So Gertner wrote to the Herald, explaining what had really happened. She gave the paper a telephone interview, too. Standard behavior for public officials — that is, unless you are a judge.

The parents’ lawyer, Chester Darling, wanted her thrown off the case, arguing that she had compromised her impartiality. When Gertner refused to go voluntarily, he took his complaint to the US Court of Appeals for the First Circuit. And he won. Silence, the appeals court ruled, isn’t just golden — it’s required.

The muzzle clamped around Gertner’s mouth — and, potentially, around the mouths of all judges everywhere — is a disaster for anyone who believes the court system should conduct its business in the light of day. Of all our public institutions, the judiciary is the most mysterious. And that, apparently, is just the way the appeals court likes it.

Gertner is — or rather, was (she declined to comment for this article) — one of those rare judges who believe it is their duty to speak out, to educate the public about the judicial process. Now that she’s been silenced for what even the appeals court admits was merely a well-motivated attempt to explain what had actually happened in a high-profile, racially charged case, judges are even less likely to speak.

“I am really worried by this code of silence that the judiciary tries to impose upon its members,” says Paul McMasters, First Amendment ombudsman for the Freedom Forum. “The whole judicial system is closing more and more upon itself. It’s not just the public’s right to know that’s damaged, but the stature and status of the judicial system itself.”

The saga that led to the appeals court’s decision began with an article published in the Herald on July 26, 2000, in which Darling was quoted as saying that Gertner had rejected his bid to expand the suit into a class action covering all white students who may have been denied the school assignment they wanted because of their race.

The Herald reported further that Darling had filed a motion asserting “that Gertner allowed a similar class-action suit to be brought against Suffolk County by women who claimed they were illegally strip-searched at the jail.” And the article quoted Darling as saying, “There’s a whole race of kids being discriminated against here.... If you get strip-searched in jail, you get more rights than a child who is of the wrong color.”

What irked Gertner was that she had yet to rule one way or the other on the class-action issue. So on July 28 she wrote a letter to the Herald correcting the record, noting additionally that Darling had not filed his motion for class certification until the day the Herald had interviewed him. “I did not refuse to hear arguments on this case,” Gertner wrote. “I did not refuse to schedule a hearing. Just the opposite.” The hearing, she explained, would take place in September.

Then, in a follow-up article published by the Herald on August 4, Gertner elaborated on Darling’s claim that his clients’ case was similar to that of the female inmates. “In the [Suffolk] case, there was no issue as to whether they were injured,” Gertner was quoted as saying. “It was absolutely clear every woman had a claim. This is a more complex case.”

To Gertner, the letter she wrote and the interview she gave to the Herald were part of a straightforward attempt to correct the record, as permitted by the code of conduct for federal judges. To Darling, however, Gertner’s comments were evidence of bias or — at the very least — the appearance of bias. He filed a motion demanding that she recuse herself and allow another judge to be assigned. She refused. He appealed. And on February 5, the appeals court ruled in Darling’s favor, finding that Gertner had created “an appearance of partiality,” even though she “understood her own comments as entirely ethical explanations of the reasons behind court procedures.”

The appeals court’s decision garnered scant media notice. The Boston Globe ran a 500-word account inside the City & Region section. Yet the case is likely to have far-reaching implications that should worry anyone who cares about freewheeling press coverage of the judicial system.

First there is the immediate, practical effect. The Herald reported that Suffolk County and the City of Boston have now asked Gertner to recuse herself from the strip-search case, citing the same quote that got her into trouble in the school suit. And the effect of the decision is spreading: the technology trade publication InfoWorld reported that Microsoft’s lawyers have cited the appeals court’s ruling in their bid to have Judge Thomas Penfield Jackson removed from the federal antitrust case that has brought the software giant to the brink of break-up. (Jackson, in interviews with the New Yorker’s Ken Auletta for the recently published book World War 3.0, characterized Microsoft founder Bill Gates as essentially a liar and a spoiled brat who needs to be taught a lesson.)

Far more important, though, is the potential long-term effect. Gregg Leslie, legal-defense director of the Reporters Committee for Freedom of the Press, puts it this way: “This is just going to completely chill speech, and the party that’s harmed here is the general public, which is trying to understand how its courts work.”

