When she was brought before a court this spring, charged with the federal crime of obstruction of justice, Judge Shelley Joseph did not look like a rebel.
Her face was tear-streaked and bore an expression of helpless dismay, as if she were struggling to take in the upside-down world in which she was the defendant.
In April, she and a court officer, Wesley MacGregor, were accused of allowing an immigrant to evade detention by arranging for him to sneak out the back door of a courthouse.
The federal prosecutor in Boston took the highly unusual step of charging the judge with obstruction of justice, setting off a debate over whether and how states can refrain from carrying out President Donald Trump’s immigration policy.
Massachusetts has been at the forefront of the sanctuary city movement, passing a series of legal rulings that constrain Immigration and Customs Enforcement from detaining immigrants in courthouses.
The judge’s supporters say she is no crusader, but an inexperienced judge who stumbled into a bitterly contested area of the law. They warn that if the case goes forward, it will open the door for prosecution of other judges, undercutting their independence, as the country grapples with its deep divisions over immigration.
Joseph has refused a plea deal that would have allowed her to avoid prosecution if she admitted violating federal law, signalling that she is prepared to go to trial in a case that could drag on for years.
For a federal prosecutor to indict a state judge is so rare that, in search of a Massachusetts precedent, observers have cast back to 1787, when Judge William Whiting was removed from the bench for defending a farmer’s rebellion against state tax collectors.
Some in Massachusetts’ sprawling legal and immigration rights community kept a distance from Joseph, in part because the evidence against her was damning: Before allowing the man to be led out of her courtroom, Joseph could be heard on an audio recording instructing the court clerk to switch off the recorder in an apparent effort to conceal what they were saying.
But legal heavyweights have rallied in her defence, arguing that the US attorney for Massachusetts, Andrew E Lelling, has crossed a line by indicting a state judge, inviting the use of federal power to intimidate state officials into compliance.
This summer, the state Supreme Judicial Court ordered the restoration of her $184,000 salary while the case is pending, for fear that the threat of being stripped of a paycheck would make judges hesitant to challenge prosecutors, diminishing the “overall independence of the judiciary.”
Daniel Medwed, a law professor at Northeastern University, said, “What Joseph’s behaviour has become is a rallying cry, not just for judicial independence, not just for states’ rights, but also a form of civil disobedience, that we, as state duly appointed judges, won’t be cowed by federal prosecutors.”
A spokeswoman for Lelling declined to comment on the pending case.
Through her lawyer, Joseph also declined to comment, as did her lawyer, Thomas Hoopes Joseph has pleaded not guilty, as has MacGregor.
“This prosecution is absolutely political,” Hoopes told reporters in April. “Shelley Joseph is absolutely innocent.”
Jessica Vaughan, director of policy studies at the Centre for Immigration Studies, a Washington-based organisation that favours reduced immigration, said the judge is the one propelling the case forward by choosing not to accept the plea deal.
“They just want to make it clear that what she did was wrong, but if she remains defiant, it kind of boxes them into a corner,” she said. “It’s just a question of how long she wants to draw it out.”
She added, “Maybe she thinks of herself as a martyr for the cause.”
MOUNTING TENSION
Joseph, who joined the bench five months before the incident, was not well known or particularly outspoken.
After a career as a prosecutor and defence attorney, she had been nominated by the state’s Republican governor, Charlie Baker, as an associate justice of the Framingham District Court, hearing misdemeanours and minor felonies. The main indication of her politics was a stint working on Bill Clinton’s presidential campaign and a term on the Democratic State Committee in the 1990s.
At her nomination hearings in 2017, colleagues spoke of her compassion and, as one put it, her “belief in human goodness.” The newly minted judge was beaming and a bit nervous, kneading her fingers in her lap under the table. She spoke of lessons she had learned from her mother.
“She taught me to be an advocate, to stand up for what is right, and never to compromise my values,” she said. “The most important thing she taught me was to be nice.”
