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Judge must take twice-daily blood alcohol tests to stay on the bench

What happens if Judge W. Kennedy Boone III blows a .07 after lunch? Does he just return to the bench that day, or is the bailiff authorized to send him home with a designated driver? Does Judge Boone get to resume his duties, or does another judge of the Washington County Circuit Court relieve him of his docket? I realize that a .07 blood-alcohol level is not considered intoxication under Maryland law, but it's pretty close.

I raise these questions because Judge Boone, who presides in Hagerstown, has been ordered to take a blood-alcohol test twice a day — once before he goes on the bench in the morning, and again after lunch. Imagine that, my fellow Marylanders: We are apparently so hard up for Circuit Court judges, we're keeping one who can't be trusted to lay off the booze; we'll just check his breath twice a day.

The designer of this creative gate-keeping is the Maryland Commission on Judicial Disabilities, which secretly investigates complaints about the behavior of judges. The term "disabilities" refers to senility, physical illness, mental illness and alcohol or drug abuse. But apparently the commission tolerates these disabilities in a judge — or at least alcohol abuse, at least with regard to Judge Boone.

The commission ordered the judge, who is 68, to take the blood-alcohol tests because he had been involved in a car accident. He'd been driving while drunk, though "blotto" would be a more appropriate word for it. A test after the accident showed Judge Boone with a blood-alcohol level of .18. That's more than twice the legal limit in Maryland. The driver of the other vehicle, a young woman, received minor neck and back injuries, according to published reports.

Judge Boone pleaded guilty to driving under the influence, was fined $1,000 and sentenced to three years of unsupervised probation.

That was last March.

The accident was in early November 2009. It took the disabilities commission all this time to conclude that Judge Boone had violated Maryland's code of judicial conduct and to come up with a sanction. And this is it: twice-daily breathalyzer tests. The judge must also go to Alcoholics Anonymous meetings and lay off the booze.

So perhaps the answer to my opening question is right there — if he blows a .07, that's evidence of drinking, and evidence of drinking "may result in further discipline," according to the "private reprimand" delivered by the disabilities commission. (Because the judge's DUI case was on the public record, his reprimand was made public as well.)

Still, it's reasonable to ask: Why is the commission being so nice in the matter of W. Kennedy Boone III? This is the same judge who, in 2007, referred to three black, female public defenders as "the Supremes" and advised their client to get "an experienced male attorney." In that case, the judge received a reprimand from the disabilities commission for "a serious lapse in judgment," and he apologized to the public defenders.

In light of what's happened since, you have to wonder if Judge Boone had been drinking before he made the "Supremes" remark. In fact, any litigant who had business in front of the judge after Nov. 6, 2009, might have wondered the same thing. According to the Hagerstown Herald-Mail, that was the day Judge Boone's SUV crossed the center line on North Prospect Street and struck a car driven by a 25-year-old woman and occupied by a 3-year-old in a car seat. (The child was not injured.)

Judges are notoriously soft on drunken drivers, particularly those who stand before them on a first offense. Maybe the disabilities commission thinks Judge Boone deserved a little of that love, too.

But here's the problem — W. Kennedy Boone III is ... a judge! A judge's judgment should not be in question. A judge is held to a higher standard. Citizens need to trust the man or woman who hears their cases, rules on their motions or imposes criminal sentences on their sons and daughters, nieces and nephews.

While making Judge Boone take a breath test before he goes on the bench might seem like a creative and humane concept, I can't believe we're this hard up for judges.

Perhaps the commission thought it would be kind to keep Judge Boone on the job until his mandatory retirement age of 70. It would be wiser, and in the interest of justice, if we just offer early retirement with pension, and wish him well.

Dan Rodricks' column appears Tuesdays, Thursdays and Sundays. He is the host of Midday on WYPR, 88.1 FM. His e-mail is dan.rodricks@baltsun.com.

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