found that privates were excluded from officers' clubs. Raphaelson filed a complaint, claiming the practice was unfair.

"I made so much noise that privates got their own club," he says, with a hippotamic smile.

The experience, albeit satisfying, didn't inspire his legal career. Instead, he finished a three-year stint in the army and returned to the family shop. "I figured I would be a grocer," he explains. If Raphaelson gained anything from the military, though, it was that he had a bright mind. So he took advantage of the GI bill and enrolled in business courses at Clark University.

Raphaelson then decided on law school, but not because of a desire for legalese. He graduated from Clark in three years and was entitled to another under the GI bill, so he applied to night classes at Boston College School of Law. Raphaelson recalls friends and family members kidding him: Milt, you're too much of an idealist to be a lawyer. You won't make any money. Even at age 27, he was perceived as a man who had yet to shake off youthful dreams.

He started practicing law at age 31, and developed a reputation for taking on anything -- divorce, housing, tort cases. Still, he struggled. By that time, Raphaelson had four children, Henry (now 44), Laurie (now 42), Candee (now 38), and Jeffrey (now 35). "I had kids to feed and my first year as a lawyer I billed 2600 hours," he says. The only Sizzlean he brought home was the same he sliced at the shop; he worked as a lawyer by day and meat-cutter by night for five years.

Still, his diligence was not overlooked. A Worcester Superior Court judge, Henry Meagher, took a liking to Raphaelson's down-to-earth sensibility. "He was fortunate to enjoy confidence of a senior judge, who appointed him to big cases," recalls Dennis Brennan, a Raphaelson contemporary, now a Worcester District Court judge.

Meagher assigned Raphaelson to a 1972 case, O'Coin's vs. Treasurer of Worcester County, which argued for increased judicial control over court budgets. Previously, Meagher had sat at a hearing that came to a halt because the stenographer had the day off. Rather than delay, Meagher asked a police officer to buy a tape recorder at an appliance store, O'Coin's. The county treasurer refused to pay the $86, arguing it was for an unauthorized purchase.

The O'Coin's case went to the state Supreme Judicial Court, and Worcester's legal community watched as Raphaelson confronted seven, stern-faced justices. "It was a seminal case. No one had challenged [allocation of] the judicial budget," says Brennan. Raphaelson not only won but changed state law. Now, whenever judges lack goods and services, they have authority to obtain them.

Success placed Raphaelson, along with a handful of colleagues, on the courthouse "master list," the county's A Team of lawyers assigned to high-profile murder cases. He handled 17 murder cases in 17 years; only two clients were sentenced to life in prison. One of them, Abimael Colon-Cruz, a 31-year-old Hispanic man, brought Raphaelson before the illustrious SJC again.

It was 1984. Colon-Cruz and two friends were going to trial on charges that they killed a state trooper; and because of a 1982 statute permitting capital punishment in 10 kinds of crimes, they were facing death. Legislators wrote the statute after Massachusetts voters passed an amendment permitting the death penalty. The law's constitutionality, however, had yet to be tested in court.

The day Colon-Cruz was arrested, Raphaelson recalls, Worcester attorneys went into hiding. "No one wanted to represent someone accused of killing a state trooper. You'd make a lot of enemies," he explains.

But Raphaelson wasn't one to balk at unpopular assignments. He walked into the courthouse and informed judges of his willingness to serve. A few hours later, he visited Colon-Cruz, undergoing psychiatric exams at Bridgewater State Hospital.

Raphaelson told his client: "I'll represent you as if I had received a million dollars for the case."

Colon-Cruz replied: "What choice do I have?"

Raphaelson kept his promise. He, along with colleagues Brennan and Donald Deren, successfully challenged the state's death-penalty statute, thereby saving Colon-Cruz's life. In Commonwealth vs. Abimael Colon-Cruz, the SJC deemed the statute unconstitutional because it precluded a defendant's right to a jury trial. (Those who pleaded guilty didn't face capital punishment.) Ever since that ruling, the Legislature's failed to write and pass another death-penalty statute.

In spite of such high-profile attention, Raphaelson remained an amiable figure at the courthouse. The more significant the case, the more he appeared to help attorneys. "He was always a lawyer's lawyer. You could call for advice, and he was very generous with his time," Worcester attorney Fran Ford says.

After 30 years of courtroom persuasion, Raphaelson still had a reputation for integrity (rare, for sure). Worcester attorney Andrew Meagher, son of Judge Meagher, says, "Milt always wanted to do the right thing for people. He was passionate and idealistic then, just as now."

IT'S NOT SURPRISING that Raphaelson, a man of apparent altruism, made it his mission to become a judge. Ten years into his career, he was keenly aware of a lawyer's shortcomings: he could represent individual clients in their best interests, but not address global problems.

