As if to prove the old saying “even judges aren’t above the law,” one Massachusetts judge will soon find herself in an unfamiliar courtroom seat: the one reserved for criminal defendants.
On Feb. 28, the U.S. Court of Appeals in Boston rejected the request of Massachusetts state court Judge Shelley Joseph and her deputy bailiff, Wesley MacGregor, to dismiss the federal criminal indictments against them.
Judge Joseph must now face several federal charges brought against her in 2019 for allegedly conspiring with and actively aiding an illegal alien to evade an Immigration and Customs Enforcement agent with a federal warrant for his arrest and removal from the country.
Twice-deported Jose Medina Perez was brought before Judge Joseph on April 2, 2018, facing local drug-related charges. At the time, he was already the subject of a fugitive warrant for drunk driving in Pennsylvania and a federal warrant for being in the country illegally (again). The Department of Homeland Security informed the local D.A., the court clerk, the probation office and Mr. Perez’s defense counsel about the federal warrant and sent a federal agent to take him into custody following the resolution of the state charges. However, the ICE agent left the courthouse empty-handed.
According to the federal indictment, when Judge Joseph learned the agent was in her courtroom, she ordered him to leave, assuring him that Mr. Perez would exit through the lobby at the end of the proceedings. Mr. Perez’s defense attorney then requested a sidebar and apparently suggested: “The best thing for us to do is to clear the fugitive issue, release him on [his own] personal [recognizance], and hope he can avoid ICE.”
Apparently, Judge Joseph agreed.
She directed the court clerk to disable the court’s audio recording device so there would be no recorded evidence of what she was about to do. This order violated state court rules.
The indictment alleges that during the 52 seconds the audio recorder was disabled, Judge Joseph conspired to devise and execute a ruse that allowed Mr. Perez to leave the courtroom via a side stairway. Mr. MacGregor then “used his access card to swipe [Perez] out the back door of the courthouse,” according to the appellate decision, while the ICE agent waited in the lobby.
These actions violated guidance from the Executive Office of the Massachusetts Trial Court, requiring all state judges and court personnel to cooperate with ICE. The indictment alleges that Judge Joseph’s conduct was criminal. The criminal charges include conspiring to obstruct justice, obstructing justice and obstructing federal immigration proceedings.
Judge Joseph claimed that she was immune from prosecution and that the prosecution itself violated the U.S. Constitution. We’ve read the Constitution and don’t remember the “judge-can-do-whatever-she-wants” clause.
Her bailiff also claimed that charging him with those offenses was unconstitutional. (He was separately charged with perjury for lying about what occurred in the courtroom and did not appeal the denial of his motion to dismiss that charge.) In July 2020, a federal district court judge denied all of the defendants’ claims.
Judge Joseph appealed, arguing that her official capacity as a judge entitles her to “absolute sovereign immunity.” She also asserted that she and the bailiff are protected by the Tenth Amendment, which prohibits federal authorities from “commandeering” state officials to enforce federal law. In other words, Judge Joseph thinks it’s lawful for her to help a fugitive escape federal custody because, as a state official, she could not be compelled to cooperate with federal officials.
Calling Ms. Joseph’s appeal “premature,” the appeals court stated it had “no jurisdiction to review the district court’s decision denying Ms. Joseph’s motion to dismiss based on her asserted common-law defense of judicial immunity.” It further stated that “the defendants’ claim that the Tenth Amendment … bars their prosecution fares no better as a support.”
As a state judge, Judge Josep is not privileged to ignore or obstruct the enforcement of federal laws just because she is not ideologically in favor of them. Now she must answer a federal prosecutor’s allegations that she did just that.
As the appeals court said, Judge Joseph is not being prosecuted for failing to enforce federal law as she claims: The “indictment does not allege that Judge Joseph … merely declined to enforce federal immigration law” but instead alleges that she “affirmatively interfered with federal officials` attempts to enforce federal law.”
Because the appeals court concluded that it has no jurisdiction to review the substantive merits of the case before a final judgment by the district court, it denied the defendants’ motion to dismiss the indictments against them. It pointed out that the defendants can raise all of these arguments at their trial, and it rejected their argument that they would “confront the costs of trial and the very significant anxiety of being defendants in a federal prosecution.” As the court said, those are consequences “visited on all criminal defendants.”
Judge Joseph should have thought of that before directing her bailiff to help a twice-deported illegal alien with a criminal record escape federal custody because she doesn’t like federal immigration law. No one is above the law—not even judges like Shelley Richmond Joseph.
This piece originally appeared in The Washington Times