A federal grand jury has just indicted Judge Shelley Joseph, a judge in the Newton District Court, for conspiracy to obstruct justice, obstruction of justice, and obstruction of a federal proceeding. The claim is that during an arraignment in her courtroom for Jose Medina-Perez, who was charged with being a fugitive from justice and narcotics possession, a federal immigration enforcement agent was present to take Medina-Perez into custody under a “warrant of removal,” on the grounds that he had already been found subject to removal from the United States. The judge learned that the agent was present, and she ordered him out of the courtroom and told the clerk to turn off the electronic recording system. She arranged with a court officer to take Medina-Perez out a back way so that he could leave the courthouse without being detained by the agent.
Immigration enforcement in the Massachusetts courts is a hot-button issue now. Several months ago I had some involvement in an aspect of the issue when immigrants’ rights advocates petitioned a single justice of the Supreme Judicial Court to issue a writ of protection to prevent federal immigration agents from entering courthouses to detain aliens in deportation proceedings (the petition was denied). Without really describing my involvement, I can say that I came to hold the view that the single justice lacked the power to issue such a writ, because a state court cannot enjoin a federal officer performing his duties under federal law. The immigrant advocates ought instead to have brought an action for an injunction in the federal court (they preferred not to do so, likely for strategic reasons). This seemed like a relatively easy federalism question to me, but I also thought it was right not just in a technical sense but in a larger moral and political sense. I recalled that during the Civil Rights movement segregationists sought to have the state courts in southern states enjoin federal officers from enforcing the civil rights laws, and that those efforts were unsuccessful because of the supremacy of federal law.
The policy of the Massachusetts Trial Court (of which the District Court is a part) is that the courtrooms of the Commonwealth are open to the public, that federal officers can enter courthouses in order to perform their duties, and that court officers must permit officers to enter the holding cell and take custody of aliens after they have been released from state custody if an immigration detainer or warrant is pending. On the other hand, calling the officer’s warrant a “warrant” can be deceptive. It was not issued by any court but is instead an administrative document issued by the immigration authorities. If the officer had gone to Medina-Perez’s home rather than a public place like a courthouse, the warrant would not have authorized the officer to enter the home without consent. That’s probably why officers go to courthouses to make these arrests. And Massachusetts court officers are not allowed to detain people on detainers or warrants issued by the administrative authorities in immigration matters.
Much of the reaction to the indictment has been highly critical. Our attorney general, Maura Healey, said it was a “radical and politically motivated attack on our state and the independence of our courts.” The Boston Bar Association’s statement read:
In the absence of allegations of corruption or graft, a federal indictment of a state court judge based on her judicial actions is an unprecedented overreach into state authority, and poses a serious threat to the judicial independence that we all depend upon to protect our rights under the law.
Maura Healey and the BBA are excellent. My own view on this issue, though, is a little less straightforward. We have to separate the legal question from the political, moral, and practical question. My best understanding of the law is that the immigration agent had the right to seek to detain Medina-Perez in the courtroom and that the judge probably shouldn’t have put obstacles (or perhaps “obstructions”) in his way, though I do not want to offer an opinion about whether the judge’s conduct satisfies the elements of the criminal statutes without studying them. Again, we want to think back to another era and the contexts in which states sought to thwart federal law enforcement, and not make a legal rule based just on the sympathies of the moment. But that said, I also think it’s a terrible idea to send immigration agents to courthouses in the first place to arrest people, because it discourages people from attending court and is contrary to efforts to increase access to justice. And I find it hard to see why the federal government thinks the answer is to charge the judge criminally rather than for the Massachusetts court to exercise self-governance.
In short, the law should be the beginning, not the end, of the discussion about this issue.
From a quick read of the copy of the indictment you posted, it looks to me as though the judge, and trial officer (and the ADA with a wink and a nod), felt certain that A) Massachusetts had the wrong man and 2) ICE was going to summarily deport the person in the courtroom regardless of whether or no it was the right person. If this is true I applaud the actions of the judge and of the trial court officer
A cursory google of “ICE mistaken identity” and “deportation mistaken identity,” suggests ICE has a casual grasp of the concept of ‘due process.’ The judge and officer may, in fact, have averted (yet another) perversion of justice.
We agree that the agent shouldn’t have been there.
Granted that he was there, we do not agree that the judge had the legal authority to interfere with the agent.
I fear you miss the point.
It appears that everyone except the ICE agent who shouldn’t have been there knew that said agent was about to “disappear” an innocent person. Your argument seems to be that the agent has the right to commit this violation of basic human rights.
I submit that your argument fails the Nuremberg standard and a host of similar provisions that America once championed.
The judge and officer did the right thing. If anyone deserves to be punished or otherwise incarcerated, it is the ICE officer.
