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    Adrian Walker

    Governor Baker shouldn’t find judge guilty while the investigation is still underway

    Boston, MA - November 15, 2018: Massachusetts Governor Charlie Baker talks with The Boston Globe in his office at the Massachusetts State House in Boston, MA on November 15, 2018. (Craig F. Walker/Globe Staff) section: metro reporter:
    Craig F. Walker/Globe Staff
    Governor Charlie Baker

    Did a state judge help a man slip out a courthouse back door — literally — and avoid federal immigration authorities?

    And if she did, does that make her a heroine, a criminal, or something in between?

    Newton District Judge Shelley M. Joseph was hearing a drug case in April when she became aware that an officer from Immigration and Customs Enforcement was in the courthouse waiting to take the defendant, Jose Medina-Perez, into custody.

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    As the Globe reported on Sunday, what exactly happened after that quickly becomes murky.

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    The judge and attorneys for the defense and prosecution held a sidebar at the bench to discuss the situation. According to an audio recording, the judge raised the possibility of continuing the case, which would have had the effect of freeing the defendant — but not keeping him from being detained by ICE. Joseph asked that the recording of the hearing to be turned off — though recording is mandatory — and what was said in the 58 seconds that wasn’t recorded is not known.

    This much is clear: Medina-Perez was released from custody and escorted downstairs. He went out a back door, scaled a fence, and took off, eluding ICE. And the US attorney for Boston has convened a federal grand jury to probe whether court officials broke any laws in possibly allowing Medina-Perez to evade detention, the Globe reported.

    Joseph’s role has come under scrutiny in the case. Governor Charlie Baker weighed in Monday, and he seemed fully prepared to kick due process to the curb in this investigation. He said Joseph, whom he appointed last year, should be removed from sitting on criminal cases for the course of the investigation.

    “I don’t believe she should be hearing criminal cases until that federal case is resolved,” Baker said. “Look, judges are not supposed to be in the business of obstructing justice.”

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    Take another look at that statement. Baker has already decided that Joseph has obstructed justice. Who needs a grand jury when we have Baker?

    No doubt, there’s plenty to investigate in this case, but it isn’t clear what Joseph did, or why. ICE was after Medina-Perez because he had been deported twice, in 2003 and 2007. Newton police arrested him after pulling him over on March 30. A check of a national database showed an outstanding warrant for a drunken driving arrest in Pennsylvania. Police allege they found a pill and two bags of white powder they believed to be cocaine. He was charged with two drug offenses and being a fugitive from justice.

    After the judge and the attorneys conferred in the sidebar, the fugitive charge was dismissed because the Pennsylvania mug shot did not match the man in the courtroom. The drug charges didn’t mandate holding him in custody. Medina-Perez was free to go, and he got away from the ICE agent waiting to grab him. He was arrested later in April and freed on bond. His case is pending.

    This wasn’t the first conflict between state and federal officials over courthouse detention, and it won’t be the last. Many judges and lawyers worry that courthouses are becoming places immigrants are afraid to go.

    At the same time, court officers are not supposed to walk potential detainees to the nearest remote door, unlock it, and whisk them to safety. In some sense, this has been a battle waiting to happen.

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    Joseph is highly regarded in legal circles, a former prosecutor and defense attorney. Absent any finding of wrongdoing, talk of her not sitting on criminal cases is premature. Moreover, the decision of whether she can or should hear criminal cases rightly belongs to her superiors in the Trial Court — which the governor doesn’t run.

    There is a legitimate and robust debate to be had about enforcing immigration laws in courthouses. But Joseph shouldn’t be stepping down from anything in mid-investigation. Judges are as entitled to due process as any of the rest of us.

    Adrian Walker is a Globe columnist. He can be reached at adrian.walker@globe.com. Or follow him on Twitter @adrian_walker