BEFORE THE COMMISSION ON JUDICIAL CONDUCT

Complaint Number 2019-22

FORMAL CHARGES

The Commission on Judicial Conduct (“the Commission”), acting pursuant to M.G.L. c. 211C, sec.
5(14) and Commission Rule 7B(4), hereby notifies the Honorable Shelley M. Richmond Joseph
(“Judge Joseph”), Associate Justice of the District Court Department (presently assigned to the
Boston Municipal Court (“BMC”)), that it has found sufficient cause to issue Formal Charges in the
above-numbered complaint. These Formal Charges incorporate Commission Complaint Number
2019-22 and all the referenced appendices.

These charges grew out of the investigation of a complaint initiated by the Commission on May 16,
2019. As a result of that investigation, on September 13, 2023, the Commission issued a Statement of
Allegations, pursuant to M.G.L. c. 211C, sec. 5(5). Pursuant to M.G.L. c. 211C, sec. 5(6), the
Commission served the Statement of Allegations on Judge Joseph through her attorneys, Mr. Michael
B. Keating, Mr. Thomas M. Hoopes, and Ms. Elizabeth N. Mulvey, on September 15, 2023. Judge
Joseph’s response to the Statement of Allegations was filed with the Commission on November 1,
2023, by her attorneys. Judge Joseph appeared before the Commission with her attorneys on
November 14, 2023, pursuant to M.G.L. c. 211C, sec. 5(7). On January 18, 2024, the Commission
issued an Amended Statement of Allegations, pursuant to M.G.L. c. 211C, sec. 5(12). Judge Joseph
was served with the Amended Statement of Allegations through her attorneys on January 29, 2024.
Judge Joseph’s response to the Amended Statement of Allegations was filed with the Commission on
February 20, 2024, by her attorneys. On July 18, 2024, the Commission issued a Second Amended
Statement of Allegations, pursuant to M.G.L. c. 211C, sec. 5(12). Judge Joseph was served with the
Second Amended Statement of Allegations through her attorneys on July 18, 2024. Judge Joseph did
not further respond to the Second Amended Statement of Allegations.

The Commission also hereby notifies Judge Joseph that, pursuant to M.G.L. c. 211C, sec. 5(14) and
Commission Rule 7B(4), she has ten (10) days after service of these Formal Charges in which to file
a written response with the Commission. The response should set forth in concise language all
denials, affirmative defenses, and any other matters upon which Judge Joseph intends to rely at the
hearing on these charges. Upon the filing of Judge Joseph’s response or the expiration of the ten
days, a copy of the Formal Charges and any response from Judge Joseph shall be filed with the
Supreme Judicial Court. Upon this filing, the confidentiality of the Formal Charges and any response
thereto shall cease.

The Commission charges that Judge Joseph has engaged in willful judicial misconduct that brought
the judicial office into disrepute, as well as conduct prejudicial to the administration of justice and
unbecoming a judicial officer, in violation of M.G.L. c. 211C, sec. 2(5), and that she has violated the
Code of Judicial Conduct (Supreme Judicial Court Rule 3:09) by failing to comply with the law, in
violation of Rule 1.1; by failing to act, at all times, in a manner that promotes public confidence in
the independence, integrity, and/or impartiality of the judiciary, and by failing to avoid impropriety,
in violation of Rule 1.2.; by failing to uphold and apply the law, and to perform all duties of judicial
office fairly and impartially, in violation of Rule 2.2; by failing to perform her judicial duties

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competently, in violation of Rule 2.5; by failing to cooperate with other judges and court officials in
the administration of court business, in violation of Rule 2.5; and by failing to cooperate and be
candid and honest with judicial disciplinary authorities, in violation of Rule 2.16.

