Indicted Massachusetts Judge To Get Back Pay and Continuing Pay While Federal Obstruction-of-Justice Case Proceeds

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A state judge who prosecutors say helped an illegal immigrant elude federal agents at a Newton courthouse will get back pay and start drawing her normal salary without working while she remains suspended.

The Massachusetts Supreme Judicial Court ruled 5-1 on Tuesday that Shelley M. Richmond Joseph, who is under a federal indictment for obstruction of justice, must get back pay and benefits but cannot return to work even in an administrative capacity while her case is pending. The decision upends a ruling the same court made less than four months ago.

Since federal court cases can take months and even years, the ruling sets up the possibility that Joseph will continue receiving her $184,694 annual salary indefinitely while she is not working.

Joseph had been paid $62,512 between January 1, 2019 and April 27, according to the Massachusetts Comptroller’s state employee payroll database. That’s 117 days. From April 27 to August 13 is 108 days.

On April 25, the Massachusetts Supreme Judicial Court suspended Joseph without pay after a federal grand jury indicted her on charges of conspiracy to obstruct justice; obstruction of justice, aiding and abetting; and obstruction of a federal proceeding, aiding and abetting.

An illegal immigrant from the Dominican Republic named Jose Medina-Perez came before the judge in Newton District Court on April 2, 2018 after being arrested by Newton police on charges of drug possession and being a fugitive from justice in Pennsylvania. A federal Immigration and Customs Enforcement agent showed up at the courthouse the morning of the arraignment, looking to detain the suspect for possible deportation. Federal authorities say the man had previously been deported and ordered not to return to the country until at least 2027.

According to federal prosecutors, Joseph held the case until late in the afternoon, then had it called at 2:48 p.m. and discussed the man’s vulnerability to being deported with the state prosecutor and defense lawyer, at one point ordering the court’s tape recorder to be turned off for about 52 seconds, which is against Massachusetts court rules.

Then, according to federal prosecutors, the judge dismissed the fugitive-from-justice-case, decided not to hold the suspect on the drug charges (with the state prosecutor’s consent), and allowed him to be taken to the lockup area downstairs instead of being released from the courtroom into the lobby. Federal prosecutors say a court officer escorted the defendant to the sally-port exit in the rear of the building and let him go, helping him to elude the federal agent, whom the judge had ordered through a clerk to wait in the lobby outside the courtroom.

A court officer who prosecutors say helped carry out the scheme was also indicted on obstruction-of-justice charges, plus a count of perjury.

The court officer, Wesley Macgregor, has since retired. If he hadn’t, he would have been suspended without pay, because the Massachusetts Trial Court Personnel Policies & Procedures Manual requires it.  It states:  “An employee who is indicted for misconduct in office (G.L.c.30, Section 59) or who is the subject of a criminal complaint or indictment for a felony not involving misconduct in office, shall be suspended without pay until the conclusion of the criminal proceedings.”

Massachusetts judges aren’t subject to the trial court employees manual, the state’s highest court ruled.

Instead, they are subject to the state Supreme Judicial Court. Five of the court’s seven justices decided to reverse the court’s previous decision to suspend her without pay, albeit for somewhat differing reasons. They agreed that she can’t do her job or even perform purely administrative tasks for the court while under indictment, but that she should continue to get paid nonetheless.

“I recognize that this means that an indicted judge will be paid from public funds but will not be able to earn that salary through the performance of judicial or other duties. I also recognize that, in the eyes of the general public, this is not a productive use of public funds. I agree, but I think it is the best of the bad alternatives under these circumstances,” wrote Chief Justice Ralph D. Gants in the court order, joined by justices Barbara A. Lenk and Kimberly S. Budd.

Gants wrote that suspending a judge without pay is “more severe” than suspending a court employee (such as a court officer) without pay because a court employee is not subject to the Massachusetts Code of Judicial Conduct, “which severely restricts a judge’s opportunity to earn income during the period of suspension.”

“A judge during suspension may not practice law, serve as a mediator or arbitrator, or serve as an officer or employee of any business entity. … For all practical purposes, a judge may earn income during a period of suspension only from teaching and writing, which, for most judges, is unlikely to yield substantial earnings,” Gants wrote.

Even more important, Gants wrote, is judicial independence – even from indictments.

“As much as this court respects the usual integrity of prosecutors and grand juries, we cannot delegate to them the decision to suspend a judge without pay through the issuance of an indictment, where any such indictment is based solely on a finding of probable cause and where the process due for returning an indictment is far less than the process due for returning a guilty verdict,” Gants wrote.

Two justices concurred in Gants’s decision but issued a separate opinion zeroing in on the federal indictment brought by the grand jury in April with the prodding of U.S. Attorney Andrew Lelling.

The concurring opinion, written by Justice Scott Kafker, first takes issue with Gants’s walling off of judges for different treatment when it comes to indictments.

“In evaluating whether the suspension of a judge is with or without pay in these circumstances, I am mindful that the public and the press are understandably highly sensitive to, and suspicious of, anything that could appear to be special treatment, especially special treatment of judges by other judges. If other public officials and court employees can be expected to be suspended without pay following an indictment for misconduct related to their employment, the obvious question is why should judges not be subject to the same expectations?” Kafker wrote. “It is not enough to say that a judge must be suspended with pay simply because the judiciary’s ability to investigate the misconduct is limited by the pending indictment. To hold as much creates a special privilege for judges.”

