Public reprimand suggested for Massachusetts judge accused of helping illegal immigrant escape ICE

A Commission on Judicial Conduct hearing officer has found that a Boston judge accused of helping an illegal immigrant defendant escape from court did not take part on the plan but should receive a public reprimand for impropriety.

Judge Shelley Joseph was charged by the CJC with five violations of the Rules of the Code of Judicial Conduct for allegedly helping the escape of Jose Medina-Perez, a twice-deported man who appeared in her Newton District courtroom to face state drug and fugitive from justice charges while being sought by U.S. Immigration and Customs Enforcement (ICE) in 2018.

A CJC hearing took place from June 9 to June 16 of this year.

“I find that Judge Joseph did not know about — much less authorize — the escape plan, and did not mislead court authorities following the incident,” hearing officer Denis McInerney wrote in the report dated Oct. 31 and publicly released Thursday.

McInerney did find, however, that Joseph “inadvertently created the appearance of impropriety and bias in two respects.”

Those are through, one, “her communications with the defense counsel and assistant district attorney during the defendant’s arraignment, and (2) by unknowingly violating a court rule when she granted the defense counsel’s request to go off the record during a discussion regarding the immigration authorities’ interest in taking custody of the defendant.”

The very detailed, 117-page report includes a draft reprimand that recounts the findings but does not recommend any period of monitoring Judge Joseph, who now serves in Boston Municipal Court, nor that she pay the costs of the investigation into her actions.

“While I fully share the view that public trust in the judiciary is an important consideration, I disagree that Judge Joseph is unable to command the public’s respect and authority in the future,” McInerney concludes.

He adds that since the incident, she has “repeatedly demonstrated through her conduct … that she is a thoughtful, diligent, and conscientious judge undeserving of the harsh public criticism that she has received in connection with the matter, and entirely worthy of the opportunity to finally move on from it.”

Findings

McInerney’s report suggests that the Newton court personnel, including the “new and inexperienced judge” who had taken her oath of office only five months earlier, did not know a number of legal things they should have.

That included understanding the “Lunn” policy the Executive Office of the Trial Court issued in November 2017 following a Supreme Judicial Court ruling earlier that year, which guides court responses to ICE’s work in the courthouses. Joseph boned up on the decision during the lunch break and learned that ICE agents with a detainer against a defendant were only to take custody of the defendant in the lock-up area of the court.

The first justice of the Newton court also had a standard procedure not to allow ICE agents to sit in the courtroom, and since Joseph found this procedure did not violate Lunn, she opted to abide by that procedure and barred the ICE agent in the courtroom for Medina-Perez from sitting as the case continued into the afternoon session, according to the CJC report.

Joseph and courthouse staff also did not know of the District Court rule to not go off-the-record during hearings, barring limited exceptions. What happened next during the hearing — which the report states is key to the case — was an off-the-record sidebar between Joseph and the attorneys. The 52-second sidebar discussion was not recorded or made part of the record, so it is the defense attorney’s word against that of Joseph and the assistant district attorney.

The defense attorney, David Jellinek, who was hired that day to replace the public defender, says that he hatched a plan during the sidebar to have Medina-Perez escape through the back door of the courthouse to avoid the ICE agent, and that Joseph approved the plan.

Joseph denied Jellinek’s claim and said that he had simply asked to be able to speak to his client, who was being released from state custody, with an interpreter in the lockup area, which Joseph approved. The ADA “fully corroborates Judge Joseph’s position,” though she did say that she found the sidebar to be “weird or sketchy” and “uncomfortable.”

McInerney wrote that he found Jellinek’s version of events “implausible” — and his testimony “inconsistent” — as sharing the plan with the judge and prosecutor could have jeopardized it, and all he needed to do to pull off the escape was to get permission to accompany his client to the lockup area, “a completely reasonable request under the circumstances.” Further, Jellinek had encounters with the ADA and the public defender after the escape, both of whom didn’t approve of what he did, and he didn’t implicate Joseph in the plan to them at the time.

The report also states that Joseph had, “without the slightest hesitation,” allowed the ICE agent to go to the lockup area to apprehend Medina-Perez.

While the report clears Joseph of participating in the escape, it does find that her actions “created the appearance of impropriety and bias” by making statements — including “what can we do” about the ICE detainer, according to the prosecutor — that show a possible bias against ICE and for granting an off-the-record sidebar regarding ICE.

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