This exemplifies why we cannot wait to purge the cancer metastasizing through our government. None of us are immune, and none of us are safe.
First they came for the immigrants …
With respect, I think you have missed the point. According to the indictment, the defendant actually was subject to deportation. The judge may or may not have thought that ICE “had the wrong guy.” But at least if the indictment is correct, then if the judge had that belief, she was mistaken. So this really is a point about having a government of laws not men (or women). She should not have substituted her judgment for the judgment of the federal agency empowered to enforce the immigration laws. Now, maybe ICE did “have the wrong guy,” but there is no reason to think that is so, at least on the basis of the indictment. (Anyway, as I read the indictment, it seems the judge thought that there was a question about whether the defendant really was a fugitive from justice in Pennsylvania, not about whether he really was wanted by ICE. Just sayin’).
I also reject the Nazi Germany comparison for reasons I will not explore so as to avoid having one of BMG’s periodic TedF/SomervilleTom flame wars, but I want to be on the record about that.
We agree that sending ICE agents to courthouses—federal or state—is a really bad idea because it is prejudicial to the administration of justice and it makes justice less accessible. Litigants and witnesses should not be afraid to come to court for any reason other than whatever may happen in their court case. But the state government cannot interfere in enforcement of federal law. At least that’s what Jackson told Calhoun and what Lincoln told Davis.
In a New York Times report about the episode, it was clear that both the judge and the prosecutor agreed that the person about to be arrested was not the person identified by the ICE (emphasis mine):
I am reminded of the Brandon Mayfield episode.
The standard we set at Nuremberg stands with or without comparisons to Nazi Germany.
The judge had good reason to believe that the ICE was about to remove an innocent man. The ICE has a long history of mistreatment, as does the post-911 American government.
The judge did the right thing. You are arguing that in doing the right thing, the judge broke the law. I am arguing that the judge obeyed a higher law.
I find it ironic that you, who so passionately support Israel, would take a stance so diametrically opposed to arguably the most important international consensus that resulted from the tragedy of the Holocaust.
An immoral law should not be obeyed.
Read more carefully. The charge from Pennsylvania is different from the immigration issue. The article says that the prosecutor and the defense lawyer agreed he was not the person sought in Pennsylvania. It also says that the defense lawyer—not the judge or the prosecutor—said he was not the man wanted by ICE. In any event, it seems from the indictment that he was the man wanted by ICE. And I’m sure you understand that the defendant was removable whether or not he was guilty of or even charged with any crime, because he had been previously deported.
I resolutely refuse to have a SomervilleTom/TedF flame war, except to insert an invisible facepalm emoji into this comment.
I understand that he was the man wanted by the ICE. So was Brandon Mayfield.
I’m striving to avoid a flame war, while preserving the principle that there is a limit beyond which a law should not be obeyed.
Do you accept that principle? If so, please say more about that limit and its relationship to today’s ICE.
Sure, sometimes you have to disobey the law for moral reasons.
In this case, the defendant had (if the indictment is correct) been deported in 2003 and 2007, and in 2007 he had been ordered not to re-enter the country until 2027. News reports say he was Dominican. There is no indication I have seen that he sought asylum or would have been entitled to asylum if he had sought it.
If you are saying that judges have a moral obligation to obstruct federal immigration proceedings in a case like that, well, I think that is a very extreme view. I don’t think the case is anywhere close to the line where civil disobedience is required, let alone where you would say that a sitting judge has an obligation to break the law. Not everything is Nuremberg. Not everything is the Nazis.
From the NYT piece I cited above:
The key phrase in your comment is “if the indictment is correct”. Federal enforcement agencies have an absolutely TERRIBLE record about fingerprint identification since 9/11. This fingerprint “match” is precisely how Brandon Mayfield was disappeared for YEARS. When I say the individual was “innocent”, I mean that the fingerprint match was likely to be false.
If you haven’t already, I encourage to you learn more about false-positive and false-negative rates in testing programs like this. The key question is “Given a match, what is the likelihood that the person is actually guilty.” The surprising answer is that when the event being tested for (such as having a rare disorder or being a terrorist) is rare, then almost all positive results are false.
Various players in the case are apparently arguing that:
1. The judge, officer, and prosecutor believed that the fingerprint “match” was invalid. If so, then there is no reason to believe the ICE has any proper role in the outcome
2. Federal prosecutors have no appropriate role in this case
3. The Massachusetts Supreme Court (according to Lunn v. Commonwealth) has ruled that state law enforcement officials do not have the authority to arrest anyone based on an order from the ICE. This means that it would be illegal for them to turn over the defendant to the ICE.
I do not argue that everything is Nuremberg or that everything is Nazis. I instead argue that this attempted kidnapping by the ICE was improper — the judge and official did the right thing in thwarting that attempted kidnapping.
