SJC to weigh discipline in Judge Joseph ethics case

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In brief

• SJC to decide whether Judge Shelley Joseph should face discipline after years-long controversy
• Defense argues dismissal would prevent chilling judicial speech and correct public perception
• Commission on Judicial Conduct seeks public reprimand for rule violations and conduct
• Case centers on ICE-related courtroom incident and off-the-record sidebar discussion

On May 4, the Supreme Judicial Court will hear competing visions for what lasting lessons the judiciary and the public should take from the travails of District Court Judge Shelley M. Richmond Joseph over the last eight years.

Joseph’s defense team — Boston lawyers Michael B. Keating, Thomas M. Hoopes and Elizabeth N. Mulvey — says the disciplinary charge against her should be dismissed, even though such a resolution “will have little practical consequence” for Joseph herself, as she “has already traveled to hell and back over the years.”

Instead, they argue that dismissal would help prevent the chilling of judges‘ speech as they discharge their duties and might also penetrate the public’s consciousness about the degree to which a hearing officer exonerated their client after years of scandalous headlines.

The Commission on Judicial Conduct, on the other hand, is less willing to let Joseph off the hook for being unaware of a District Court recording rule and briefly entertaining the idea that she might order a defendant — sought by an Immigration and Customs Enforcement agent in the courthouse — held overnight.

The CJC agrees that the SJC needs to send a message, but the one it would prefer to convey would focus on the importance of judges knowing the rules of their courts, conducting proceedings on the record, and staying in their lanes.

Joseph’s saga began on April 2, 2018, when defendant Jose Medina-Perez came before her facing two misdemeanor drug offenses and a charge of being a fugitive from justice in connection with an outstanding and unrelated Pennsylvania criminal warrant.

An ICE official was present at Newton District Court that day, waiting to see if Medina-Perez would be released so that he could be taken into federal custody on a detainer and a warrant that ICE had issued for his detention and deportation.

New York attorney Denis J. McInerney, a former federal prosecutor who served as associate independent counsel in the Whitewater investigation into Bill and Hillary Clinton’s real estate dealings, found that Joseph violated Rule 1.2 (and, as a result, Rule 1.1) of the Code of Judicial Conduct “by creating the appearance of impropriety and bias through her statements regarding ICE” during a sidebar conference with Medina-Perez’s attorney, David Jellinek of Newton Highlands, and Assistant District Attorney Shannon Jurgens. That sidebar included a 52-second, off-the-record discussion, which violated District Court Special Rule 211.

However, Joseph “did not know about — much less authorize — the escape plan” Jellinek orchestrated with a court officer’s help, McInerney concluded.

He might have been inclined to recommend a private reprimand, “if not for the highly public nature of this matter over the past seven years,” McInerney noted.

What he hoped a public reprimand would accomplish is set the record straight, he explained.

“I think it is important that there not be any misunderstanding as to what Judge Joseph is — and is not — being reprimanded for,” he wrote.

For example, Joseph was “fully candid” in her discussions with her supervising judges, McInerney found.

But McInerney’s recommended sanction missed the mark, according to Joseph’s attorneys, who note that the judge and, by extension, the Massachusetts judiciary have continued to face scorn.

“Further, the imposition of discipline based on [Joseph’s] ‘tone and substance’ would have a chilling effect on other trial judges, creating a subjective and amorphous standard that raises the specter of ethics charges for a wide variety of everyday colloquies,” Joseph’s attorneys add.

Joseph’s team instead proposes that the case be resolved with a public statement.

That statement would explain in part that while Joseph’s “inadvertent actions do not rise to the level of a violation of the Code of Judicial Conduct, judges are cautioned that their words, even if uttered with the best of intentions, may be subject to misinterpretation and for that reason should be chosen with care.”

The statement would also recommend reading the hearing officer’s report, “which explains the complicated situation presented by the confluence of circumstances in this case.”

Contacted by Lawyers Weekly, Hoopes declines to comment.

The CJC rejected McInerney’s conclusion that Joseph did not violate the Code of Judicial Conduct by conferring with counsel off the record in violation of Special Rule 211, instead deeming that to be a violation of Rule 1.1, former Superior Court Chief Justice Judith Fabricant writes in her response on behalf of the CJC.

The CJC’s recommended public reprimand would also declare that Joseph’s unawareness of Rule 211 constituted a violation of Joseph’s duty of competence under Rule 2.5(A), which only “further contributed to the appearance of impropriety and bias.”

While McInerney found that Joseph’s ruminations about possibly detaining Medina-Perez overnight were a “mere good faith error of law,” a majority of the CJC concluded that Joseph had “created the appearance of willingness to use a state criminal charge for an illegitimate purpose: to keep the Defendant in state, rather than federal custody.”

However, a dissenting member of the CJC, Dr. David B. Krieger, agreed with McInerney, citing the fact that the ADA had not yet declared whether she intended to prosecute the most serious state charges, which would have given Joseph the legal authority to hold Medina-Perez.

The SJC should not endorse the idea that the complaint against Joseph should be dismissed based on inaccurate or misleading media reports, the CJC urges.

“Erroneous media reports are not the standard by which either the Commission or this Court addresses disciplinary matters,” Fabricant asserts.

She maintains that a reprimand is necessary to address the “disrepute” Joseph has brought upon the judiciary.

The CJC does agree with Joseph in one respect, Fabricant states.

“The Order this Court will issue in this case will send a message to all present and future judges and to the public,” she writes, noting that the message should be threefold.

“First, it is a judge’s obligation to be familiar with the rules of the court on which the judge sits,” she says. “A judge must read the rules, learn the rules, and comply with them.”

Second, Fabricant continues, “a judge must conduct all proceedings in criminal cases on the record.”

She notes that, since 2015, judges have been required to record “lobby conferences” in which potential pleas are discussed with counsel. And while this may not have been a lobby conference, “that hardly makes the rule irrelevant,” Fabricant argues.

The SJC should put to bed the notion that there are times when it is acceptable for judges to go off record, according to Fabricant.

“It is time for that message to be announced clearly, unequivocally, comprehensively, and without exceptions,” she writes.

Finally, the message should incorporate an admonition about judges involving themselves in matters outside their authority, Fabricant says.

Yes, judges can and should continue to grapple with “human problems” that come into their courtrooms, she says.

“But it is not the role of a Massachusetts judge to address matters regarding immigration enforcement, or to attempt to address a defendant’s concerns about ICE by proposing to use a criminal charge for an unauthorized purpose,” Fabricant concludes.

The CJC’s executive director, Howard V. Neff III, declined to comment.