Chester Darling came to prominence in the early 1990s, when he represented a group of South Boston veterans who were trying to ban a gay and lesbian organization from the neighborhood’s St. Patrick’s Day Parade. Darling, who argued that the veterans’ First Amendment right to express their own values was being violated, took his case to the US Supreme Court — and won. His modest office, which he leases in a converted mansion/townhouse on Dartmouth Street, is sprinkled with mementos such as a photograph of him with Justice Clarence Thomas and city-council resolutions signed by South Boston stalwart Jimmy Kelly.

After the South Boston case, Darling founded an organization called Citizens for the Preservation of Constitutional Rights, which consists of him and two law partners. CPCR, as it’s called, takes a variety of cases involving free speech or free religious expression. The organization generally represents conservative clients, such as a group that wants to keep a crèche on the Lexington Green (a case that’s also being heard by Judge Gertner) and Scott Whiteman, whose actions — he’s accused of illegally taping a state-sponsored seminar on gay sexuality for high-school students — briefly became a cause célèbre among religious-right activists last year. Asked who provides CPCR with its funding, Darling replies, “And have the Gay and Lesbian Advocates and Defenders after them? No thanks.”

Yet it pains Darling to be thought of as a racist and a homophobe. He says it bothers him that he couldn’t find any black parents to challenge Boston’s school-assignment system, adding that in a similar case he’s handling in Lynn, his clients include blacks as well as whites. And he notes that when the city of Lawrence refused to grant a permit to a gay organization that wanted to hold a march several years ago, he threatened to take city officials to court. The gay group got its permit. “I had to be escorted to my car by the police because people were so angry with me up there,” says Darling, who, with his unruly shock of white hair, looks something like a smaller version of the late Tip O’Neill.

Darling sees his dispute with Gertner as a matter of interpretation: though he’s not backing down from the comments he made to the Herald, he also declines to dispute her explanation. As for his decision to seek recusal, he calls it a simple matter of seeking to remove a judge who had compromised her impartiality. “It speaks for itself,” he says of the appeals-court decision in his favor. “Judges aren’t permitted to do that [speak out]. That’s what judges do. They judge.”

But how simple is it? According to the federal code of judicial conduct, “[a] judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge’s direction and control. This proscription does not extend to public statements made in the course of the judge’s official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.” To Darling, Gertner’s letter and subsequent comments amounted to “public comment on the merits of a pending or impending action.” To Gertner, they were simply an “explanation of court procedures.”

Among those siding with Gertner’s interpretation is noted civil-liberties lawyer Harvey Silverglate, a sometime ally of Darling’s who is also Gertner’s former law partner and a Phoenix contributor. Silverglate does not criticize Darling for trying to get Gertner removed, but he can’t understand why the appeals court agreed with Darling. Silverglate says that far too many judges are inclined to play it safe and refuse to speak about pending cases even though the code of conduct would appear to allow it in some instances. The appeals court’s decision, he adds, will only reinforce that instinct.

“They have eliminated all of the lines that should be drawn as to what should be permitted and what should not be permitted,” says Silverglate, accusing the appeals court of wishing to preserve the status of judges as a “priestly caste” beholden to no one but themselves.

Ironically, judicial silence often has the opposite effect. The list of judges who take a public pounding because of decisions they make — and who refuse to fight back — is a long one. Consider the case of Massachusetts Superior Court judge Maria Lopez, who was excoriated last fall after she chewed out a prosecutor and handed a light sentence to a convicted child molester. Despite considerable evidence that she believed the facts of the case differed considerably from the prosecution’s version, she would not speak publicly in her defense, since the code of conduct for state judges is essentially the same as that for federal judges. (Disclosure: Lopez is the wife of Phoenix publisher Stephen Mindich.)

Or consider a much earlier case: the Woburn toxic-waste trial of the mid-to-late 1980s, made famous in Jonathan Harr’s best-selling book A Civil Action. US District Court judge Walter Jay Skinner took a terrible public beating for his occasional angry clashes with Jan Schlichtmann, the lawyer who represented eight families whose children were suffering from leukemia. During the appeals process, Schlichtmann publicly accused Skinner of siding with Jerome Facher, the lead lawyer for one of the defendants, Beatrice Foods, because both Skinner and Facher had ties to Harvard Law School. (The charges against Beatrice were ultimately dismissed.)

