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No Pretrial Appeal for Massachusetts Judge Who Allegedly Helped an Arrestee Evade Immigration Officials


From U.S. v. Joseph, decided today by the First Circuit (Judge William Kayatta, joined by Judges Sandra Lynch and Rogeriee Thompson):

These appeals concern the pending federal prosecution of Massachusetts state district court judge Shelley Joseph and her courtroom deputy Wesley MacGregor for actions that allegedly interfered with the enforcement of federal immigration law. The defendants request that we step in now and review the ttrial court's refusal to dismiss their indictments prior to trial based on (1) Judge Joseph's claim of absolute judicial immunity and (2) both defendants' contention that their prosecution offends various provisions of the United States Constitution.

We must reject the defendants' request for pre-trial review of the denial of their motions to dismiss because their appeals are premature…

For the purposes of this appeal, the defendants say that they accept as true the government's allegations as contained in the indictment. Those allegations outline the following version of events.

On April 2, 2018, Judge Joseph presided over the arraignment of an undocumented immigrant referred to by the parties as A.S. {[which stands for 'alien subject'}. A.S. had been fingerprinted upon his arrest by police in Newton, Massachusetts. An ensuing check of a national law enforcement database indicated that he had previously been deported from the United States and was prohibited from reentering the country. Federal Immigration and Customs Enforcement (ICE) issued an immigration detainer and warrant of removal for A.S. ICE sent these documents to the Newton Police, requesting that state officials notify ICE before releasing A.S. and, if necessary, detain him for up to 48 hours to allow ICE to take custody of him. These documents were provided to the Newton District Court Clerk's Office, probation, the assistant district attorney, and defense counsel for A.S.

On April 2, a plainclothes ICE officer entered the Newton District Court to take A.S. into federal custody should he be released from state custody. The ICE officer originally sat in Judge Joseph's courtroom, but Judge Joseph later directed the clerk to tell the officer to leave. The government alleges that this directive violated state policy governing the treatment of ICE officials in Massachusetts courthouses. The clerk did as instructed, and also told the ICE officer that if released, A.S. would exit the courtroom into the courthouse lobby.

Ultimately, however, that is not what transpired. A.S. was released from state custody, but he exited the courthouse without passing through the lobby where the ICE official waited. The government alleges that Judge Joseph purposefully helped A.S. evade ICE by concocting a ruse under which A.S. would go downstairs to lockup—ostensibly to retrieve some property and speak with his counsel via an interpreter—then exit the courthouse through a rear sally-port exit. According to the government, Judge Joseph directed the clerk to go off the record while she devised this plan with counsel. At this point, the courtroom recorder was turned off for nearly a minute, allegedly in violation of Massachusetts court rules. After the recorder was turned back on and the alleged plan was set in motion, Deputy MacGregor used his access card to swipe A.S. out the back door of the courthouse.

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. The indictment charged Judge Joseph and Deputy MacGregor with conspiring to obstruct justice in violation of 18 U.S.C. § 1512(c)(2) and (k); obstructing justice in violation of 18 U.S.C. §§ 2 and 1512(c)(2); and obstructing a federal proceeding in violation of 18 U.S.C. §§ 2 and 1505. Both defendants moved to dismiss these charges. Judge Joseph argued that the doctrine of judicial immunity shields her from criminal prosecution for actions taken in her judicial capacity. Both Judge Joseph and Deputy MacGregor also argued that their prosecution is barred by principles of federalism and due process and by Tenth Amendment precedent holding that the federal government may not "commandeer" state officials to execute federal policies. Finally, both defendants argued that the government had not alleged facts sufficient to support the charges….

As a general rule, federal courts of appeal may exercise appellate jurisdiction only over final decisions. "Adherence to this rule of finality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendant upon intermediate appeal,' which the rule is designed to avoid, 'are especially inimical to the effective and fair administration of the criminal law.'"

There are, however, several exceptions to this general rule. As relevant here, those exceptions include the so-called collateral order doctrine. That doctrine permits an appeals court to review orders that, without ending the litigation below, "finally determine claims of right separate from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate jurisdiction be deferred until the whole case is adjudicated."