The Commission charges Judge Joseph for the following alleged conduct:

1. Judge Joseph received her Juris Doctor degree from New England School of Law in
1992. Judge Joseph was then admitted to the Massachusetts Bar and worked as an
Assistant Attorney General with the Office of the Attorney General for Massachusetts
(“Attorney General’s Office”) from 1993 to 2000. After leaving the Attorney General’s
Office, Judge Joseph worked for six months as an associate in a civil law firm. From
October of 2000 until her judicial appointment, she practiced with the Law Office of
Joseph & Joseph in Newton, Massachusetts. While at the Law Office of Joseph & Joseph,
Judge Joseph specialized in criminal defense, hearings before the registry of motor
vehicles, and restraining orders.

2. Judge Joseph was sworn in as a Massachusetts District Court Judge on November 2,

2017, and she began her training and orientation as a judge on November 3, 2017.

3. In accord with the practice of the Administrative Office of the District Court (“AODC”),
Judge Joseph’s training and orientation included approximately four weeks sitting with a
series of other judges to observe a variety of types of courtroom proceedings.

4. In accord with the policy of the Executive Office of the Trial Court (“EOTC”), Judge Joseph’s
training also included the assignment of a mentor judge to assist her. As of the time of the
assignment of Judge Joseph’s first mentor, her mentor had served continuously as a District
Court Judge since 2000. In May of 2018, her mentorship assignment was transferred to
another judge, who had served as a District Court judge continuously since 2005. Judge
Joseph was then assigned to sit primarily in the court where her mentor was the First Justice,
and her mentor observed her regularly and provided close supervision and training. That
assignment continued until February of 2019, when she was transferred to a different region
and assigned a different mentor.

5. The AODC’s initial orientation program for new judges, and the training materials
provided to Judge Joseph during that initial training period, did not specifically address
the topic of recording of courtroom proceedings. Judge Joseph did not undertake on her
own to familiarize herself with rules applicable to the District Court. At the time of the
events that are the subject of this complaint, she was unaware of District Court Special
Rule 211, which requires that all District Court proceedings be recorded.

6. The AODC’s training program for new judges also did not specifically provide judges with
guidance regarding how to handle ICE detainers, the presence of ICE agents in courthouses,
or responding to circumstances in which ICE agents might seek to take custody of a person in
a courthouse.

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7. In response to the Court’s decision in Lunn v. Commonwealth, 477 Mass. 517 (2017), on
November 10, 2017, the Chief Justice of the Trial Court and the Court Administrator
issued EOTC Transmittal 17-13, entitled “Policy and Procedures Regarding Interactions
with the Department of Homeland Security” (the “Lunn policy”). On that same date,
EOTC sent Transmittal 17-13 by email to all Trial Court judges, clerks, department
heads, and other management personnel, to provide guidance to all Trial Court personnel
(a copy of the Lunn policy is attached as Appendix A).

8. The Lunn policy provides the following specific guidance for circumstances in which an
Immigration and Customs Enforcement (“ICE”) agent seeks to take custody of a person
in a courthouse:

If, during the processing of an individual subject to release out of the courthouse,
a DHS official is present in the courthouse and seeks admission into the
courthouse's holding cell area in order to take custody of the individual pursuant
to an immigration detainer or warrant, court officers shall permit the DHS
official(s) to enter the holding cell area in order to take custody of the individual
once Trial Court security personnel have finished processing that individual out of
the court security personnel's custody, if a security department supervisor
determines that the DHS official would otherwise take custody of the individual
inside or immediately outside of the courthouse.

9. When the Lunn policy was emailed to all Trial Court judges on November 10, 2017,
Judge Joseph was at an early stage of her orientation as a judge. She received access to
her official judicial email account no later than November 24, 2017. The Lunn policy
may or may not have been sent to her email account, depending on when her email
address was added to the Trial Court’s distribution list for judges.

10. The District Court held an educational conference for all District Court judges on December
13, 2017, but Judge Joseph was unable to attend this conference because of a death in her
family. Among the materials provided to judges at the conference was an “Updated
Immigration Benchcard” (attached as Appendix B). This Benchcard instructed all District
Court judges to refer to the Lunn policy “[f]or guidance on the manner in which trial court
employees, and in particular, court officers, shall respond to requests from the Department of
Homeland Security (DHS) to provide information about, and take custody of, individuals
subject to civil immigration detainers, and how Trial Court staff should respond when
officials from DHS enter a Massachusetts courthouse with the intent of taking custody of an
individual subject to a civil immigration detainer . . . .” Judge Joseph does not recall whether
she received the materials that were distributed at the conference. Judge Joseph did not
undertake on her own to ensure that she received materials distributed at the conference.