I covered the Woburn trial and the appeals process, and though Skinner was not always a model of judicial restraint, he struck me and other observers as a fair-minded jurist doing his best to deal with the inexperienced, volatile Schlichtmann. Yet Skinner held his tongue, even after he was depicted as a cartoonish ogre in the movie version of Harr’s book. “It’s really a very difficult position to be in, and how you do it depends a great deal on the circumstances,” Skinner told me last week. “A response is likely to bring a counter-response, and it’s likely to go on forever, which was my feeling about the Woburn situation.” Adds Facher, a senior partner at Hale and Dorr: “I really feel for judges, but a lot of them will say it just comes with the territory.”

Yet Michael Keating, a partner at Foley, Hoag & Eliot and president-elect of the Boston Bar Association, says there’s a good reason judges shouldn’t speak out on pending cases. “The overriding concern that the courts have is the public perception of impartiality on the part of the judge,” says Keating, who was the lead lawyer for another defendant in the Woburn case, W.R. Grace, which paid an $8 million settlement to the families.

Even Keating, though, says he doesn’t necessarily agree with the rule against judges’ speaking out — and notes that there is actually a way of getting around it. All a judge need do, he says, is say what he or she wants to say from the bench or in a written opinion. If Gertner had sought to correct what she believed were Darling’s mischaracterizations while wearing her judicial robes, Keating says, there would have been no cause for action against her. “It would not have been criticized at all,” Keating says, calling it “a paradox of the rule that I don’t think can be adequately explained.”

Keating supports sentencing guidelines — delayed by the legislature — that would make it easier for judges such as Maria Lopez to explain their reasoning. Noting that Lopez’s inability to speak out was compounded by the fact that her sentencing decision was partly based on information she had received “in a confidential context,” Keating says the new guidelines would actually require a judge to explain his or her reasoning when giving someone a sentence that deviates from those guidelines.

Thus, even though Keating and Harvey Silverglate disagree over how freely judges are allowed to speak about pending cases, they share a common goal: greater judicial openness. That goal, unfortunately, does not appear to be shared by the First Circuit Court of Appeals.

Judge Gertner's letter to the Herald says in part: “I am always available to speak to the press. I strongly believe that what we do as courts and judges must be accessible to the public.... While the disciplinary rules constrain my ability to speak about matters before me, I will always answer a reporter’s calls to see if there is something I can ethically say. And if I cannot speak on the issue, I will try to explain why I cannot.”

Not anymore. The chilling effect of the appeals court’s decision has already cooled down Gertner, who declined to comment when I reached her last week. She has filed a petition to rehear the issue, but she won’t talk about it. No surprise there. After already having been held up as an example, the last thing she needs is to be seen as defying her judicial superiors.

Oddly enough, the appeals court’s very solicitude in describing Gertner’s motives adds to the chill. The decision states that its ruling “in no way indicates a finding of actual bias or prejudice, nor does it suggest that the trial judge abdicated any of her ethical responsibilities.” Well, if she’s not biased and didn’t act unethically, why is she being removed from the case?

One reason, the court suggests, is that the very act of a judge’s speaking out is so rare. “Interested members of the public,” the appeals court says, “might well consider Judge Gertner’s actions as expressing an undue degree of interest in the case, and thus pay special attention to the language of her comments.... In fact, the very rarity of such public statements, and the ease with which they may be avoided, make it more likely that a reasonable person will interpret such statements as evidence of bias.” Nor does it matter that she believed Chester Darling had mischaracterized her actions. “Whether counsel for the petitioners misrepresented the facts or not is irrelevant: the issue here is whether a reasonable person could have interpreted Judge Gertner’s comments as doing more than correcting those misrepresentations and creating an appearance of partiality,” the court says. “We feel that, on these facts, a reasonable person could do so.”

The bottom line is that the appeals court removed a judge solely for attempting to correct public misimpressions of a case whose outcome could have an enormous impact on the city’s troubled school system. “To get the facts wrong so that it appears that the Court is not even allowing argument on important issues, undermines the legitimacy of this institution as well as the purposes your newspaper is supposed to serve,” Gertner wrote in her letter to the Herald.

Ultimately, the Herald’s legitimacy is its own concern. But it should disturb all of us that Gertner’s mere act of speaking in order to preserve the judicial system’s legitimacy was met with condemnation, no matter how mildly worded. It is bound to lead to self-censorship, and to a further erosion of public trust.

Dan Kennedy can be reached at dkennedy[a]phx.com.