The collateral order doctrine is a narrow exception, which the Supreme Court "ha[s] interpreted … 'with the utmost strictness' in criminal cases." To qualify as a collateral order, the order at issue "must (1) 'conclusively determine the disputed question,' (2) 'resolve an important issue completely separate from the merits of the action,' and (3) 'be effectively unreviewable on appeal from a final judgment.'"

For our purposes, we need only train our attention on the third requirement—that the order in question cannot effectively be reviewed at the end of the case. The Supreme Court has to date identified four types of orders that satisfy this requirement and qualify as collateral orders in criminal proceedings: orders denying motions to reduce bail; orders denying motions to dismiss an indictment on double jeopardy grounds; orders denying a motion to dismiss an indictment under the Constitution's Speech or Debate Clause; and orders allowing involuntary medication to render a defendant competent to stand trial.

In each of these instances, [the] third requirement was satisfied because the protected right (freedom from excessive bail, a guarantee not to stand trial, and protection against forced medication) would have been effectively lost if not vindicated before final judgment entered. Consequently, a post-judgment appeal would come too late.

So in this case, we ask whether either defendant asserts a right that would effectively be lost by proceeding to trial….

Judge Joseph's primary argument for challenging the indictment rests on her claim that, as a state district court judge, she is immune from federal prosecution for the conduct alleged in the indictment. This immunity, she argues, protects her against not just conviction, but also against prosecution. Thus, she reasons, she will lose an important part of that protection if her immunity defense is not vindicated until after trial.

The flaw in this argument is 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. To explain why this is so, we begin with a rule of construction applicable when a criminal defendant asserts a right not to stand trial…. [S]uch a right must "rest[] upon an explicit statutory or constitutional guarantee that trial will not occur—as in the Double Jeopardy Clause ('nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb'), or the Speech or Debate Clause ('[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place')." In adopting this rule for interlocutory appeals in criminal cases, the Court recognized that, absent such a strict construction, very many legal defenses might be said to confer a right not to be tried…. "[A]ny legal rule can be said to give rise to a 'right not to be tried' if failure to observe it requires the trial court to dismiss the indictment or terminate the trial." …. So by limiting interlocutory appeals to those "rights not to be tried" that are explicitly set forth in a statute or the Constitution, the Court avoided construing an exception in a manner that swallowed the rule. In this regard, the requirement that the defense rest on an explicit statutory or constitutional grant of immunity from trial aligns with the Supreme Court's practice of "interpret[ing] the collateral order exception 'with the utmost strictness' in criminal cases." …

Judge Joseph … invokes the Supreme Court's holding in Mitchell v. Forsyth that "the denial of a substantial claim of absolute immunity is an order appealable before final judgment." But Mitchell was a civil case to which the more stringent rules applicable to criminal proceedings did not apply. Midland Asphalt, decided four years after Mitchell, governs this criminal case. So Judge Joseph cannot obtain interlocutory review of her judicial immunity defense unless she can show that her claimed right not to be tried is explicitly grounded in a statute or the Constitution. Because she concededly can point to no such grounding, and relies instead solely on the common law, she necessarily fails to satisfy Midland Asphalt's strictures.

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 defendants' claim that the Tenth Amendment to the United States Constitution bars their prosecution fares no better as a support for interlocutory review. The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In past cases, the Supreme Court has interpreted the amendment to bar the federal government from commandeering state executive and legislative officials to implement federal policies.

The defendants claim that their prosecution is a tool of "impermissible commandeering—an attempt to require state officers to help enforce federal immigration law." … [But t]he indictment does not allege that Judge Joseph and Deputy MacGregor merely declined to enforce federal immigration law. Instead, it alleges that they affirmatively interfered with federal officials' attempts to enforce federal law. So we are not convinced that the defendants' Tenth Amendment theory is "completely separate from the merits" of the charges against them. In any event, the defendants' Tenth Amendment theory does not satisfy Midland Asphalt's third prong….

At base, the defendants argue that they had a right to do what they did because federal immigration officials could not have required them to help enforce  federal immigration law. But this defense can be asserted at trial, with any loss reviewed on appeal from a final judgment.

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.