"I wanted to make the world a better place," he says, with eyes so direct, you sense sincerity. "As a judge, I could make a difference in hundreds of people's lives."

A lofty goal, no doubt. But in his seven years as judge, first traveling the circuit, then presiding over Dudley District Court, Raphaelson's left quite an impression on those around him. Take Southbridge attorney Michael Osowski, who initially encountered Raphaelson at a 1993 Worcester hearing. Osowski had heard the judge "was all about helping people," he says, but that didn't calm his nerves. He was waiting for proceedings to begin, when Raphaelson motioned him to the bench.

"He took me aside and said, You're a new lawyer, right? Tell me about yourself. He made me feel comfortable," Osowski recalls.

At Dudley courthouse, Raphaelson rarely spent time cloistered in his chambers. Instead, he strolled through the lobby and chatted with lawyers, employees, even offenders. "He made the courthouse enjoyable," Webster attorney Michael Erlich says. On the bench, he was known for fairness, efficiency, and genuine concern for the accused.

"His motivation is to get people on the right track. He has followers even among defendants," says James Korman, Southbridge lawyer and Southern Worcester County Bar Association president.

It wasn't long before Raphaelson's judicial work received media attention. Just months after Raphaelson became Dudley's first justice, in January 1995, his rehabilitation work was in the news; he had set up nightly Alcoholics Anonymous meetings at court and forced defendants with substance-abuse problems to attend in lieu of jail or fines.

By then, his opinion on substance abuse and crime -- namely, drugs and alcohol cause most violations -- was widely known. If he wasn't offering a litany of statistics to colleagues (Eighty percent of crime occurs when offenders are under influence.), he was promoting court-based treatment at conferences. His advocacy took on an obsessive quality: "It was frustrating, because Milty always ended up talking about substance abuse," admits Worcester attorney Michael Madaus.

Yet Raphaelson's bold, dogmatic character kept him in the spotlight throughout his two-year Dudley tenure. If the judge behaved in an unusual way, newspapers reported it. Like when he settled a dispute over whether a 1986 Ford Mustang had a loud muffler by asking the car owner to spin through the court parking lot. Or when he sat at the trial of two Dudley teenagers who had burned a 30-inch cross on a black-family's lawn; his unparalleled sentence, in which he ordered the men to read and write on American racism, captured-attention of the Boston press.

His actions didn't always fare favorably. In January 1996, Raphaelson expressed his views on domestic violence in the trade publication, Massachusetts Lawyers Weekly, arguing that victims must take some responsibility for staying in abusive relationships. His opinion sparked furor in the legal community. Even Attorney General Scott Harshbarger responded in a letter published in the same journal, accusing Raphaelson of vilifying victims and taking an "outrageous and misguided" position.

And then, there were reports of Raphaelson appearing to defy professional protocol. Take the Dudley woman, Elizabeth Donald, who filed a complaint against Raphaelson last August, accusing him of calling her "insane." Donald had gone to court alleging that her neighbor, with whom she had been feuding, was a stalker. Donald and her neighbor had repeatedly battled; family members had been imprisoned for vandalism and assault. Minutes into the hearing, Raphaelson interrupted: "The totality is that these people are both clearly relatively insane with respect to each other."

His remarks, in context, didn't seem outrageous, but the media coverage was tainting his image. No longer was Raphaelson's honesty seen solely as a virtue. "Talk among lawyers is that he pops off when he shouldn't," explains one Worcester attorney. Once Raphaelson donned the judicial robe, he was held to a different standard. He had become a public figure, after all, and many in the legal community criticized him for being too opinionated, too candid.

His son Jeffrey offers this observation: "My father's a man of directness, and this has served him well. But he's worked outside of corporate culture [so] he was never taught about importance of style."

It is Raphaelson's frankness, in part, that has left him mired in controversy. Internal trouble at Dudley court became public back in November, when Raphaelson requested a reprieve of his duties and then resigned. He said poor relations with Candito, as well as lack of support from his superiors, prompted the decision. "I have found it inordinately difficult to work with the clerk-magistrate, and our differences are now insurmountable," he had said.

In essence, Raphaelson's said Candito behaved as if he were Dudley's presiding justice, carrying out his administrative agenda, exceeding authority, and then appealing to Judge Zoll for support. "He thought he was my co-equal, and my superiors made it perfectly clear I was the one to blame," Raphaelson maintains. Both Candito and Zoll declined to be interviewed.

To many who worked with Raphaelson, the circumstances behind his Dudley departure are regrettable. He had fostered strong ties with SWCBA members, district attorneys, even towns served by the court -- Charlton, Dudley, Oxford, Southbridge, Sturbridge, and Webster. He had worked hard at making the court an influential institution, particularly with regard to substance-abuse treatment. "Raphaelson is a special character and sorely missed in Dudley," says Korman.

