Minutes into the Newton District Court hearing for Jose Medina-Perez, his defense attorney asked the judge if he could approach the bench for a quick chat.
There, in hushed tones and whispers, the attorney walked through his client’s predicament with District Judge Shelley M. Joseph and a state prosecutor. They debated what to do with the defendant, who was in immediate danger of being deported.
Medina-Perez, picked up by Newton police on drug charges, faced a fugitive warrant for drunken driving in Pennsylvania and a detainer from US Immigration and Customs Enforcement, according to a courtroom audio recording of the bench conference. In fact, an ICE agent was in the courthouse, waiting to detain Perez and start the deportation process.
“ICE is going to get him,” the judge told the attorneys during the April 2 sidebar conversation. “What if we continue [the case]?” she suggested, before instructing a clerk to turn off the courtroom’s audio recorder. Whatever was said during the next 58 seconds went unrecorded.
Minutes later, Medina-Perez was escorted downstairs, released from custody, and allowed out a back door, according to two people briefed on the episode. He scaled a fence and took off, leaving the immigration agent behind, the people said.
Listen: Recorded conversation in court
This was not the first time a Newton judge has appeared to help an undocumented immigrant — last year a man accused of rape facing deportation was released on $2,500 bail — but this time the US attorney in Boston has convened a grand jury to investigate.
The actions of the judge and court personnel that afternoon are the focus of a probe into whether they broke the law in helping Medina-Perez evade federal authorities, according to five people with direct knowledge. Several court employees have recently testified before the grand jury, one of the sources said.
The federal investigation into a sitting state court judge is extraordinary and underscores the highly politicized push and pull between state authorities and federal officials who have been instructed to crack down on undocumented immigrants.
Former US attorney Michael J. Sullivan said it would be “shocking” — and possibly obstructing justice — if any court official helped a defendant flee from federal authorities.
“There is a big difference between doing nothing and taking affirmative steps to prevent some authority from exercising its rights,” he said.
Joseph, who was appointed to the judiciary by Governor Charlie Baker last year, declined to comment. The first-year judge spent years as both a criminal defense attorney and a prosecutor, before ascending to the bench.
Her actions may have run afoul of at least two court policies. The Trial Court, which declined to comment on the current investigation, has a clear requirement that judges and other court personnel should neither help nor hinder federal agents.
And then there is the court rule that all sessions, with the exception of those presided over by a clerk, must be recorded.
If the judge had followed that rule, it would be clearer what exactly her role, if any, was in the controversy.
‘There is a big difference between doing nothing and taking affirmative steps to prevent some authority from exercising its rights.’— Michael J. Sullivan, former US attorney
The acting field office director for ICE in Boston, Todd M. Lyons, declined to comment specifically about the investigation, but commented generally about the agency’s concerns over interfering with ICE apprehensions.
“It would be gravely concerning to us, as well as disrespectful to the men and women of ICE who put themselves in harms’ way to protect our communities, if any one, especially a representative of a court, were alleged to have taken deliberate actions to aid an immigration fugitive in evading the law,” Lyons said in a released statement.
Medina-Perez couldn’t be reached, and his attorney, David Jellinek, declined to comment.
Middlesex District Attorney Marian Ryan declined to comment, and a spokeswoman for US Attorney Andrew E. Lelling said she could not confirm or deny the existence of a grand jury.
Former federal prosecutor Brian T. Kelly said court officials don’t have immunity from federal prosecution if federal laws are broken.
“What’s unusual are the targets,” Kelly, now a white-collar defense attorney, said of this reported federal probe.
Federal authorities have historically issued detainers — requests to state and local officials to hold an immigrant wanted for deportation for up to 48 hours until an ICE agent can retrieve the person.
The Supreme Judicial Court of Massachusetts ruled last year that police could not keep someone in custody solely on an immigration violation. Several Massachusetts communities, including Boston and Newton, have declared themselves sanctuary cities that will not help ICE round up undocumented residents.
However, Baker has sought to strengthen local police officers’ authority to detain undocumented defendants who have been convicted of violent crimes.
Medina-Perez’s time on the run didn’t last long. He was arrested later in April in Roslindale. He was freed on bond by an immigration judge and his case is pending, according to ICE. His real name is Oscar Manuel Peguero, officials said, and he is a 38-year-old citizen of the Dominican Republic. He was deported twice before — in January 2003 and June 2007 — according to ICE.
His history in the country — as well as his actual age and identity — is clouded by conflicting accounts in court documents and police reports.
He was arrested on March 30 by Newton police, who ran his car registration through a national database and found an outstanding warrant for a drunken driving arrest out of a Pennsylvania court, records show. Newton police officers allegedly found a pill and two bags on him, containing white powder they believed was cocaine.
Medina-Perez, who claimed he was 36 and a US citizen living in Brockton, was charged with possession of class B and class E substances, and being a fugitive from justice. Police also found he had an alias, Julio Alexis Rios, in a federal database, police reports show.