I do think that these exchanges would be less contentious if the Democrats had investigated, prosecuted, and convicted the relevant officials in the George W. Bush administration for the official policies of kidnapping, torture, abuse, and murder ordered by that administration.
Brandon Mayfield was just one of many innocent men and women victimized by these criminals. Had prosecutions and convictions followed from such abuse, I suggest that today’s ICE would be far more cautious about “detaining” people.
If we stipulate that the fingerprint match was false, does that change your position on the prosecution?
No. The point is that it’s not up to the Massachusetts judge to make sure the federal proceeding is done right. Government of laws not men (or women). But anyway, I assume your view does not depend on the risk of getting the fingerprints wrong.
Actually, my response here is predicated on the likelihood that the fingerprint identification is mistaken.
If the prospective detainee is, in fact, the person identified in the fingerprints then I agree with you.
My point is that it is very unlikely that that is the case.
Well, it could be that the indictment alleges something that is not true, though I know of no reason to think that it does. Anyway, I think it is a very strange view that says that the Massachusetts judge has a moral duty of civil disobedience if ICE identifies a person to be detained by a fingerprint match but not by a DNA match, or whatever. Hardly “to the barricades!” material.
Please don’t put words in my mouth. Since we’re trying to avoid a flame war, I encourage you to avoid flaming me.
Depending on the test, a DNA test can be just as misleading. Specifically, when we’re talking about comparing arbitrary DNA to the contents of a DNA database, then when that database is a small or very small sample of the population then the results are almost certainly going to be false.
Here’s why.
Suppose there are a few thousand terrorists among the several hundred million residents of the US. For the sake of this discussion, let’s say 3,000 bad guys out of 300M residents. That’s 0.001 percent of the population. Even if the database contained DNA from all 300M, you’re still talking about a test that has 0.001% chance of correctly being positive.
According to the government, the CODIS/NDIS database contains tens of millions of “offender profiles”. Note that ONLY “Convicted Offender, Detainee, and Legal profiles at NDIS” are included. Just to make the numbers easier, let’s say it has 30M offender records. This is only 10% of the total population (and not randomly chosen by any means). So the likelihood of a correct match just went down by another factor of ten.
So, the odds that one of those three thousand bad guys will be correctly identified by a DNA test are now 0.0001%. That’s one in a million.
Now consider the question of a person with a DNA hit against that database. If the person is not an offender, then the individual’s DNA isn’t in the database and the hit MUST be false.
Every test has a “false positive” rate and a “false negative” rate. The first is an innocent person falsely identified as guilty. The second is a guilty person falsely cleared. Adjusting a test to minimize one causes the other to increase. Nearly all such tests explicitly avoid false negatives, and as a result have a higher false positive rate.
The DNA database has a much lower false positive rate than the fingerprint database. It also covers a smaller portion of the population.
Let me enumerate some of the “evidence” available to prosecutors:
– Lie detector (polygraph) tests
– Handwriting tests
– Phrenology
– Fingerprint comparison
– Blood tests (not DNA)
– DNA tests
I hope you’ll agree that Phrenology “evidence” (Phrenology examines patterns of bumps on the skull) is useless. Most courts now agree that lie detector and handwriting tests are not suitable as evidence. Blood tests are notoriously unspecific.
Fingerprints are increasingly suspect as a reliable means of identification. This is particularly true for the ICE (cf Brandon Mayfield).
A DNA match, while not perfect (see above) is likely to be far more reliable than a fingerprint match.
It’s hard to have this discussion without mentioning the many abuses of drug labs, especially here in MA. There is no particular reason to believe that DNA or fingerprint labs are any better.
I hope you’ll agree that a judge who rejects an identification based on phrenology is on firmer ground than one who rejects a DNA-based identification.
In this case, the judge rejected a fingerprint identification apparently based in no small part on the agreement of the prosecutor that the fingerprint match was false.
I don’t know about “to the barricades” material, but I think there is a range of test reliability and therefore a range of appropriate responses for the judge.
I think it goes both ways, the District Attorney’s for both Middlesex and Suffolk county have launched a lawsuit (completely coincidental to this matter) against ICE for interference citing witnesses and/or defendants either failing to show for fear of deportation or witnesses and/or defendants actually being arrested and taken away by ICE during a break in a trial. If that isn’t obstruction of justice, what is?
A little perspective on this is, I think, important: ICE justice is not more important than Massachusetts justice especially given the sloppiness ICE has demonstrated in the past.
A suit in a federal court is exactly the right way to handle this problem (as I suggested in the post). Unlike a Massachusetts judge, a federal judge does have the power to enjoin federal law enforcement officers in the performance of their duties.
One interesting theory I have heard is that the state has just as much right as the rest of us to keep federal officers of our property.