We also acknowledge the related twist on the commandeering argument emphasized by amici: that this prosecution will chill other judges from refusing to assist federal officials. But the facts alleged here—affirmative acts of deception and violations of several state policies—are largely sui generis. Moreover, every overreaching or overly broad indictment arguably chills others who see themselves as similarly situated to the defendants. So if that chilling were sufficient to justify interlocutory review, very many motions to dismiss of all sorts would be appealable. Such a result would run directly counter to Midland Asphalt's insistence that the collateral order exception be strictly interpreted in criminal cases.

For all of these reasons, the pretrial denial of the defendants' motions to dismiss based on this Tenth Amendment, anti-commandeering defense falls short of satisfying the strict requirements for interlocutory review in a criminal case….

Finally, to the extent that Judge Joseph and Deputy MacGregor merely allege that the indictment fails to state an offense, this theory is not amenable to interlocutory appeal. As the Supreme Court has explained, "an order denying a motion to dismiss an indictment for failure to state an offense … may be reviewed effectively, and, if necessary, corrected if and when a final judgment results."

NEXT: Protests Outside People's Homes (Residential Picketing) and the First Amendment

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  1. 1. Since when do state judges have any kind of immunity in federal court? On what basis?

    2. The notion that judges are immune from criminal charges, and thus above the law, is offensive to the US constitution. If there is such a doctrine it must be ignored and done away with.

    1. So, a state judge can commit any federal felony in court, and be immune to punishment?

      1. This case says much about the woke culture of the region.

    2. Judges have immunity from their actions pursuant to their profession in the course of their profession. That's not unreasonable.

      The issue here is the appeals process. In the appeals process, a superior court can overrule an inferior court, for an error the judge made in the inferior court. Strictly speaking, if the judge in the inferior court made such an error, they could be sued for it, if there wasn't judicial immunity.

      Then, that may lead to legal chaos, as every judge who is overturned is sued in their personal capacity, for legal fees.

      1. "Judges have immunity from their actions pursuant to their profession in the course of their profession. That's not unreasonable."

        Although the current immunity is a little broad. Judges shouldn't have immunity for having lawyers beaten, for example.

        Here the defendant is seeking to extend the immunity to a criminal case.

        1. And is such a case (as above, or in having a lawyer beaten, or in shooting someone in a courtroom) it likely doesn't apply. It's not pursuant to their profession in the course of their profession.

          Judicial immunity is meant to be limited to the normal decisions they make in the normal course of their business.

          1. SCOTUS says it does apply to a judge allegedly having a lawyer beaten. I should have been clearer about the reference.

            1. JFC, that was 1991, not 1891 when that ruling occurred. I figured it'd be one of those 19th century weird events. But nope, that was barely 30 years ago.

              At least there were three dissents.

              1. It was also a civil case for money damages, not a criminal prosecution for assault. I think that makes a bit of a difference.

            2. Thanks for the reference. Interesting case, here's a review on it.


              If we're realistically going to discuss it though, the judge didn't say "Beat this lawyer". Apparently he said something along the lines of "Get me a piece or body part of Waco (the lawyer) and throw his butt into my courtroom." The witnesses (and judge) apparently thought the judge was joking in terms of the violence authorized to bring the lawyer into the courtroom. The police officers took him literally and used an excessive level of force.

              1. And that's a perfectly good reason for the Judge to win at trial.
                Categorically declaring that, even if the accusations were true, the Judge has immunity is not the right way to go about solving this.

              2. "8
                Of course, a judge's direction to police officers to carry out a judicial order with excessive force is not a "function normally performed by a judge." Stump v. Sparkman, 435 U.S., at 362, 98 S.Ct., at 1108. But if only the particular act in question were to be scrutinized, then any mistake of a judge in excess of his authority would become a "nonjudicial" act, because an improper or erroneous act cannot be said to be normally performed by a judge. If judicial immunity means anything, it means that a judge "will not be deprived of immunity because the action he took was in error . . . or was in excess of his authority." Id., at 356, 98 S.Ct., at 1105. See also Forrester v. White, 484 U.S., at 227, 108 S.Ct., at 544 (a judicial act "does not become less judicial by virtue of an allegation of malice or corruption of motive"). Accordingly, as the language in Stump indicates, the relevant inquiry is the "nature" and "function" of the act, not the "act itself." Id., 435 U.S., at 362, 98 S.Ct., at 1108. In other words, we look to the particular act's relation to a general function normally performed by a judge, in this case the function of directing police officers to bring counsel in a pending case before the court."