11. On January 16, 2018, the Chief Justice of the District Court issued District Court
Transmittal No. 1222 (attached as Appendix C). AODC emailed the transmittal to the
official judicial email address of all District Court judges. That document described the
updated Benchcard that had been distributed to judges at the December 13, 2017,
conference, and referred to an attached electronic copy of the Benchcard. District Court
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 Transmittal No. 1222 also referred to the Lunn policy as a source of “additional
guidance.” Judge Joseph received transmittal No. 1222 by email on or about the date it
was issued.

12. On April 2, 2018, Judge Joseph was assigned to preside over a courtroom in the Newton
Division of the District Court department (“Newton District Court”). Judge Joseph was
the only judge sitting in the Newton District Court on April 2, 2018. She had sat in that
Court previously and had done so as the only judge in the courthouse on dates when no
matters were scheduled. This was the first time she had sat there alone with a list of
scheduled matters.

13. On April 2, 2018, the matters that Judge Joseph presided over included criminal charges
against a man using the name, Jose Medina-Perez (“Defendant”).1 A copy of a transcript
of a series of hearings in the Commonwealth v. Medina-Perez matter on April 2, 2018, is
attached as Appendix D. This transcript does not include a brief third call of the case that
occurred before the lunch recess, and it does not include certain non-substantive
comments that Judge Joseph recalls. In all other respects this transcript accurately reflects
the content of the recorded hearings conducted in the case in the morning and afternoon.

14. At approximately 10:34 a.m., on April 2, 2018, the Commonwealth v. Medina-Perez

matter came before Judge Joseph for arraignment on a charge of being a fugitive from
justice based on a warrant issued in a case in Pennsylvania, and two misdemeanor counts
of controlled substance violations. The court provided a Spanish language interpreter (the
“interpreter”) to assist the defendant in understanding the courtroom proceedings.

15. When the Commonwealth v. Medina-Perez matter was first called at approximately 10:34
a.m., Judge Joseph appointed the bar advocate (“bar advocate”) assigned to Newton District
Court on that day to represent the defendant. The prosecutor handling the matter advised
Judge Joseph that she was not seeking bail on the controlled substance charges but would
request that the defendant be held without bail on the Pennsylvania warrant. The case was
then recessed and put on for a second call.

16. After the first call but before the final afternoon call of the Commonwealth v. Medina-
Perez matter, Judge Joseph learned that ICE agents were present at the Newton District
Court with a civil immigration detainer that authorized the ICE agents to take custody of
the defendant if he were released from Massachusetts state custody. The detainer stated
that ICE had probable cause to believe that the defendant was a deportable alien based on
a final order of removal previously issued against him.2

1
The Newton District Court docket for Commonwealth v. Medina-Perez (attached as Appendix F)
identifies the defendant as Jose Oscar Manuel Medina-Perez. This document will refer to him as Mr.
Medina-Perez or, in the context of the District Court proceeding, as “the defendant.”
2
The ICE agents also had a warrant of removal for the defendant, stating that the defendant was
subject to removal from the United States based upon a final order by a designated official, and that
any Immigration Officer with the United States Department of Homeland Security was commanded
to take custody of the defendant for removal from the United States.
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17. While the Commonwealth v. Medina-Perez matter was recessed, the First Assistant Clerk,
who was serving as the session clerk, brought to Judge Joseph’s attention that an ICE
agent was present in the courtroom, and that the Newton District Court had a policy that
ICE agents be directed to wait outside the courtroom. After contacting AODC for
information about any applicable Trial Court policy, and learning the content of the Lunn
policy, Judge Joseph asked the session clerk to give direction to the ICE agent in accord
with the Newton District Court policy. The clerk did so, and the ICE agent waited in the
public lobby on the first floor or outside the building.