She was entering a court system that was under strain, particularly around the bitterly contested legal ground of ICE detentions.
“Massachusetts courts blatantly and willfully disregard ICE’s requests to detain aliens on a daily basis, and cannot be relied upon to honour our requests,” an official in ICE’s Boston field office complained in internal emails.
One person tasked with pushing back against the state’s left-leaning trends was Lelling, the US attorney appointed under Trump. Lelling promised, right away, that Massachusetts would see his office take a tougher stance on immigration.
“Some of our judges are motivated by their personal conclusions that it’s unfair in certain instances to deport someone,” he told The Boston Globe. “That’s not law, just their personal feelings.”
A 52-SECOND GAP
Tension over the question was in the background when an ICE officer arrived at the Newton District Court at 9:30 am on April 2, 2018, with orders to detain Jose Medina-Perez, an unauthorised immigrant from the Dominican Republic.
Newton District Court is a sleepy, two-room courthouse in a wealthy, liberal suburb. On a recent afternoon, a judge hearing a woman’s shoplifting case admiringly noted her degree from the Harvard Kennedy School of Government.
“This is Newton,” joked its clerk magistrate, Henry Shultz, “where you’re considered a dropout if you only have a master’s degree.”
Joseph was a visiting judge in the courthouse, occasionally hearing cases on Tuesdays.
Medina-Perez, who also went by the name Oscar Peguero, had been arrested in Newton on narcotics charges and had been linked to an 8-year-old warrant for drunken driving from Pennsylvania. He had been deported twice from the United States, and the second time, in 2007, he had been prohibited from entering the country for 20 years, according to the federal indictment.
At 12:04, while Medina-Perez was sitting in the glass dock to the right of her bench, Joseph instructed the court clerk to ask the ICE officer to leave the courtroom and wait in the lobby outside. According to defence briefs, the judge was complying with established policy at the Newton courthouse at the time.
Only later would it become clear what had happened inside, as Joseph held a sidebar conference with the assistant district attorney and Medina-Perez’s defence attorney. Both agreed that Medina-Perez was not the man wanted in Pennsylvania.
He could have been released on bond from the jail in Billerica, Massachusetts, but the defence attorney, David Jellinek, jumped in.
Defense attorney: There is an ICE detainer. So if he’s bailed out from Billerica when he goes back there, ICE will pick him up.
Joseph: ICE is gonna get him?
Defence attorney: Yeah.
Joseph: What if we detain him?
Defence attorney: Are we on the record?
Joseph: (Clerk,) can we go off the record for a moment?
Clerk: What’s that?
Joseph: Are we off the record?
Clerk: No, we’re on the record.
Defence attorney: Can we go off the record for a moment?
At this point, according to the indictment, the clerk switched off the courtroom recorder for 52 seconds, in violation of Massachusetts courtroom rules. When the recording picked up again, the three resumed their conversation, agreeing to release Medina-Perez — but not, as is standard, through the courtroom lobby. (Jellinek declined to comment for this article.)
Defence attorney: I would ask that he, uh — I believe he has some property downstairs. I’d like to speak with him downstairs with the interpreter if I may.
Joseph: That’s fine. Of course.
Defence attorney: Thank you.
Seven minutes later, the indictment reflects, Medina-Perez departed through the courthouse’s rear exit, which opens into a public parking lot. But this was not communicated to the ICE officer, who remained in the lobby. The courthouse closes its doors at 4:30 pm, seven hours after the ICE officer showed up.
He departed empty-handed and, presumably, frustrated.
A RAPID ESCALATION
Word of what had happened moved quickly up the chain of command, reaching Washington in a matter of hours, said Thomas D Homan, who was the acting director of ICE at the time.
“I heard about it the same day it happened,” Homan said. “I was dumbfounded. I said, ‘Well, now, things are going a bit too far.’ For an officer of the court to help someone escape ICE arrest. I’ve done this 35 years and never seen anything like that.”
