Traditionally, one of the reasons people around the world have tried to relocate to America over other locations has been our enlightened justice system. Unlike some other countries, America has been a place where even those of modest means and lower social standing can at least get their day in court.
Vital to that system is that judges go through rigorous legal training, swear to uphold the law, and act with impartiality when making decisions in the courtroom. Should judges take on the role of advocates, the integrity of the justice system begins to crumble.
We have now reached that undesirable place, as judges apparently can refuse to uphold the law, act as advocates for one side, and face no consequences as a result.
That is the inescapable conclusion after Newton (Massachusetts) District Judge Shelley Joseph recently had her suspension dropped after being accused of helping an illegal alien evade an Immigration and Customs Enforcement (ICE) agent who was waiting to carry out a federal arrest he had every legal authority to make.
The sordid tale of Judge Joseph should be a warning sign that something is amiss in our justice system. While hearing the case of Jose Medina-Perez in 2018, Joseph asked an ICE officer to leave the courtroom and wait in the lobby outside. With the ICE officer waiting out of the courtroom, Joseph held a sidebar conference with the assistant district attorney and Medina-Perez’s attorney.
After Joseph instructed the clerk to switch off the courtroom recorder for 52 seconds—in violation of Massachusetts courtroom rules—court officer Wesley MacGregor led Medina-Perez out the courthouse’s rear exit. While the ICE officer waited patiently nearby, Medina-Perez escaped deportation with the assistance of three sworn officers of the court: the judge, the prosecutor, and the defense attorney—all of whom swore an oath to “do no falsehood, nor consent to the doing of any in court.”
The result was outrage at ICE headquarters in Washington, D.C., and in much of the law enforcement community. Joseph was hit with federal charges of conspiracy and obstruction of justice. The U.S. attorney handling the case described Joseph’s actions as “clearly criminal,” and even groups sympathetic to her case were hesitant to defend her.
“There are elements of this that have a very bad look,” said Ivan Espinoza-Madrigal of Lawyers for Civil Rights, which has filed a lawsuit to block ICE courthouse detentions. “I wouldn’t defend turning off the recorder in the courtroom.”
Despite Joseph’s apparent guilt, she is free of charges and likely to return to the bench. Why? With the inauguration of Joe Biden in 2021 came new U.S. attorneys, one of whom chose to drop the case against Joseph. With the Biden Administration unlawfully eliminating virtually all consequences for violating the Immigration and Nationality Act, the last thing it would do is prosecute a judge who launched a criminal conspiracy to hide a foreign national, clearly in violation of our immigration laws, from an ICE agent.
Whatever excuse the Biden Justice Department offers, there is a strong legal argument for Joseph’s prosecution. 8 U.S.C. Section 1324 says that “any person who, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors or shields form detection, or attempts to harbor, or shield form detection, such alien in any place, including any building or any means of transportation,” is subject to a fine and/or up to five years in prison.
A state court judge is not exempt from this law, and by the supremacy clause of the 10th Amendment has no authority to impede, prohibit or otherwise interfere with an ICE officer engaged in the lawful performance of his duties.
Red flags as to Joseph’s fitness as a judge were present at her nomination hearings in 2017. There, she spoke of her mother teaching her “to be an advocate.” That is a great philosophy for a defense attorney, but a horrible one for a judge from whom objectivity is both expected and required.
And for whom was Joseph such a passionate advocate? Medina-Perez, a native of the Dominican Republic, had been arrested in Newton on narcotics charges and had been linked to a drunken driving warrant in Pennsylvania. He had been deported twice from the United States and had been prohibited from entering the country for 20 years, according to the federal indictment. Thanks to Joseph’s advocacy, a menace to society was released into a U.S. community, rather than facing the deportation he deserves.
If Joseph’s brand of adjudication is to be the new normal, then our justice system and America itself is truly in serious trouble. Agenda-driven judges and advocacy from the bench are the last thing we need as we drift further away from rule of law that has always been one of the pillars of America’s greatness. What is even scarier is that we are retreating from our own legal standards even as we fill our country with people who began their relationship with the United States by breaking our laws.