Some, naturally, are less willing to forget. Although friction between Raphaelson and Candito was hardly a secret among lawyers and court employees, many find it incomprehensible that Raphaelson didn't get Zoll's backing. One Oxford attorney bristles at the outcome: "The administrative judges didn't do right by Raphaelson, and that is unforgivable."

WHEN IT COMES TO substance abuse, Raphaelson often allows fervor to take over. And this is how supporters explain his public castigation of his successor, Judge Vito Virzi, once Virzi ordered Dudley court's substance-abuse counselor, Peter Kosciusko, to vacate the premises, then stopped all court-based treatment programs last December. "Raphaelson's passion for substance abuse overcame his reason," Judge Brennan says.

Raphaelson lashed out at Virzi on December 22, accusing him of letting Raphaelson's legacy slip away. Virzi could not be reached for comment, yet he's publicly maintained that his decision was based on courthouse space constraints. He has since announceed that a portion of the substance-abuse program will be held at a Dudley church. Virzi's actions, however, proved so disturbing to Raphaelson that he used accrued sick time to take a three-week break.

"I couldn't concentrate on the bench," he says, his face pinched with distress. "The experience has made me sick. I haven't had a moment of peace."

Raphaelson's troubled reaction comes as no surprise. He applied to the Dudley post to establish drug and alcohol programs, he says. With 462 drunken-driving cases in fiscal 1996, Dudley District Court has the second-highest percentage (10 percent) of alcohol-related cases in the state. "I knew substance abuse is a rampant problem in that district," he adds.

Raphaelson started AA meetings in court so offenders with drug problems could learn 12 steps of sobriety. The sessions took on a formal character after Kosciusko, who had read about Raphaelson's work, visited the judge. "I wanted him to include an educational component so addicts learned of addiction," says Kosciusko, then a counselor for a Worcester court-mandated drunken-driving program.

Raphaelson quickly procured a $35,000 grant from Commerce Insurance Co. of Webster. The money went to Adcare Educational Institute in Worcester, which hired Kosciusko as an in-house court counselor. Kosciusko assessed offenders that Raphaelson suspected to be addicts, then recommended treatment, ranging from AA meetings, to out-patient counseling, to enrollment in halfway houses.

In nearly two years, Raphaelson and Kosciusko instituted comprehensive services. There was the alternative-to-jail program, "Honor Court," which included 12-step meetings and sessions on the disease of addiction, relapse, and anger management, for instance. There were drug screenings and support groups for families, women, and Spanish- and Polish-speakers. Just before Raphaelson's departure, the two men had set up a group for young offenders, aged 17 to 22.

"Raphaelson dreamed of a community courthouse, where people would just walk in and get help," explains Kosciusko.

By many accounts, the programs enabled that to happen. Kosciusko points to statistics to indicate efficacy (Of 156 people in the young offenders group, only six were rearrested.), but more compelling evidence is anecdotal. Denise S. still recalls standing before the judge, nauseated, her breath stinking of alcohol. Denise, who asked that her last name not be used, knew she was in trouble; she had been arrested the night before on drunken-driving charges -- her third time.

"I thought for sure I was going to jail," Denise says.

At her arraignment, however, Raphaelson advised her to go to three AA meetings a week. She went initially to stay out of jail, but after a few months, she says, "I realized I belonged there." Raphaelson later ordered her to complete the program. On February 5, she celebrated a year of sobriety.

"The judge opened my eyes to another life," she says.

With outcomes like Denise's, it's no wonder that Raphaelson advocates so staunchly for substance-abuse treatment. Yet the issue personally resonates with him as well. His wife, Elizabeth, is a recovering alcoholic, and though she's been sober for 21 years, the couple cannot forget the pain.

"Milton has firsthand knowledge of the disease, of what it does to you physically, emotionally, psychologically," Elizabeth says.

"I know some offenders will have a lifetime problem with crime as long as they continue to abuse alcohol and drugs," Raphaelson adds.

Perhaps because of his private experience, Raphaelson refuses to quietly accept what has happened to his Dudley legacy. The state criminal-justice system launched an initiative to install treatment programs in every courthouse last May, but the Dudley programs were threatened. This irony infuriates Raphaelson: "I cannot handle the [gap] between what headquarters preaches and what happens."

Hypocrisy, and intensifying controversy, has left Raphaelson so deeply disenchanted, he says, he's uncertain of future judicial plans. But, as with every trial and tribulation, he has learned. Now, Raphaelson says, he understands that appearances matter: "I have worked hard. How that can be overlooked because of politics and bureaucracy is offensive."

It's a lesson in real-world fairness that this idealist could do without.

Kristen Lombardi can be reached at klombardi@phx.com.

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