                So, yeah, "Go shoot him and drag his dead carcass in here to encourage other lawyers to obey" is perfectly fine, according to the majority. That that's not exactly what happened here is neither here nor there as regards the princple being set out. You have been warned, unrobed varlet!

      2. You seem to be mistaken in the facts, and are mistating the principle: judges have immunity for official acts, not "professional" acts. Like the two juvenile court judges in PA that were taking kickbacks to setence juvenile offenders to a for-profit facility. They were immune for the official acts but criminally liable for accepting bribes and conspiracy, which were not official acts.

        In this criminal case the judge is being charged for non-official acts. And the evidence shows the judge was aware the acts were not in her official capacity by ordering the recorder to turn off the recorder and keep the conversation out of the official court record.

        It has nothing to do with a judge being sued or prosecuted for "judge who is overturned". The judge is being prosecuted for conspiring with an attorney and a deputy for allowing the prisoner access to an unauthorized area to release them through where they could get away from immigration officials. It was a conspiracy to aid and abet an illegal alien in evading apprehension and while it happened in a court house, it was not an official act anymore than a judge raping a court reporter in the courtroom when court wasn't in session would be.

    3. 1. Judges have long enjoyed absolute immunity for civil claims, so long as they are acting under color of jurisdiction.

      2. Right. Has never been extended to criminal actions, AFAIK. Otherwise, a judge who took a bribe could not be charged.

      Short answer: no immunity here.

      1. "Get me a piece or body part of Waco (the lawyer) and throw his butt into my courtroom."

        See above.

        Sounds like a criminal order to me, if meant seriously, as it was apparently taken. The fact of being meant seriously or not was deemed irrelevant to the grant of immunity.

  2. I do find it bizarre that a claim that no proper offense was charged is not immediately appealable. A proper charge would seem to be the point jurisdiction starts. And if there's no jurisdiction there is simply no case.

    1. I come to the same result in a different way. I think judicial immunity, where it applies, really is immunity from prosecution. If it applies, you aren't supposed to arrest the judge, aren't supposed to hold the judge, and aren't supposed to subject the judge to a trial.

      Now maybe the government is right on the merits that this conduct isn't immune. But I think it's appealable.

      1. I think that's right. How could it be that a denial of qualified immunity in civil litigation is an appealable collateral order, but denial of judicial immunity in criminal litigation is not? Maybe there's some good reason for it, but I'm not seeing it in the rather slavish opinion (from a court that is still, for some reason, a slave to Courier New).

        The line about this being sui generis is the cherry on top, though. There's little problem in dismissing appeal, says the court, because this situation is sui generis. But that's exactly the point. It's sui generis for rather obvious reasons. There could hardly be a barrage of judicial-immunity appeals against which the collateral-order doctrine is designed to protect.

        1. I think you are making the judges point for him. There is a large body of qualified immunity law, so it's much easier for a judge to follow that roadmap.

          But I think you are missing the biggest similarity between qualified immunity and judicial immunity that argues against allowing appeal at this stage: qualified immunity is only civil, not criminal. Is there any case law conferring judicial immunity for criminal acts? I can't think of any, but you can cite thousands where a judge is sued and the case is thrown out as soon as judicial immunity is invoked.

          If a cop is sued and invokes qualified immunity he's almost home free, if a prosecutor files charges alleging a crime he's up a creek looking for a paddle.

          1. Again, that there is judicial immunity for crim is demonstrated by SCOTUS' opinion in Mireles v. Waco, discussed above.

      2. Dilan where you are wrong here is that whether immunity applies here is dependent on the facts of this case. And got to have the trial first to determine the facts.

        The fact that the judges case is pretty nebulous not citing any black letter law for the judicial immunity claim, and then swinging for the fences with a Tenth Amendment Anti-commandeering claim makes it easy for the court to say let's get into all that after we decide if the court finds the facts support the government's charge.

