Newton District Court Judge Shelley Joseph, perhaps the first Massachusetts judge to face federal indictment since Colonial times, is being punished as part of a campaign led by President Trump to enforce his hardline immigration policies, according to new court filings by her attorney.
Joseph became a flashpoint in the immigration debate last year when she was indicted for obstruction of justice for her role in allowing an undocumented criminal defendant to slip out a courthouse door before an Immigration and Customs Enforcement agent could detain him. Liberals, retired judges and defense attorneys defended Joseph, while conservatives called for her to be punished.
But Joseph’s attorney said the US Attorney in Boston, Andrew Lelling, had no plan to prosecute Joseph until a top immigration official in Washington said that he needed a prosecutor “willing to indict.” Her lawyer, Thomas M. Hoopes, insists that Joseph, a first-year judge, knew nothing about the plot to let Jose Medina-Perez escape on April 2, 2018, the day he fled from her courtroom.
The charges against Joseph are “part of a larger campaign by the federal government, led by the President of the United States and supported by various federal officials, to punish those whom they viewed as being too ‘soft’ or lenient in their treatment of undocumented immigrants," Hoopes wrote in court papers filed May 7.
He requested that a judge order prosecutors to turn over records that could help prove his case. Prosecutors have denied that politics played a role, arguing the case isn’t about immigration at all, but about a judge helping someone break the law.
On Monday, a spokeswoman for the US Attorney’s office declined comment because the case is pending, and said prosecutors will be filing a response to the motion in the next few weeks.
The charges against Joseph came a year after Medina-Perez, a Dominican national who had entered the country illegally three times, fled from the Newton courthouse. Wesley MacGregor, a now-retired court officer who allegedly helped him sneak out, was charged with lying to the grand jury investigating the incident.
But Joseph’s own actions raised suspicions, too. Before Medina-Perez escaped, the judge, in a sidebar conversation, instructed an assistant clerk to turn off the court’s recording machine. What followed was a 52-second gap during which, prosecutors allege, the judge agreed to let the defendant slip out the door.
In the 23-page motion filed in federal court, Hoopes paints a picture of bias against Judge Joseph from Washington to Boston, where prosecutors took unusual steps to indict Joseph. Among other things, Hoopes alleged that Lelling offered the architect of Medina-Perez’s escape, his lawyer David Jellinek, an “extraordinary sweetheart deal” to testify against the judge.
Hoopes claimed that the Newton incident immediately reverberated across the Trump Administration. The acting director of ICE was furious when he learned of Medina-Perez’s escape shortly after it happened, citing an interview with The New York Times published in November 2019.
“I remember I got angry,” Thomas D. Homan told the newspaper. “I asked, ‘Is there a legal action I could take?’ I was looking to do whatever I could do to make that happen.”
Homan 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 U.S. attorney who is willing to indict. I talked to my legal staff, they said it would be up to the U.S. attorney’s office.’”
In an interview with WGBH radio not long after Joseph’s April 23, 2019, indictment, Lelling said the evidence against Judge Joseph was compelling.
“We’ve heard rumors 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."
Still, Lelling told the Globe months earlier — in an interview published Dec. 12, 2019 — that he had “no plans to prosecute judges,” Hoopes said.
In the Globe interview, however, Lelling also said: “The ICE agents who are enforcing immigration laws, they’re doing just that. They’re enforcing a federal law ... if you obstruct what they’re doing, you’re committing a federal crime because you were obstructing enforcement of a federal law.” Hoopes did not cite that part of the interview.
The federal indictment of a state judge was so unusual that observers had to reach back more than a century to find the last time a judge was criminally sentenced. Judge William Whiting was found guilty of seditious libel in 1787 for defending the farmers who led Shays’ Rebellion. He was sentenced to seven months in jail and lost his judgeship.
At first, Joseph was placed on unpaid leave, but has since had her pay restored.
In the year since her indictment, the state (represented by Attorney General Maura Healey), the Massachusetts Association of Criminal Defense Attorneys, and the Ad Hoc Committee for Judicial Independence (represented by the ACLU) have all filed briefs in support of the judge.
In his court filing, Hoopes argued that Medina-Perez’s lawyer was the mastermind of his client’s escape, but prosecutors let him off the hook in exchange for blaming Judge Joseph.
Prosecutors, took “the highly unusual step of allowing an admitted architect and prime mover of an alleged criminal conspiracy to avoid any consequences for his action,” Hoopes wrote. He said Jellinek then offered a “fictitious version” of what was said during the 52-second off-the-record sidebar, swearing to prosecutors that while the recording machine was turned off Joseph agreed to let his client evade the ICE agent.
Hoopes also requested an investigation into alleged leaks to the Globe. He asserted that prosecutors gave information about the case to the newspaper in an attempt to influence potential jurors.
But federal prosecutors say there’s no evidence of bias. Lelling last year offered Joseph a plea deal which would have allowed her to escape criminal liability altogether if she agreed to accept responsibility for her conduct and cooperate in any investigation by the Massachusetts Commission on Judicial Conduct. The deal could have allowed her to continue her judicial career, something that would not be possible if she’s convicted of a crime.
Joseph turned it down.
Hoopes now “faces a high hurdle” to prove that prosecutors were vindictive, the prosecutors wrote. As long as the prosecutor has probable cause to believe a crime was committed, “the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion,” wrote Assistant United States Attorneys Dustin Chao and Christine Wichers.
Jellinek declined comment.
Andrea Estes can be reached at email@example.com.