Judge accused of helping immigrant avoid courthouse arrest loses 1st Circuit bid to stop prosecution

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Judiciary Judge accused of helping immigrant avoid courthouse arrest loses 1st Circuit bid to stop prosecution

By Debra Cassens Weiss

March 1, 2022, 12:57 pm CST

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A federal appeals court has refused to block the prosecution of a Massachusetts judge and her courtroom deputy, who were accused of helping an immigrant evade arrest by immigration officials.

The 1st U.S. Circuit Court of Appeals at Boston ruled Monday against Judge Shelley Richmond Joseph of the Newton District Court and courtroom deputy Wesley MacGregor. The appeals court said Joseph and MacGregor were not entitled to appeal before trial.

Joseph and MacGregor were charged in April 2019 with conspiracy to obstruct justice, aiding and abetting obstruction of justice, and aiding and abetting obstruction of a federal proceeding. MacGregor was also charged with perjury.

Joseph was accused of helping an immigrant appearing before her evade arrest by U.S. Immigration and Customs Enforcement in April 2018 by concocting a ruse, the appeals court said. The immigrant would supposedly go downstairs to the lockup to retrieve property after his release following the court hearing. MacGregor then used his access card to allow the immigrant to leave through the back door.

An ICE officer had been waiting in Joseph’s courtroom, but a clerk told him to leave based on Joseph’s direction. The clerk said the immigrant would leave through the courthouse lobby if he was released after the hearing. Because of Joseph’s plan, the immigrant never passed through the lobby, prosecutors said.

The immigrant had been charged with possession of narcotics and being a fugitive from justice in Pennsylvania. A check of a national law enforcement database had indicated that the immigrant was deported twice and was banned from reentering the United States.

Joseph had argued that she was protected by the doctrine of judicial immunity. She and MacGregor also argued that their prosecution was barred by principles of federalism and due process and by 10th Amendment precedent that bars the federal government from commandeering state officials to execute federal policies.

The appeals court said federal law generally permits appeals courts to rule only after final decisions. One exception known as the collateral-order doctrine allows appeals of orders that can’t effectively be reviewed at the end of the case.

The appeals court said none of Joseph’s and MacGregor’s arguments, including the judicial immunity argument, falls within the exception that allows appellate review.

“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,” the appeals court said in an opinion by Judge William J. Kayatta Jr.

“The bottom line then is that we have no jurisdiction to review the district court’s decision denying Judge Joseph’s motion to dismiss based on her asserted common law defense of judicial immunity,” the appeals court said.

The defendants’ 10th Amendment claim “fares no better as a support for interlocutory review,” the appeals court said.

“True, Judge Joseph and Deputy MacGregor will confront the costs of trial and the very significant anxiety of being defendants in a federal prosecution. Without minimizing those adverse consequences, we must recognize that they are visited on all criminal defendants. So they cannot justify an interlocutory appeal unless we are to allow such appeals of most motions to dismiss in criminal cases.”

Several publications had coverage of the opinion, including Law.com, Law360 and Reuters. The Volokh Conspiracy had opinion highlights, while How Appealing linked to the decision.

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