WGBH News Opinion

Andrew Lelling, the U.S. Attorney for the District of Massachusetts, triggered a political firestorm almost a month ago when he obtained an indictment of Newton District Court Judge Shelley Joseph on obstruction charges.

Although I disagree with Joseph’s decision to release Jose Medina-Perez, a noncitizen who had entered the United States illegally, I also believe that Lelling is guilty of prosecutorial overreach.

But that’s not the whole story.

To further complicate an already disagreeable situation and it is important to understand the role that the Massachusetts Supreme Judicial Court played in triggering this avoidable confrontation.

But first, let’s review the background of how we got to where we are today.

Medina-Perez was before Joseph on drug charges and a Fugitive Warrant from the State of Pennsylvania. The indictment alleges that Joseph knew that ICE had a Detainer and a Warrant of Removal — a civil, not criminal process — to arrest Medina and that an agent of the U.S. Immigration and Customs Service was present to arrest him, if he were released. Instead, the indictment alleges, Judge Joseph allowed the defendant leave through the back door of the downstairs lockup, avoiding the ICE agent.

Before the hearing, Judge Joseph instructed employees to have the ICE officer leave the courtroom. The indictment alleges that during the hearing the judge went off the record, turning off the Courtroom recorder for 52 seconds, during which she and defense counsel discussed a plan to have the defendant brought downstairs to evade the ICE agent. At the end of the hearing the defendant was released on the state charges. Then Judge Joseph, at the request of defense counsel, ordered the defendant brought downstairs to the lockup to get his things and speak to counsel with the court interpreter rather than be released from the dock into the courtroom, as was the usual practice for defendants released from state custody. She also ordered that the ICE agent not be admitted to the lockup.

The conduct of hearings such as this one is largely a matter of the judge’s discretion. My own view is that our immigration laws should be enforced. ICE agents are law officers not storm troopers from whom the Commonwealth needs to protect its populace. During my 25 years as a District Court Judge, I would therefore not have exercised my discretion in the same way Judge Joseph did.

While I disagree with her actions, I certainly do not think they rise to the level of a crime. The Federal statute she is accused of violating requires that the proscribed action be done “corruptly.” At worst, Judge Joseph made an error of law or acted beyond her discretion in keeping the ICE agent from the courtroom and lockup. A judge’s uncorrupt decisions in her court that make it more difficult for ICE to do its work cannot constitute criminal obstruction. A judge should not be indicted for elevating other considerations in the exercise of her discretion above enabling enforcement of Federal immigration enforcement efforts.

U.S. Attorney Lelling has abused his prosecutorial authority. The indictment is radical and dangerous overkill. ICE or the U.S. Attorney would better have complained about the ICE agent being barred from the courtroom and lockup to the Chief Justice of the SJC, the Trial Court or the District Court or filed a complaint with the Judicial Conduct Commission which has jurisdiction over such complaints against judges. The US Attorney is not truthful when he says he doesn’t choose which laws to enforce and whom to indict. Prosecutors make those decisions all the time. He himself has announced that he is not prosecuting violations of Federal marijuana law in Massachusetts.

The indictment is an assault on an independent judiciary, usually the first target of aspiring despots, as we have recently seen in Venezuela, Turkey, Hungary and Poland.

The U.S. Attorney’s actions are also a major escalation in the war on Comity currently raging in Massachusetts. Comity is a legal principle providing that state and national governments will recognize each other’s legislative, executive, and judicial acts out of deference, mutuality and respect. Our liberties are protected by two layers of State and Federal government, each with three branches, all watching each other. That unwieldy structure functions only with the grease of Comity.

The first shot in the war on Comity was fired, however, not by U.S. Attorney Lelling but by the Supreme Judicial Court. During my 50 years as a lawyer and judge, state judges, under the principle of Comity, routinely had held defendants after release on state charges, on Immigration Detainers for pickup by ICE and its predecessor INS, the U.S. Immigration and Naturalization Service. However, in 2017 the SJC in the case of Lunn v. Commonwealth ruled, unnecessarily and unwisely in my own opinion, that courts could no longer honor ICE Detainers, as they were civil in nature and required specific statutory authority for Court Officers, who have police powers in the courthouses, to hold a prisoner on an ICE Detainer. The word “Comity” does not even appear in the Lunn decision.

The Lunn decision put judges and other court employees in the position of navigating a blurred line between compliance with it and violation of the Federal statute on Obstruction of Immigration Removal proceedings. Judge Joseph’s exercise of her discretion in this case was in enthusiastic observance of the spirit of the SJC’s Lunn decision, although she exceeded its letter. The Lunn decision only prohibited holding defendants on ICE detainers. The Trial Court Executive Office has issued policy guidance requiring respectful treatment of all persons entering a courthouse, including both persons subject to ICE Detainers and ICE employees. ICE agents are allowed to enter the lockup areas to arrest persons who have been released from state custody.

The War on Comity continues. The Lunn ruling, Judge Joseph’s own skirmish against Comity, and the U.S. Attorney’s charges against a sitting judge for decisions made in the courtroom were followed by a new battle. The Suffolk and Middlesex County District Attorneys have now brought a lawsuit brought in Federal Court seeking to exclude ICE agents from state courthouses. They argue that the recent increased presence of ICE agents in courthouses discourages undocumented immigrants from appearing at court or participating in the justice system. The irony seems lost on them that it was the Lunn decision which caused the increased appearance of ICE agents to arrest people for whom they have Detainers, as the courts will no longer hold them for pickup. The courthouses of Massachusetts should not be places of sanctuary from the law but the place in which it is carried out.

It is distressing that the public debate over the indictment of Judge Joseph has been conducted on the basis of the speaker’s views on the issue of immigration enforcement. The important values at stake here are Comity and an independent judiciary. A good start toward restoring both would be for the legislature to pass a law proposed by Governor Baker providing statutory authority for Court Officers to honor ICE detainers for up to 12 hours and a Federal judge to dismiss the charges against Judge Joseph.

Brian R. Merrick was a Massachusetts District Court Judge for 25 years, retiring in 2014 as Presiding Justice of the Orleans District Court. He blogs at MonkfishOnCape.com.