Informed of the decision by Matthew Albence, then the director of enforcement removal operations and now ICE’s acting director, Homan said he immediately began asking about legal recourse.
“I remember I got angry,” he said. “I asked, ‘Is there a legal action I could take?’ I was looking to do whatever I could do to make that happen.” He said he considered it a clear case of obstruction of justice, but that his agency did not have the power to bring charges. “We’ve got to find a US attorney who is willing to indict. I talked to my legal staff, they said it would be up to the US attorney’s office.’”
The idea of such a prosecution was popular in Washington.
In 2018, Trump publicly urged Jeff Sessions, who was then the attorney general, to bring obstruction of justice charges against Mayor Libby Schaaf of Oakland, California, for warning her constituents of an impending ICE raid.
In an interview with WGBH radio, Lelling, the US attorney, said that Joseph’s case was not the first time he had heard of a judge impeding a detention, but that it stood out because of the quality of the evidence.
“We’ve heard rumours of, you know, judges doing this or that, I don’t want to identify them,” he said, “but this was the first time we have come across an instance where, one, as alleged in the indictment, we thought it was clearly criminal, and two, we think we can prove it.”
Lelling said the case should not be viewed within the context of the legal tension over immigration.
“To me, it’s not an immigration case,” he said. “I know that seems counterintuitive to people. It’s a rule of law case. You have, the indictment alleges, a sitting judge who helps a federal fugitive evade capture by letting him out the back door. You can’t do that.”
Even some immigration advocates were cautious about defending Joseph.
“We were quiet on this,” said Iván Espinoza-Madrigal, the executive director of Lawyers for Civil Rights, which filed a lawsuit to stop ICE courthouse detentions.
“There are elements of this that have a very bad look,” he said. “People are sympathetic with Judge Joseph, but at the same time there are elements of what happened in the courtroom that most people wouldn’t defend. I wouldn’t defend turning off the recorder in the courtroom.”
Carol Ball, a retired Superior Court judge who was making the rounds of retired judges, seeking support for Joseph, encountered that reaction in some cases.
But she said that was missing a much more important point: Judges’ behaviour in the courtroom is typically subject to judicial discipline, not federal prosecution.
For a federal prosecutor to indict a sitting judge is crossing a line, she said.
“If she did what they say she did, she does deserve to be dealt with,” she said. “Nobody is saying, ‘It’s fine, no problem.’”
She said federal immigration authorities were “furious” at the Massachusetts Supreme Judicial Court, which had recently ruled that state courts could not hold subjects purely on the basis of ICE detainers.
Massachusetts “is the home of all those liberals who hate Donald Trump, you know what I’m trying to say?” she said. “You don’t indict a sitting judge without getting direct clearance from Washington.”
Joseph, she said, was simply not prepared for the battleground she was walking into.
“She was a baby judge, caught in this swirling vortex of change,” she said.
In the months that have passed, Joseph has figured regularly in the Boston newspapers.
In the Globe’s letters column, one admiring reader put her in a category with Henry David Thoreau and Martin Luther King Jr, as an icon of civil disobedience who “knew that there were consequences for disobeying the law” and “accepted them.”
The right-wing radio host Howie Carr, writing for The Herald, has derided her as “a lawless, privileged moonbat judge” who is “hoping for an OJ Simpson-like jury nullification from 12 Democrats afflicted with Trump Derangement Syndrome.”
As for the judge herself, she has been silent.
Alicia Shems, a friend from high school, said it had been a painful period for the judge, who has spent the past decades consumed with her work.
She said Joseph at first struggled to fill her days, which Shems described as “empty and terrifying.”
To settle her mind, Shems said, Joseph is training for her fourth marathon, running so much and eating so little that she has lost 10 or 20 pounds.
As for the threat of a prison sentence, she said, “she can’t think about that or she won’t be able to function.”
