Newton judge and court guard will have to stand trial for letting a man wanted by ICE slip out of their courtroom

A federal appeals court today declined to toss criminal charges against Newton District Court Judge Shelley Joseph and her courtroom deputy Wesley MacGregor that stem from the way they helped a defendant wanted as part of a Trump-era ICE crackdown on immigrants slip out the back door of their courthouse while ICE agents waited in the lobby.

In its ruling the US Court of Appeals for the First Circuit said that Joseph and MacGregor declined to take up the case before it goes to trial, saying the two would not lose any of their rights by going to trial. if they feel they are wrongly convicted, they can appeal then, the court said.

The decision comes on an appeal by Joseph and MacGregorof a federal district court judge's denial of their request to dismiss their indictments on three obstruction-of-justice charges related to an incident on April 2, 2018: When Joseph learned an ICE agent was in her courtroom and planned to take custody of a criminal defendant it claimed was in the country illegally. Joseph first ordered the agent out of her courtroom, after telling him that when the hearing involving the man was over, he would leave through the lobby, then worked with MacGregor to turn off the courtroom recorder and then escort the man out a rear door of the courthouse. ICE eventually did detain the man, about two weeks later.

Joseph and MacGregor argued, in part, their indictments violated the Tenth Amendment, which gives state officials the right to not carry out certain federal laws. The appeals court, however, said the two went beyond not carrying out federal law to what sure looked like actively obstructing its enforcement, so they're going to have to make their case at a trial first.

Joseph also argued that she had "judicial immunity" from going to trial for her actions as a judge. Not quite, the appeals court ruled, concluding that even if she has such protection, she has to, again, first make the case at trial, under 1989 Supreme Court decision that limits just what appeals courts can consider before a case has come to trial - a type of appeal technically known as an "interlocutory" appeal.

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.

The court added:

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.