Massachusetts United States Attorney Andrew Lelling’s securing the federal indictment of state district court Judge Shelley Joseph and her court officer for obstruction of justice has been denounced by many – lawyers, academics, state officials, pundits.
State AG Maura Healey did not hide her opprobrium: “A radical and politically motivated attack on our state and the independence of our courts.” “Unprecedented,” asserted Ivan Espinoza-Madrigal, executive director of the Lawyers’ Committee for Civil Rights and Economic Justice. “Absolutely political,” asserted Judge Joseph’s defense lawyer Thomas M. Hoopes. Extreme, opined Eva A. Millona, executive director of the Massachusetts Immigrant and Refugee Advocacy Coalition. “A warning shot,” said Northeastern University law professor Daniel S. Medwed. “You don’t haul people into court for making mistakes,” former federal judge (and my friend and former law partner) Nancy Gertner told The Boston Globe. “Criminal charges under these circumstances are not reasonable,” concluded Gertner. All true.
But there is another important reason why Lelling is likely in error: it is highly unlikely that Judge Joseph and her officer committed a federal crime at all.
Judge Joseph and Wesley MacGregor are alleged to have helped an undocumented immigrant, who appeared before Joseph on state drug and fugitive charges last April, evade an ICE officer stationed outside her courtroom. (The officer had initially been sitting inside the courtroom itself, but Judge Joseph requested that he leave and wait in the corridor instead.) At the conclusion of the court proceeding, rather than release the defendant through the front door, and thus into the arms of the ICE officer waiting in the corridor, Joseph and MacGregor are alleged to have sent the defendant out the back door.
The federal statutes claimed to have been violated – conspiracy to obstruct justice, obstruction of justice, aiding and abetting the obstruction of a federal proceeding, and perjury by MacGregor before the grand jury – do not apply to these defendants’ alleged actions.
Judge Joseph’s conduct went to the heart of her legitimate authority under state law – maintaining the integrity of her courtroom by thwarting a federal law enforcement agent from sitting inside the courtroom and in effect stalking a person appearing before her. And if the judge’s and court officer’s actions were not federal crimes (which I believe to be so), then the court officer’s alleged lying about the matter in his grand jury appearance would not be deemed a crime either since the lie was not material to any issue of legitimate grand jury inquiry. (A lie told in testimony to a grand jury is a crime only when it is material to a matter lawfully being investigated. Court officer MacGregor’s alleged lie to the grand jury was thus legally gratuitous, irrelevant to any crime, and hence immaterial.)
There were no crimes committed here. If justice and the rule of law prevail, this grandstanding indictment will be dismissed – not because it is a grandstand, but because it misperceives the governing legal principles and seeks to interfere with the legitimate powers and duties of the state court system.
There is a recent history of Boston’s federal prosecutors’ interfering with state court jurisdiction. One of the more high-profile interferences was the federal terrorism prosecution of Boston Marathon bomber Dzhokhar Tsarnaev, who now sits on death row in a federal “super-max” prison awaiting completion of his appeal.
Massachusetts — in my view — had the superior interest in Tsarnaev’s crime; the bombing occurred, after all, at an iconic Boston event. More germane is that the Commonwealth does not have the death penalty. A crime committed by Massachusetts residents on Massachusetts soil should have been decided according to Massachusetts law. (As a result of federal intervention, many observers — myself included — consider the Tsarnaev trial to have been tilted strongly in the prosecution's favor.)
While the indictment of Judge Joseph proceeds from a very different fact pattern, one underlying similarity to the Tsarnaev case is apparent: The federal criminal justice system, predicated on a series of vague statutes (in Tsarnaev’s case, “terrorism”) that we lawyers mordantly joke enable the feds to indict a ham sandwich, was employed in such a way so as to thwart legitimate state legal and judicial interests in redressing a cold-blooded murder. State authorities have no power to do anything about these usurpations.
Judge Joseph apparently infuriated the feds by getting the jump on and out-maneuvering them. It would have been perfectly legal – although the optics might have been wanting – if the feds had surrounded the courthouse, stood on the sidewalk, and nabbed their quarry when he exited and reached public soil. But instead the feds sent a law enforcement officer into the courtroom, unwisely and unnecessarily violating the sanctity of that courtroom. He sat, a threatening figure, waiting to pounce, and then went to the corridor when the judge asked him to leave the courtroom itself, still waiting to pounce if the prisoner were released by the judge.
Some might criticize my analysis as overly protective of the state criminal courts, and overly restrictive of federal authority. After all, when there is an actual conflict between state and federal law, the supremacy clause of the federal Constitution does provide that federal law prevails. However, this case is not quite an example of a direct conflict between state and federal law. It is, rather, an example of what happens when the feds transgress upon the comity and cooperation in which state and federal courts and law enforcement agencies are supposed to engage in a complex and subtle system of shared power.
The system of co-existing state and federal laws depends upon mutual respect and restraint, neither of which is apparent in ICE’s stalking a state courtroom nor in Lelling’s legal manipulations of vague federal laws. The indictment is an example of Lelling’s petty revenge and lesson-teaching rather than a legitimate exercise of federal power.
It is hardly a foregone conclusion that Judge Joseph and her former court officer will fail to beat this rap. I would place my bet on a dismissal of this ill-considered, vengeful and over-heated indictment.
Recent postscript: The constitutional issues underlying Joseph’s case might be chewed over as well in a federal civil suit filed on Monday by two Massachusetts District Attorneys, Marian Ryan (of Middlesex County) and Rachel Rollins (of Suffolk County), seeking to enjoin ICE officers from making arrests in state courthouses. Lelling is responsible for this proliferation of litigation which could have been avoided if he had simply instructed his ICE agents to wait outside, rather than inside, state courthouses. A little common sense and courtesy can go a long way.
Harvey Silverglate is the author, most recently, of Three Felonies a Day: How the Feds Target the Innocent (2011). He is working on his next book, co-authored with Sidney Powell, titled Conviction Machine, due next year. The author thanks his research assistant, Nathan McGuire, for his help on this article.
Correction: This piece has been edited to correct factual errors that related to the indictment of Dzhokhar Tsarnaev, who was charged by federal authorities.