18. During the recess, persons associated with the defendant in the Commonwealth v. Medina-
Perez matter retained private counsel for him, and that attorney entered an appearance.3

19. The final hearing before Judge Joseph in the Commonwealth v. Medina-Perez matter began at
approximately 2:48 p.m. At some point before that hearing, the defense attorney had
formulated a plan with the court officer that the defense attorney intended to permit Mr.
Medina-Perez to avoid the ICE agents. As part of that plan, the court officer indicated that he
could release Mr. Medina-Perez through the sally-port door in the lockup if the defense
attorney could arrange for the defendant to return to the lockup after his court proceedings.
During this final call of the matter, the defendant, the prosecutor, and the newly-retained
defense attorney appeared before Judge Joseph in the courtroom. Defense counsel asked for a
sidebar conference. Judge Joseph granted that request and conducted a recorded sidebar
conference with the defendant’s attorney and the prosecutor. An interpreter was present for the
defendant and had some access to the sidebar conference. In the course of this conference, the
prosecutor advised that she no longer believed that the defendant was the same person subject
to the Pennsylvania warrant, and thus that she would move to dismiss the fugitive from justice
charge and would not seek bail on the remaining Massachusetts controlled substances
charges.

20. The sidebar conference included discussion of whether the defendant was the person who
was the subject of the ICE detainer, and the presence of the ICE agents who, at that time,
were still waiting in the front area of the courthouse to take the defendant into custody if
he were released from state custody. Defense counsel told Judge Joseph, “ICE is going to
pick him up if he walks out the front door. But I think the best thing for us to do is to
clear the fugitive issue, release him on a personal, . . . and hope that we can avoid ICE.”

3
This defense attorney graduated from an ABA-accredited law school in 2000 and has been a
member of the Massachusetts Bar since 2001. At the time of the April 2, 2018 incident, defense
counsel had been practicing exclusively criminal defense in his own private practice for
approximately nine to ten years. That private criminal defense work included approximately nine to
ten years of regular appearances representing criminal defendants in the Newton District Court. Prior
to his private practice, defense counsel worked as a criminal defense attorney for the Massachusetts
Committee for Public Counsel Services, where he was a Superior Court certified attorney for
approximately five years. Defense counsel is also the editor of a published practice guide to
Massachusetts criminal law.

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21. After hearing this information, Judge Joseph said, “the other alternative is if you need
more time to figure this out – hold until tomorrow.” Defense counsel explained that “if
he’s bailed out . . . ICE will pick him up.” Judge Joseph responded, “ICE is gonna get
him?” . . . What if we detain him?” The quality of the recording is insufficient to allow a
listener to evaluate the tone of these comments and questions.

22. At that point, defense counsel asked, “Are we on the record?” Judge Joseph then said to the
session clerk, “can we go off the record for a moment?” After she repeated that request, the
session clerk turned off the courtroom recording system. Judge Joseph did not ask defense
counsel for any explanation of his request to confer off the record and did not consider any
reason or justification for doing so. In violation of District Court Special Rule 211, Judge
Joseph conducted an unrecorded conference with counsel regarding the case, lasting
approximately 52 seconds. The unrecorded conference occurred at sidebar, with the
prosecutor and defense counsel present, outside the hearing of others present in the
courtroom.

23. Judge Joseph’s statements on the record, particularly her questions “ICE is gonna
get him?” and “What if we detain him?” would give a reasonable observer the
impression that she sought to assist defense counsel in identifying a means for the
defendant to avoid ICE. Judge Joseph’s willingness to conduct an unrecorded
sidebar conversation with counsel, in violation of District Court Special Rule 211,
added to the basis for that impression.

24. During the unrecorded conference, defense counsel asked Judge Joseph to allow the
defendant to return downstairs to the lockup area after he was released from state custody,
and to allow defense counsel to accompany him there, along with the interpreter.