His initial court appearance on April 2 was delayed in order for the court to provide him a lawyer and a Spanish interpreter.
When the hearing resumed that afternoon, his attorney, Middlesex County prosecutor Shannon Jurgens, and the judge huddled in the sidebar conference.
Their conversation — only occasionally audible on the recording — focused on the defendant’s immigration issue and whether he was the same person wanted on the fugitive warrant from Pennsylvania.
“ICE is convinced that this guy . . .” his lawyer, Jellinek said, his voice trailing off. “ICE will pick him up if he walks out the front door. But I think the best thing for us to do is clear the fugitive issue and release him . . . ”
The prosecutor chimed in: “There is a detainer attached to my paperwork, but I felt like that’s separate and apart from what my role is.”
“ICE is going to get him,” the judge said, before asking the clerk to go off the record, and halting the courtroom recording.
The recording picked up roughly one minute later. The prosecutor asked Joseph to dismiss the warrant matter and proceed with the drug charges, neither of which required him to be held in custody. The fugitive charges were dropped because the Pennsylvania mug shot did not match the man in the courtroom, according to the Middlesex district attorney’s office.
Since prosecutors dropped the fugitive warrant charge, it would appear Joseph was free to release him on that matter. However, if anyone helped Medina-Perez evade immigration agents, they could be potentially be in violation of court rules or federal law.
In court, Jellinek asked the judge to allow him to accompany Medina-Perez downstairs with an interpreter because “he has got some property” there.
Shortly later, as the arraignment wrapped up, a courtroom employee informed the judge that “there was a representative from ICE here . . . requesting permission to visit lock-up.”
“I’m not going to allow them to come in here,” Joseph responded.
Minutes later, Medina-Perez left through a rear courthouse door, according to two people briefed on the incident.
Newton Police Chief David MacDonald said that after the April incident in Joseph’s court, he met with the Newton court’s presiding judge and the supervisor of the court officers.
“I was assured that incidents like this wouldn’t happen again,” he said, adding that he was “not 100 percent sure” what occurred in the Medina-Perez case. “I talked to several people and there are shades of the same story,” MacDonald said.
Ivan Espinoza-Madrigal, executive director of the Lawyers’ Committee for Civil Rights and Economic Justice, said he hasn’t heard of anything like the case of Medina-Perez, but knows clergy and local elected officials have taken steps to “ensure the safety and well-being of immigrants.”
Espinoza-Madrigal said federal authorities, instead of scrutinizing the circumstances in Newton, should look at legality of federal agents “trolling” courthouses to pick up immigrants.
“This is part and parcel of a strategy being implemented by the federal government to deprive immigrants of an opportunity to appear in court and to generate tremendous fear and uncertainty in immigrant communities,” he said.
Joseph had been a judge for just six months when Medina-Perez appeared before her.
She previously worked in criminal defense at her own firm, Joseph & Joseph, according to its website. She had also spent several years in the 1990s as a prosecutor in the attorney general’s office. She once worked as legislative counsel to state Senator Marc Pacheco and served on the Democratic State Committee.
Timothy M. Burke, a prominent attorney who testified on her behalf at her confirmation hearing before the Governor’s Council, called her “an outstanding lawyer as well as a compassionate jurist.”
“Her experience is clearly based upon a humanistic approach to the criminal justice system. I don’t know any of the particulars of this matter, but I have every confidence in her decision-making ability and support her without question.”
Joseph is not the first judge in Newton to show leniency toward a defendant with an immigration issue.
Last year, the court’s presiding judge, Mary Beth Heffernan, freed a previously deported immigrant from the Dominican Republic accused of raping a Boston College student. The man, Luis Baez, drove for Uber using a fake name. Heffernan rejected prosecutors’ request for $100,000 bail, setting a bail of $2,500, which the accused paid, and then fled.
The polarizing debate on immigration policy — especially in liberal Massachusetts — has pitted state and local authorities against federal immigration officials.
Some say the federal government’s increasingly hard-line stance on immigration has had a chilling effect on the administration of justice at the local level.
“One of the fundamental tenets of our justice system is people should have ready and easy access to the court system to bring grievances or contest the charges against them,” said Sarah R. Sherman-Stokes, associate director of the Immigrants’ Rights and Human Trafficking Clinic at Boston University. “The fear that ICE will be in [the] courtroom is undoubtedly jeopardizing that access. It really imperils the functioning of the judiciary in really deep and problematic ways.”
Recently, judges have become more and more outspoken against the presence of ICE officers in the courthouse.
Earlier this year, Boston US District Court Judge Indira Talwani rebuked ICE for arresting a Chinese national outside the courtroom after she had been placed on probation for fraud.
“I see no reason for places of redress and justice to become places that people are afraid to show up,” Talwani said, according to published reports.Shelley Murphy of the Globe staff contributed to this report. Andrea Estes can be reached at email@example.com. Maria Cramer can be reached at firstname.lastname@example.org. Follow her on Twitter @GlobeMCramer.