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Judge Accused of Helping a Defendant Evade ICE Can't Lean on Judicial Immunity - Yet

By Laura Temme, Esq. on March 23, 2022 | Last updated on March 24, 2022

A state district court judge cannot rely on judicial immunity to avoid a trial on obstruction of justice charges, according to the First Circuit Court of Appeals.

Judge Shelly Joseph faces obstruction charges after allegedly helping a man evade immigration officials as he left her Newton, Massachusetts courthouse in 2018. She argues that she has "absolute judicial immunity," but the First Circuit held that the privilege does not apply. At least not yet.

Judge Allegedly Thwarts ICE Arrest

On April 2, 2018, Judge Joseph presided over the arraignment of a man identified as "A.S." A.S. was an undocumented immigrant who had been deported twice and was not supposed to come back to the U.S. until 2027. When a check of national law enforcement databases revealed his immigration status, Immigration and Customs Enforcement (ICE) issued an immigration detainer.

An ICE officer came to the courthouse the day of A.S's arraignment to take him into federal custody if the state decided to release him. Judge Joseph allegedly instructed her court clerk to tell the officer to leave the courtroom. The clerk informed the ICE officer that if A.S. were released, he would exit through the courthouse lobby.

But when the court released A.S. after his arraignment, he exited the courthouse through "a rear sally-port exit." The government alleges that this was part of a ruse concocted by Judge Joseph to help A.S. evade ICE. They say the courtroom recorder was turned off for "nearly a minute" while Judge Joseph spoke to counsel about this alleged plan, a violation of Massachusetts court rules (if true).

The feds charged Judge Joseph and her now-retired court clerk with obstruction and conspiracy. Both defendants moved to dismiss their charges, appealing to the First Circuit when the district court declined.

Does Judicial Immunity Preclude Criminal Charges?

Judge Joseph argues that judicial immunity shields her from prosecution because she acted in her judicial capacity when she chose to release A.S. from state custody. Similar to the doctrines of sovereign immunity and qualified immunity, judicial immunity protects judges, court clerks, and court reporters from civil liability for actions taken in the course of their jobs. In theory, providing immunity allows judges to perform their duties without fear of retaliation from litigants or attorneys who appear before them. However, it generally does not protect judicial employees from a criminal trial.

An amicus brief filed with the First Circuit by a group of retired Massachusetts judges points out that "the courtroom and courtroom premises are subject to the control of the court" under the Supreme Court's decision in Sheppard v. Maxwell. 

The amici argue that Judge Joseph's conduct was "a quintessential exercise of court control over the courtroom" that should not be prosecuted. The retired judges also contend that the judiciary's disciplinary proceedings should handle any mistakes made in exercising this control. "As retired judges, [we] can state with confidence that, if this prosecution is permitted to proceed, the practical consequences for the Massachusetts judiciary will be devastating, even if Judge Joseph is ultimately acquitted."

Read the full brief and thousands more with a free trial of Westlaw Edge.

Judicial Immunity Does Not Include Right Not to Be Tried

The First Circuit reviewed the case in ​United States v. Joseph​. Writing for the panel, Judge William Kayatta seemed to hint that the charges against Judge Joseph were overkill. "The United States Attorney for the District of Massachusetts apparently decided that the foregoing events were best addressed with a criminal indictment rather than a shot-over-the-bow visit to the courthouse."

But, the First Circuit denied Judge Joseph's request for pretrial review, noting that "judicial immunity —even assuming that it applies in this criminal case — does not provide a right not to be tried that can serve as a basis for interlocutory review."

In Midland Asphalt v. United States, the Supreme Court held that an asserted right not to stand trial must be grounded in "an explicit statutory or constitutional guarantee that trial will not occur." Concluding that Judge Joseph's arguments relied on common law and failed to clear the Midland Asphalt hurdle, the First Circuit held that it lacked jurisdiction to review the district court's decision.​

"We therefore dismiss their appeals without expressing any views on the merits of any charges or defenses in this apparently unprecedented prosecution."

For now, it looks like Judge Joseph will have to save these arguments for trial.

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