25. Defense counsel informed Judge Joseph that, if she permitted him to return to the
downstairs lockup area with the defendant and the interpreter, he thought his client could
be released through the rear sally-port exit of the courthouse. Knowing that the ICE
agents were, at her direction, still waiting for the defendant in a different location in the
front area of the courthouse, Judge Joseph allowed defense counsel’s request.

26. Judge Joseph responded to these statements from defense counsel in a manner that, in the
context of her above-described conduct, caused defense counsel to reasonably believe
that Judge Joseph had granted him permission to try to help the defendant avoid being
taken into custody by ICE, including by granting defense counsel’s request to return to
the lockup area with the defendant and the interpreter, after the defendant had been
released from state custody.

27. From her discussion with defense counsel during the unrecorded sidebar conference,
Judge Joseph understood that defense counsel intended to continue to help the defendant
avoid being taken into custody by ICE that day.

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28. When the courtroom recorder was turned on again at approximately 2:51 p.m., the
hearing in the Commonwealth v. Medina-Perez matter continued in open court. The
prosecutor indicated that her intention was to dismiss the fugitive from justice charge,
and not to seek bail on the Massachusetts charges.

29. The defendant’s attorney then stated, “I would ask that he, uh - I believe he has some
property downstairs. I’d like to speak with him downstairs with the interpreter if I may.”
Judge Joseph responded, “That’s fine. Of course.” After the defendant was arraigned and
advised of certain statutory rights, the session clerk reminded the participants of the
presence of ICE representatives “to visit the lockup.” Judge Joseph responded, “That’s
fine. I’m not gonna allow them to come in here. But he’s been released on this.”

30. After the judge set a date for pretrial conference, a court officer asked whether the
defendant had been released. The session clerk confirmed that the defendant had been
ordered released. Judge Joseph then reiterated that the defendant’s attorney had “asked if
the interpreter can accompany him downstairs, um, to further interview him – and I’ve
allowed that to happen.”

The proceeding in the Commonwealth v. Medina-Perez matter then concluded at

approximately 2:54 p.m.

31. Judge Joseph’s statements after the record resumed, referencing her decision to allow
defendant and defense counsel to go down to the lockup area after defendant’s release
from custody, and referencing the ICE officer’s exclusion from the courtroom, further
added to defense counsel’s reasonable impression that Judge Joseph had granted
permission for defense counsel to pursue efforts to have the defendant exit the courthouse
through a rear exit in an effort to avoid ICE.

32. Judge Joseph’s decision to allow defendant and his counsel to go downstairs to the lockup
area after the defendant had been released from state custody assisted defense counsel’s
plan for the defendant to exit the courthouse through the rear sally-port exit and avoid
being taken into custody by the ICE agents who, at Judge Joseph’s direction and pursuant
to the Newton District Court policy, were still waiting in the front area of the courthouse.

33. Immediately following the above-described proceeding, the same court officer who had
inquired about the defendant’s custody status escorted the defendant to the downstairs
lockup area of the Newton District Court, accompanied by the defendant’s attorney and
the interpreter.

34. Once inside the lockup area, the court officer used his security access card to open the
rear sally-port exit of the courthouse and released the defendant out of the courthouse
through the sally-port exit at approximately 3:01 p.m., on April 2, 2018.

35. The ICE agent, who, at the direction of Judge Joseph and in accord with practice in the
Newton District Court, had been instructed to wait outside the courtroom in the front area of
the courthouse, was unaware of the defendant’s release out the rear sally-port exit. Because

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 the defendant had been released through the sally-port exit, the defendant succeeded in
avoiding being taken into custody by the ICE agents waiting for him pursuant to the detainer
and Warrant of Removal.

36. On April 4, 2018, the First Justice of the Newton District Court met with Judge Joseph at
the Newton District Court and asked Judge Joseph about events in the Commonwealth v.
Medina-Perez matter on April 2, 2018.

