Judge Indicted for Helping an Alien Elude ICE — But What About the Prosecutor and Defense Counsel?

By Dan Cadman on April 26, 2019

As my colleague Andrew Arthur has written, a Massachusetts state judge has been indicted, along with a court security officer, for federal charges of conspiracy and obstructing justice (and the court officer for perjury also), as the result of aiding a deportable alien from the Dominican Republic to escape from arrest by an Immigration and Customs Enforcement (ICE) agent who was dispatched to the courthouse to take him into custody.

The reports of the circumstances are both disturbing and straightforward: The judge directed the ICE agent to wait outside the courtroom, then ordered that recording of the hearing cease so that she could discuss with the prosecutor, the defendant, and his attorney how to go about frustrating the ICE agent in his duty.

Of course ICE agents would not need to go to courthouses to effect arrests at all, if Massachusetts exercised a sane policy and allowed them to do this in the secure confines of police booking stations and county jails, but Massachusetts judicial officials have opted instead to deny them that common-sense arrangement. Specifically, the Massachusetts Supreme Judicial Court stopped local law enforcement agencies and court officers from honoring detainers. Conversely, though, the state courts have issued a written policy that explicitly permits ICE agents to make arrests in courthouses, a policy this judge appears to have violated, and in the process committed obstruction of justice.

According to Law 360 (partially behind a paywall), to accomplish the escape of this Dominican criminal defendant, the prosecutor moved the judge to dismiss an extradition to Pennsylvania, where the defendant also had a criminal drunk driving charge for which a warrant had been issued after he failed to appear. The remaining Massachusetts-based charge was apparently a misdemeanor drug violation that "did not require keeping him in custody." I find this curious, especially since it was a criminal charge following on one that shows this defendant is completely indifferent to American laws of any kind. I have to feel sorry for the law-abiding denizens of the state, if this is the approach of their enforcement, prosecutorial, and judicial officers.

As a result of the dismissal of the fugitive charge on what sounds to me suspiciously specious grounds (as I explain below), there was thus no state prohibition to letting him go, and he ought to have been turned over to the ICE agent patiently waiting outside, blissfully unaware of what was going on within. Instead, the judge ordered him released and at her direction the court officer, using his coded security badge, escorted the defendant into the inner warrens and back halls of the court, through the lockup, and out the rear door onto the street.

It's outrageous that a sitting judge in any court would permit a man who has shown himself to be a scofflaw in two states — a man who drives drunk and probably with drugs in his system as well — to escape the immigration consequences of his actions. I'm pleased that the indictment has taken place and hope that a conviction soon follows.

When asked, the U.S. Attorney's Office declined to comment about whether charges might also be forthcoming against the defendant's attorney as the result of the courtroom hijinks. It's a fair question, but I have a few about the state prosecutor as well.

In its recounting of events, Law360 says that the hook the prosecutor used to seek dismissal of the extradition was because the defendant "didn't look the same" as the person in the Pennsylvania mug shot, but what brought the outstanding fugitive DWI warrant to the attention of Massachusetts enforcement officers when they arrested the Dominican was a fingerprint match, not his appearance — something any first-year prosecutor would have known.

This being the case, it seems pretty likely that he or she, too, was playing along with the judge's charade in order to facilitate the conspiracy to find a way to "legally" release him from Massachusetts custody so that the ICE apprehension could be defeated. Someone needs to ask the U.S. Attorneys Office about charging the state prosecutor, and maybe the Massachusetts Bar Association's ethics committee should be looking into the prosecutor and defense counsel's conduct as well.