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A Milwaukee judge was in federal court yesterday as a defendant. Judge Hannah Dugan pleaded not guilty to charges that she helped a person without legal status to slip out of her courtroom to evade immigration authorities. She denies any wrongdoing and wants for her case to be thrown out. It is rare for a judge to be prosecuted like this, but as NPR's Tovia Smith reports, a similar case has been unfolding in Massachusetts for years.
TOVIA SMITH, BYLINE: Judge Shelley Joseph was so new to the bench in April 2018, she brought her mother and father-in-law to Newton District Court to watch. She said nothing about her cases seemed out of the ordinary that morning, even though it would turn out to be a day that upended her career.
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THOMAS HOOPES: This prosecution is absolutely political. Shelley Joseph is absolutely innocent.
SMITH: That was Defense Attorney Thomas Hoopes and a scrum of reporters with Joseph, leaving federal court the day she was indicted on conspiracy and obstruction of justice charges, carrying up to 25 years in prison. Federal prosecutors say Joseph purposely prevented immigration officials from apprehending an undocumented immigrant facing drug charges in her court. Joseph declined to talk to NPR about what happened that day, but prosecutors say her personal views motivated her to tell U.S. Immigration and Customs Enforcement - or ICE - agents to wait in the court lobby out front so the defendant could slip out the back.
UNIDENTIFIED CLERK: That's down the stairs, and then out to the back parking lot.
SMITH: In the Newton District Courthouse, a clerk points to the secure backdoor where that defendant was allowed to exit.
So if the public can't go out that door...
UNIDENTIFIED CLERK: No.
SMITH: ...Then ICE wouldn't have been allowed to chase him down?
UNIDENTIFIED CLERK: No. Absolutely not. It's lock-up. I don't even like going down there (laughter).
SMITH: The incident immediately caught the eye of federal prosecutors.
NATHANIEL MENDELL: The prospect that a judge took it upon herself to frustrate an arrest - that was stunning to us. It was like, who does that?
SMITH: Nathaniel Mendell, then first assistant U.S. attorney, says, unlike Wisconsin prosecutors who pounced on Judge Dugan, arresting her within days, his office didn't bring charges for a year and did so only after it became clear that no state official or ethics board was going to.
MENDELL: The alleged conduct was serious enough that there had to be some accounting for that. We can't do nothing. I mean, if you had a judge walking a January 6 defendant out the back of the courtroom, I don't think people would spend a lot of time trying to figure out if that was a good idea or if that was upholding the rule of law or not.
SMITH: Judge Joseph was removed from the bench, but the case took a lucky turn for her after Joe Biden won election in 2020, and the federal criminal charges were dropped. Instead, Joseph would be investigated by Massachusetts Commission on Judicial Conduct. That meant she could return to work, but she could also lose her job again if the commission believes the charges that she engaged in willful and illegal misconduct and then lied about it.
NANCY GERTNER: The notion that this was an intentional effort to subvert the federal government is just poppycock.
SMITH: Former federal judge Nancy Gertner says Joseph may have made rookie mistakes in court that day. Perhaps most notably, turning off the court recorder, which is against court rules, and doing so while speaking to the defendant's attorney, who she is accused of conspiring with. In legal documents, Joseph maintains she knew nothing about any plan to evade ICE. She says that attorney falsely accused her so he could get an immunity deal for himself. To Gertner, the bigger picture is what she sees as a pattern of federal overreach that undermines states' authority and courts' independence and their ability to do their job.
GERTNER: I think that Joseph was the canary in the coal mine because this is a federal government that doesn't understand that there really are two authorities, and the federal government cannot intimidate or commandeer state proceedings to accomplish their will.
SMITH: ICE and Justice Department officials did not immediately respond to requests for comment. To some, the folks who need to be reined in more than the federal government are any judges who would treat people differently just based on their immigration status. Jessica Vaughan is with the Center for Immigration Studies, which favors immigration limits.
JESSICA VAUGHAN: If judges are offering escape hatches, allowing people who are in the country illegally to be treated differently, then we really are creating a double standard.
SMITH: Judge Joseph will get her day not quite in court, but before the Judicial Commission next month. It'll proceed much like a trial, and her fate will ultimately be decided by the justices of the Massachusetts Supreme Court.
Tovia Smith, NPR News.
(SOUNDBITE OF EPHILEXIA'S "SUN, PLEASE, EXPLODE") Transcript provided by NPR, Copyright NPR.
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