But Kafker later questions Lelling’s prosecution of the state judge, suggesting it sets up a conflict between a federal agency’s law enforcement policy and state court policy, and therefore raises a serious question about judicial independence.

An Immigrations and Customs Enforcement policy recommends that agents arrest illegal immigrants targeted for deportation in courthouses when they are there for other cases.

“Individuals entering courthouses are typically screened by law enforcement personnel to search for weapons and other contraband. Accordingly, civil immigration enforcement actions taken inside courthouses can reduce safety risks to the public, targeted alien(s), and ICE officers and agents. When practicable, ICE officers and agents will conduct enforcement actions discreetly to minimize their impact on court proceedings,” states an ICE policy issued in January 2018.

The ICE policy continues:

“Federal, state, and local law enforcement officials routinely engage in enforcement activity in courthouses throughout the country because many individuals appearing in courthouses for one matter are wanted for unrelated criminal or civil violations. ICE’s enforcement activities in these same courthouses are wholly consistent with longstanding law enforcement practices, nationwide. And, courthouse arrests are often necessitated by the unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails.”

A Massachusetts Trial Court policy of November 2017 sets forth a don’t-hinder-don’t-help policy toward federal immigration agents.

“Trial Court employees shall not hold any individual who would otherwise be entitled to release based solely on a civil immigration detainer or civil immigration warrant,” states the trial court policy, signed by trial court chief justice Paula M. Carey.

The policy says that federal Department of Homeland Security agents are supposed to inform state court officers when they enter a courthouse why they are there, and the court officers are supposed to inform a judge or court administrator.

State court officers are supposed to allow federal agents into the holding cell area of the courthouse to take illegal immigrants into custody “if a security department supervisor determines that the DHS official would otherwise take custody of the individual inside or immediately outside of the courthouse.”

In cases where an illegal immigrant isn’t in state custody, “Trial Court employees shall neither impede DHS officials from doing so nor assist in the physical act of taking that individual into custody,” the policy states. Federal agents can’t use “nonpublic spaces” of a courthouse such as clerk’s offices or probation offices, and can’t take someone into custody inside a courtroom without prior permission from a judge.

To Justice Kafker, this conflict between federal and state policies raises doubt in the federal case against Joseph.

“In these circumstances, where the facts and law require much further elucidation to determine whether Judge Joseph was unlawfully obstructing Federal law enforcement or lawfully performing her judicial duties, I cannot rule out the possibility that the independence of the State judiciary itself may be implicated by the prosecution here. Without knowing all the facts, concerning which I cannot make judgments at this point, an argument can be made that the indictment implicates the independence of the State judiciary and its lawful attempts to regulate the conduct of ICE in State court houses, and that the indictment may affect other State judges in the performance of their duties,” wrote Kafker, joined by Justice Elspeth Cypher in the concurring opinion.

Kafker noted that apart from the federal prosecution “there remain serious allegations of judicial misconduct” against Joseph “that may require investigation by the Commission on Judicial Conduct … beginning with her decision to turn off the tape recorder.” Such a state-level investigation, he said, “likely cannot proceed to completion until the criminal proceedings are concluded,” but could result in suspension without pay even if Joseph is acquitted in federal court.

For the lone dissenter, Justice Frank Graziano, it’s a much simpler case:  Judge Joseph was indicted, every other employee of the judiciary who is indicted would be suspended without pay, the Supreme Judicial Court suspended the judge without pay, and no new facts have emerged.

“We reached this unanimous result, after careful deliberations, fully aware of the minimal standard required for a grand jury to return an indictment, and knowing that the sanction of suspension without pay was harsh. We also were cognizant of the important role that judicial independence plays in our democracy. These concerns were outweighed, however, by our collective belief that it was necessary to suspend Judge Joseph without pay to preserve the integrity of the judicial system. The decision was a difficult one that was based, in large part, on our desire to treat the judge in the same manner as other State employees, most notably, other Trial Court employees. A majority of this court has now decided to reverse course and reinstate the judge’s pay during the period of her suspension. Because this decision smacks of preferential treatment, and thereby erodes public confidence in the judiciary, I cannot join my colleagues,” Graziano wrote.

Graziano also wrote:

“… The suspension without pay imposes on the judge no more than what would have been imposed upon the court officer indicted in this situation, as well as every other employee of the Trial Court. A few months ago, when we suspended her, we recognized that the suspension without pay would have serious financial consequences for the judge, but that we had no other option if we were to maintain public confidence in the judiciary. Nothing has changed.”

The high court’s seventh justice, David A. Lowy, recused himself.

Chief Justice Gants was appointed to the Massachusetts Supreme Judicial Court by then-Governor Deval Patrick, who also appointed him chief justice. All other six justices on the court were appointed by Governor Charlie Baker, as was Judge Joseph.

Baker issued a statement through communications director Lizzy Guyton on Tuesday, August 13, according to State House News Service:

“Governor Baker believes Judge Joseph should not hear cases until the federal case is resolved and believes that no one should obstruct federal law enforcement officials trying to do their jobs. The Baker-Polito Administration has filed and continues to support legislation to allow court officials as well as law-enforcement to work with federal immigration officials to detain dangerous individuals.”

In Joseph’s federal prosecution, a deadline for motions in U.S. District Court in Boston has been set for September 6.

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