A Judge Has Been Indicted For Allegedly Helping An Undocumented Immigrant Escape ICE Arrest

“This is like using a nuclear device to kill a gnat,” said a former federal court judge.

A Massachusetts state judge has been indicted on obstruction of justice charges for allegedly blocking federal immigration enforcement officers from arresting a man who appeared before her court last year.

The charges against Massachusetts District Court Judge Shelley M. Richmond Joseph, filed Thursday, come during a time of heightened tension between state courts in so-called sanctuary jurisdictions and Immigration and Customs Enforcement officials. Under the Trump administration, the two sides have disagreed over the possibility of a chilling effect in courthouses due to ICE activity. Just this month, New York state court officials mandated that ICE officers be armed with a judicial warrant if they intend to make arrests in courthouses.

“This case is about the rule of law,” said Andrew E. Lelling, US attorney for the District of Massachusetts, who was appointed by President Trump in 2017. “The allegations in today’s indictment involve obstruction by a sitting judge, that is intentional interference with the enforcement of federal law, and that is a crime. We cannot pick and choose the federal laws we follow, or use our personal views to justify violating the law.”

The charges levied against Joseph — conspiracy to obstruct justice, aiding and abetting obstruction of justice, obstruction of a federal proceeding — represent an extraordinary, unprecedented use of federal prosecution powers and a potential escalation against state court judges across the country, experts said.

“This is like using a nuclear device to kill a gnat,” said Nancy Gertner, a former federal court judge in Massachusetts. “At best, this is the area of a mistake, and you don’t use criminal law to deal with a mistake. This is a completely inappropriate use of criminal law. It’s outrageous.”

Rory Little, a professor at the University of California, Hastings College of the Law, and a former federal prosecutor, said the charges were astonishing in scope.

“I think this is pretty outrageous and, in its specifics, pretty unprecedented,” Little said. “It signals a huge ratcheting-up of the current administration’s hostility to what we might call ‘sanctuary’ noncooperation policies.”

The charges stem from an April 2, 2018, hearing in Joseph’s Newton District courtroom, when an undocumented immigrant appeared before her on a narcotics charge and an out-of-state fugitive charge. The immigrant, who was not named in the indictment, had been flagged by ICE for being previously deported.

That day, an ICE officer sat in Joseph’s courtroom, waiting to see if the agency could take custody of the immigrant upon his release. The case was pushed back into the afternoon to discuss whether local prosecutors wanted to make a bail request on the drug charge.

At around noon, a court clerk, at the direction of Joseph, told the ICE officer to wait outside the courtroom and that if the individual were released, they’d be let go like they usually were, out onto the first floor, according to the indictment.

A few months before the incident, in November 2017, Massachusetts state court officials had released a policy for judges that stated that ICE officers were allowed to enter and work in courthouses.

By around 3 p.m., the case popped back up and the defense attorney, prosecutor, and Joseph had a sidebar conversation that was recorded. All court proceedings must be recorded, according to state court policy.

“So, it’s my understanding that ICE is here,” Joseph told the two.

During the conversation, the defense attorney told the judge that if his client bailed out of the local jail, then ICE officers would be there.

“ICE is gonna get him?” Joseph asked.

“Yeah,” the attorney responded.

Joseph was then recorded asking to take the conversation off the record. The courtroom recorder was turned off for the next 52 seconds, according to the indictment. When the proceedings picked back up, the fugitive charge was dropped by the prosecutor and no bail request was made on the drug charges.

“I would ask that he— I believe he has some property downstairs,” the defense attorney said. “I'd like to speak with him downstairs with the interpreter, if I may."

Joseph granted the request. A clerk then said, “There was a representative from ICE here in the court ... to visit the lockup.”

“That's fine,” the judge responded. “I'm not gonna allow them to come in here. But he's been released on this.”

Shortly after, a courtroom officer took the defense attorney and an interpreter to the downstairs facility and allegedly let the immigrant walk out the backdoor.

Prosecutors allege that a conspiracy to obstruct justice was hatched when the recorder was turned off and that the attorney’s visit to the defendant was a pretext to let him out the backdoor and away from the ICE officer waiting on the first floor, unaware of what was happening. The ICE officer was unable to take the individual into custody.

The trial court officer, Wesley MacGregor, was also charged with obstructing justice as well as perjury for allegedly giving false testimony to a grand jury when he stated that he did not know an ICE officer was in the courthouse or that the immigrant was wanted by federal immigration officials.

Pratheepan Gulasekaram, a professor and immigration expert at the Santa Clara University School of Law, said that the charges represented a unique break in deference to state court officials.

“There has always been a level of respect for the state judicial system and its operations, even if there has been saber-rattling that they can do this,” he said. “This is the push coming to a shove: ‘We are not going to back off, we are going to make sure you don’t get to do things the way you’re doing them.’ This is a really big deal.”

Massachusetts Attorney General Maura Healey said the prosecution was outrageous.

“Today’s indictment is a radical and politically-motivated attack on our state and the independence of our courts,” Healey wrote. “It is a bedrock principle of our constitutional system that federal prosecutors should not recklessly interfere with the operation of state courts and their administration of justice.”

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