More than three years after Newton District Judge Shelley Joseph and a former court officer were indicted for allegedly helping an undocumented immigrant evade capture, the case has stalled in the federal court system, with her supporters urging the Department of Justice to reconsider the charges amid a shift in immigration policy under the Biden administration.
In February, a federal appeals court refused to dismiss obstruction of justice charges against Joseph and the court officer, Wesley MacGregor, for allegedly preventing a federal immigration officer from taking the immigrant into custody, instead allowing the man to leave the courthouse by a back door. But since then, there have been few filings in the case and a trial date has not been set.
Defense lawyers argue in court filings that the charges against the pair were politically motivated by the Trump administration as part of its hard-line immigration policies, and other supporters argue the Justice Department under President Biden should drop the case altogether.
”It’s a bad memory of a terrible time in our nation’s history,” said Susan Church, a prominent immigration lawyer based in Cambridge, who said the charges had a chilling effect on the judiciary and should be dropped. “She got caught up in the hysteria created by Trump against immigrants.”
Lawyers for Joseph and MacGregor declined to comment.
But the former US attorney who brought the indictment against Joseph and MacGregor in April 2019 said the case solely rests on the judge’s conduct, not the Trump administration’s immigration policies.
“It was prompted by a serious abuse of judicial power: if the allegations are true, a judge actively helped a fugitive evade federal authorities (who were literally next door), covered her tracks by manipulating the court record, and then lied about it to her bosses,” Andrew Lelling, whom Donald Trump had appointed US attorney for Massachusetts, wrote in an e-mail to the Globe. “Only in our hyper-politicized times could anyone think this was even remotely appropriate.”
However, Lelling did acknowledge that “it’s obviously a unique case.”
The decision on how to proceed has largely fallen to Rhode Island US Attorney Zachary Cunha, after Lelling’s successor, US Attorney Rachael Rollins, was recused by the Justice Department because of a potential conflict of interest. As the Suffolk district attorney, a position she held before she was appointed US attorney, Rollins had joined a lawsuit against the federal government seeking to prevent immigration officials from arresting people in state courts.
Cunha declined to comment, according to a spokesman for his office.
The case was filed amid a polarizing debate over immigration enforcement as Trump vowed to more aggressively target undocumented immigrants and crack down on “sanctuary cities” that gave them safe haven.
.Joseph, who was appointed by Governor Charlie Baker, a Republican, had been on the bench for five months when, on April 2, 2018, an undocumented immigrant from the Dominican Republic was brought before her in Newton District Court. He faced misdemeanor drug charges, for possessing a pill and two bags believed to contain cocaine, and was wanted on a fugitive warrant for drunken driving in Pennsylvania. At the time, the man was initially identified as Jose Medina-Perez, but he was later confirmed to be Oscar Manuel Peguero.
In court that day, a state prosecutor dropped the fugitive charge after concluding the Pennsylvania warrant was for a different man, and recommended releasing Peguero without bail. However, an agent with Immigration and Customs Enforcement had arrived at the Newton courthouse with a warrant to take Peguero into federal custody to initiate deportation proceedings after fingerprints taken by police showed he had previously been deported from the United States in 2003 and 2007.
Prosecutors allege Joseph ordered the ICE agent to leave the courtroom, in violation of court policy, and wait in the lobby, even though, prosecutors say, the agent was authorized to take Peguero into custody, either by meeting him in lockup or outside the courtroom as soon as he was released.
The judge instructed the court clerk to shut off the recorder for 52 seconds. Prosecutors allege it was to conceal a conversation with Peguero’s lawyer, David Jellinek, where they devised a plan to prevent the ICE agent from detaining Peguero on his way out of the courthouse.
MacGregor used his security key to let Peguero out the back door, according to the indictment. Peguero was arrested later that month on the immigration charge and freed on bond by an immigration judge, according to ICE.
Recently, the state drug charges were dropped against Peguero, 43, and he was released, according to court filings.
Joseph and MacGregor are charged with conspiracy to obstruct justice and two counts of obstruction. MacGregor is also charged with perjury for his testimony before a federal grand jury several months after the incident.
They both deny any wrongdoing. In court filings, Joseph’s attorneys say that Jellinek was “the architect and ringleader of the plan” to help his client evade the ICE agent and that the judge was unaware of it.
Jellinek declined to comment.
Joseph, 54, was placed on unpaid leave from the state court system after her arrest, but months later the state’s highest court reinstated her $184,000 annual salary during her leave. MacGregor, 59, retired the month before the indictment.
In a court filing in April, Joseph’s lawyers argued that e-mails exchanged by ICE officials before and after her indictment show circumstantial evidence of the Trump administration’s “political bias in seeking this indictment and its desire to send a forceful warning message to those supporting sanctuary cities and undocumented immigrants.”
But prosecutors argued in court filings that the ICE e-mails were “neither surprising nor improper.”
“They show that certain ICE officials felt strongly that Joseph broke the law and should be held accountable,” prosecutors wrote in response.
Church, the immigration attorney, said that, overall, “the really heartbreaking, painful, heated arrests that were occurring under the Trump administration have died down.”
“The system has humanity back in it and I think getting rid of this case would be a good positive symbol of this administration’s intent to have a more humane immigration system,” she said.
Nancy Gertner, a retired federal judge who has consulted with Joseph’s attorneys, said that regardless of immigration policy, the judge should not have faced prosecution for how she conducts her courtroom, such as whether to release a prisoner out one door or another.
“It’s not just that the change in immigration policy and the change in administration should lead this administration to throw out these charges — they never should have been brought to begin with,” Gertner said.
But, Boston attorney and former federal prosecutor Brian T. Kelly said it would be “highly unusual” for the government to drop the indictment after the federal appeals court refused to dismiss it. The court said it does not have jurisdiction to review the case because Joseph and MacGregor have not gone to trial.
“Either way it’s going to be viewed as a political act, whether they drop the charges or for being brought in the first place,” Kelly said. “It’s probably best to let a jury decide.”
Meanwhile, Peguero’s fate is also uncertain. He is expected to be a witness against Joseph and MacGregor if the case goes to trial. Information about his current immigration status was not readily available, according to a spokesman for Immigration and Customs Enforcement.
The attorney who later represented Peguero in the drug case, Joseph Perullo, said his client was freed when another Newton District judge dismissed his case on June 28 after he completed several months of pretrial probation.
Notably, Perullo said no one from ICE showed up at the court.
“He walked out the front door,” Perullo said.