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The Massachusetts US Attorney Andrew Lelling’s office has indicted state judge Shelley Joseph for obstruction of justice, claiming that she conspired to allow an undocumented immigrant evade an arrest by US Immigration and Customs Enforcement last year. Lelling was downright self-righteous in announcing the charges: “You don’t get to pick and choose the federal laws you follow. This prosecution is about the rule of law.”

There is something a tad ironic about anyone in this Department of Justice talking about the rule of law, let alone picking and choosing which law to follow.

What exactly did Joseph do and with what intent? She had been on the bench for only five months when the incident occurred. At that time, there was considerable controversy about how state courts would respond to ICE agents arresting undocumented immigrants in courthouses. Many lawyers and state judges were rightfully concerned about access to justice, troubled about creating impediments for undocumented immigrants to come forward as witnesses to, or victims of, crimes. US District Court Judge Indira Talwani in Boston rebuked ICE last year for arresting a Chinese national outside her courtroom, saying, “I see no reason for places of redress and justice to become places that people are afraid to show up.”

The state court guidance on immigration arrests in state courthouses — which Lelling said the judge violated — didn’t address judicial conduct at all. It was promulgated in response to the Supreme Judicial Court’s decision in 2017 barring state court officers from detaining unauthorized immigrants solely on federal civil detainers. In accordance with this decision, the Trial Court updated its rules: It authorized court officers to allow officials from the US Department of Homeland Security, to which ICE belongs, to enter holding cells to take custody of unauthorized immigrants. But the policy underscored the fact that “courthouses are public spaces that are open to all persons,” and “that all persons entering a courthouse should be treated with respect and dignity, including individuals subject to civil immigration detainers,” according to the new guidance.

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Joseph was concerned about whether the man in her courtroom was the man ICE said he was. He had an outstanding warrant for a Pennsylvania drunk driving conviction that did not match his description. The assistant district attorney was quoted as saying, “I don’t think it’s him.”

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It is not at all clear what Joseph did, let alone whether she had “general knowledge of the illegality of her conduct.” Did she expect that the federal government would come roaring in to arrest her? It never happened before, with good reason. As Massachusetts Attorney General Maura Healey said, it is a “bedrock principle” of the constitutional system that “federal prosecutors should not recklessly interfere with the operation of state courts and their administration of justice.”

The American Bar Association standards urge prosecutors to “exercise discretion not to pursue criminal charges in appropriate circumstances.” Criminal prosecution is a step you take last, not first, especially here, given the extraordinarily chilling effect this prosecution will have on judicial independence and state sovereignty. Even if Joseph just made a mistake, it was addressed within weeks. Newton Police Chief David MacDonald met with the court’s presiding judge and the supervisor of the court officers shortly after the April incident. ICE’s concerns could have been addressed in ways that respected the state court’s authority, and did less violence to core constitutional principles, such as a complaint before the Commission on Judicial Conduct. What was the purpose of this prosecution, apart from Lelling’s grandstanding for the benefit of the boss? Judges are rule followers. Is there any doubt this would not happen again?

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The US attorney insisted this was not about immigration; it was about an abuse of power. The first part of his statement was absurd. The Department of Homeland Security rarely bothers with the Newton District Court. But the second part is correct. This case is about abuse of power. His.


Nancy Gertner, a retired federal judge, is a professor at Harvard Law School.