In an indictment filed with the U.S. District Court for the District of Massachusetts on April 25, 2019, Massachusetts District Court Judge Shelley Richmond Joseph and Massachusetts Trial Court Officer Wesley MacGregor were charged with conspiracy to obstruct justice; obstruction of justice, aiding and abetting; and obstruction of a federal proceeding, aiding and abetting. MacGregor was also charged with perjury. Those charges arose out of their alleged efforts to assist a twice-deported alien evade arrest by a U.S. Immigration and Customs Enforcement (ICE) officer. The charges are unique, but regrettably necessary.
As the Boston Globe explains, on March 30, 2018, Newton, Mass., police arrested Jose Medina–Perez for possession of unidentified narcotics, as well as for being a fugitive from justice in Pennsylvania. Medina-Perez is identified in the court documents as "alien subject" and "A.S." The Globe reports:
Medina-Perez had previously been deported in 2003 and 2007, and federal immigration records showed that "upon A.S.'s last removal, a federal immigration official had issued an order that prohibited A.S. from entering the United States for a period of twenty years, that is, until 2027," according to the indictment.
An ICE immigration officer issued a detainer for Medina-Perez after Newton police arrested him, and an officer from the federal agency showed up at Newton District Court on April 2, when Medina-Perez was scheduled to appear there, looking to take him into custody, records show.
Shortly after noon, a court clerk told the ICE officer to wait outside the courtroom, contrary to Department of Homeland Security policy, the indictment says.
"The Clerk informed the ICE Officer that, in the event of A.S.'s release, A.S. would be released out of the Courtroom into the ... lobby," the indictment says. "The ICE Officer complied and waited in the ... lobby on the first floor."
Medina-Perez was not released into the lobby, however, the indictment charges. In a sidebar conversation between the judge and the parties, the judge indicated that she understood that ICE was there. The prosecutor contended that she did not believe that Medina-Perez was the same person who was wanted in Pennsylvania. The defense attorney explained that ICE had asserted that there was a biometric match, but that his client denied being the subject of the warrant. He continued:
ICE is going to pick him up if he walks out the front door. But I think the best thing for us to do is to clear the fugitive issue, release him on a personal [recognizance], and hope that he can avoid ICE. ... That's the best I can do.
The matter got interesting thereafter, according to the Globe:
Later the courtroom recorder was turned off for about 52 seconds at Joseph's direction, the filing says, and when the parties went back on the record, [prosecutor Shannon] Jurgens said, "with the information that I have I don't think that there is enough tying him to the Pennsylvania warrant. The great deal of other out-of-state records — I do believe that some of them, uh, belong to this individual. But that is not what's at issue here."
[The prosecutor] then moved to dismiss the fugitive count and said the government wasn't seeking bail on the drug offenses, the indictment says.
Later [the defense attorney] said, "I believe [Medina-Perez] has some property downstairs. I'd like to speak with him downstairs with the interpreter if I may." Joseph said she would allow it, and then the clerk mentioned that an ICE agent was waiting "to visit the lockup" where Medina-Perez was being held, records show.
Joseph replied, "I'm not gonna allow them to come in here. But he's been released on this."
Immediately following the proceeding, the indictment says, MacGregor "escorted A.S. from the Courtroom downstairs to the lockup, accompanied by the Defense Attorney and an interpreter. Once inside the lockup, defendant MacGregor used his security access card to open the rear sally-port exit and released A.S. out the backdoor at approximately 3:01 p.m."
That helped Medina-Perez evade ICE.
The indictment alleges that the object of the conspiracy was "to corruptly attempt to obstruct, influence, and impede an official proceeding, to wit, an ICE federal removal proceeding, by preventing the ICE Officer from taking custody of A.S. at the [Newton District Court (NDC)] Courthouse." The indictment continues:
It was a part of the conspiracy that defendant MACGREGOR and the Defense Attorney agreed that defendant MACGREGOR would use his security access card to release A.S. out the rear sally-port exit in order for A.S. to evade arrest by the ICE Officer at the NDC Courthouse.
It was part of the conspiracy that defendant JOSEPH and the Defense Attorney agreed to create a pretext for A.S. to be brought back downstairs to the lockup so that A.S. could be released out the rear sally-port exit in order to evade arrest by the ICE Officer at the NDC Courthouse.
The indictment further alleges that the judge ordered the courtroom recorder be turned off to conceal her conversation with the defense attorney at which she discussed a plan to have Medina-Perez avoid arrest by ICE, and that she "ordered that the ICE officer to be prevented from entering the downstairs Courthouse lockup area."
In the press release about the case, U.S. Attorney (USA) Andrew E. Lelling stated:
This case is about the rule of law. ... 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. Everyone in the justice system — not just judges, but law enforcement officers, prosecutors, and defense counsel — should be held to a higher standard. The people of Massachusetts expect that, just like they expect judges to be fair, impartial and to follow the law themselves.
Kudos to USA Lelling for having the courage to bring what, in certain quarters, is bound to be a politically unpopular case. That said, speaking from experience, a judge's job is to apply the law, not to write it, and certainly not to subvert it. As Peter C. Fitzhugh, ICE Homeland Security Investigations (HSI) Special Agent in Charge in Boston stated: "The people of this country deserve nothing less than to know that their appointed and elected representatives are working on their behalf, while adhering to and enforcing the rule of law, not a personal agenda."
More tersely, as Fitzhugh stated, according to the Globe: "Judge Joseph's courtroom does not belong to her. ... It belongs to the people."
This latter statement bears expounding upon. In much of the ongoing debate about immigration, and in particular the disaster that is currently unfolding at the border, what the law, as written by the people's representatives, actually states often appears to have been largely cast aside, replaced by the personal opinions of those in the media and even elected representatives.
If members of Congress don't like the law, they should change it — that is why they got elected, to make laws (and ensure that the laws are enforced). And if judges disagree with the law, they should give up their positions (and the trappings that come with them), knock on doors, raise money, get elected to Congress, introduce legislation, and convince enough of their peers to change the law.
In the interim, let ICE and the Border Patrol do their jobs. The law belongs to the people, too.