        I'm pretty sure no court wants to get into judicial immunity while qualified immunity is under such a cloud, or plow new ground on some pretty novel constitutional theories when there is a clear path to resolve the question of guilt or innocence.

        And did you read the Supreme Court cite that post trial review is the best place to resolve these issues, unless of course there is a special rule for judges as criminal defendants on expedited interlocutory appeal too:
        "an order denying a motion to dismiss an indictment for failure to state an offense … may be reviewed effectively, and, if necessary, corrected if and when a final judgment results."

    2. On First Circuit precedent, a motion to dismiss for insufficient evidence can be decided if the government consents to having its proffered evidence judged before trial. I think that was in the "Boston Calling" case where Boston refused to give out permits unless a business hired union workers.

  3. I'd have a lot more sympathy for the two if they hadn't illegally turned off the recording system. Maybe they are right that federal officials can't tell state judges what to do, but apparently the judge was unsure enough to turn off the recorder. Of course, IANAL.

  4. She acted to violate both state and federal law. That’s not part of her job description.

  5. Think she has what is coming to her. ICE did everything by the book including getting a warrant. You don't get to be part of the law enforcement machinery and then pick and choose which ones you want to apply when you don't have that discretion.

  6. Anyone else notice the odd comment in the decision about the how US Attorney ”apparently decided that the foregoing events were best addressed with a criminal indictment rather than a shot-over- the-bow visit to the courthouse”?

    Seems like the judge was upset that his state court colleague wasn’t offered some “professional courtesy”.

    1. I saw language like that in a Second Circuit decision about dyed diesel. A business made a mistake and reported it and taxing authorities rushed into action the same as if it were fraud. But the company lost that appeal; the commentary on the overzealous prosecution was dicta.

      (Fuel for off road use is not subject to the fuel tax that funds roads. It is marked with dye to distinguish it from taxed fuel. If you have dyed fuel in your on-road vehicle fuel tank you are a tax evader.)

    2. Yeah, that jumped out at me. The US Atty decided to prosecute for blatant law-breaking by a JUDGE? Horrors! Us kritarch ought to get the benefit of bend-over-backwards prosecutorial discretion, doncha know!


  7. The closing remark on this "unprecedented" prosecution makes me think the judge might win on appeal if the new US Attorney lets the case go to trial.

    The judge won in state court, being allowed to take paid leave despite a felony indictment. The rules are different for anti-Trump obstruction of justice than for regular obstruction of justice.

    1. I have to agree. There seem to be two very different standards applied based on the side of the aisle one stands on.

  8. It seems anomalous at first glance, but it does make sense. Both absolute immunity and qualified immunity for state public officials are in some respects extensions of 11th Amendment sovereign immunity, the idea that the state is sovereign and it and its officials cannot be sued by ordinary people except under limited circumstances.

    But here there is a federal prosecution, a suit by another sovereign, not by mere citizens. 11th Amendment sovereign immunity doesn’t apply. So it seems logical that its extensions don’t apply either.

    It might have been better for the 1st Circuit to explain this distinction and provide a reasoned structural explanation why there is no absolute judicial immunity against federal prosecutions despite there being one against suits by private citizens, rather than simply say precedent doesn’t support it without venturing an explanation as to why.

    I understand the opinion limited its holding. It only found that there ws no right not to be tried, and left open the possibilitu that the judge could still assert absolute immunity as an affirmative defense. But I don’t think this distinction really makes a difference. If there is absolute immunity, it ought to include a right not to be tried. And if there is no right not to be tried, that’s because there is no absolute immunity.

    1. I understand that technically the 1st Circuit dismissed rather than denied the interlocutory appeal, holding only that absolute immunity rights could not support an appral in advance of the trial. It never held the substantively right doesn’t exist. It technically made no merits decision. It discussed the scope of interlocutory appeal rights, not the scope of absolute immunity.

      But when a substantive right has long been held to imply a right to an interlocutory appeal, as absolute immunity has, the contrapositive seems inescapable. No right to interlocutory appeal implies no substantive right on the merits.

  9. "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. "


    Sympathy much ?

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