Judge Joseph told the First Justice that she was not sure what to do about making sure
that ICE could take custody of the defendant and that there was some confusion about the
Pennsylvania fugitive charge. Judge Joseph advised the First Justice that the defendant
was released on personal recognizance. Judge Joseph did not advise the First Justice that
she had conducted part of the hearing off the record, nor did the First Justice inquire on
the point, having received no information to indicate that any part of the proceeding had
occurred off the record.

Judge Joseph was less than fully candid with the First Justice in this conversation, in
failing to advise the First Justice that she had conducted part of the hearing off the record,
and that during the off-the-record conversation she had granted defense counsel’s request
to return to the lock-up area with the defendant after his release from custody, and that
defense counsel had said that he thought he could have his client released through the
sally-port exit if he could return to the lock-up area

37. On a date within the next month, the Regional Administrative Justice (“RAJ”) met with
Judge Joseph at the Lowell District Court. The RAJ asked Judge Joseph about the off-the-
record portion of the hearing in the Commonwealth v. Medina-Perez matter.

The RAJ advised Judge Joseph that it was the RAJ’s understanding that a portion of the
April 2, 2018 hearing in the Medina-Perez matter had not been recorded. When the RAJ
asked Judge Joseph what happened, Judge Joseph was less than fully candid, failing to
answer that she had directed her session clerk to turn off the courtroom recorder.

Instead, Judge Joseph responded by implying that her unfamiliarity with the courtroom
recording system may have caused a portion of the hearing not to be recorded, asking
questions about how the courtroom recording equipment in the Newton District Court
worked, referencing an experience in another courthouse where she had disconnected the
recording system after learning that it was amplifying a sidebar conversation. She
expressed concern about not wanting people in the audience to hear the discussion at
sidebar relating to the defendant’s identity.

Judge Joseph was less than fully candid in this conversation with the RAJ, in failing to
explicitly acknowledge that she had conducted part of the hearing off the record, and in
failing to advise the RAJ that during the off-the record conversation she had granted
defense counsel’s request to return to the lock-up area with the defendant after his release
from custody, and that defense counsel had said that he thought he could have his client
released through the sally-port exit if he could return to the lock-up area.

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 The RAJ informed Judge Joseph about District Court Special Rule 211 and emphasized
to her that all courtroom proceedings must be recorded.

38. The Chief Justice of the District Court and the RAJ met with Judge Joseph in the Chief
Justice’s office on May 8, 2018. During that meeting, the Chief Justice expressed to
Judge Joseph his concerns about events in the Commonwealth v. Medina-Perez matter on
April 2, 2018.

The Chief Justice expressed particular concern that the recording had been shut off, and
that a defendant had been released from the back of the courthouse. Judge Joseph
responded by acknowledging that she had directed the session clerk to turn off the
courtroom recording, and by apologizing for having done so.

When the Chief Justice asked Judge Joseph why she had directed that the courtroom
recorder be shut off, Judge Joseph responded by explaining that she thought that the
defendant’s attorney wanted to speak to her off the record about the defendant’s identity
and about his charge from Pennsylvania. Judge Joseph indicated that the off-the-record
discussion pertained to the defendant’s identity. Judge Joseph did not disclose that the
off-the-record discussion had included defense counsel’s request that the defendant be
allowed to return downstairs, accompanied by defense counsel and the interpreter, and his
statement to the effect that he believed he could have the defendant released through the
rear of the courthouse.

Judge Joseph’s responses to the Chief Justice’s questions regarding the reasons for and
the content of the off-the-record conversation were less than fully candid and were
misleading.

Judge Joseph was less than fully candid with the Chief Justice in this conversation when
she told the Chief Justice that the non-recorded conversation at sidebar was merely her
and the defense counsel still talking about the out of state warrant for Mr. Medina-Perez
from Pennsylvania.

Judge Joseph was also less than fully candid with the Chief Justice when, in response to
a series of questions from the Chief Justice about whether she had anything to do with the
defendant’s release from the courthouse on April 2, 2018, or any responsibility for it, she
strongly denied that she had anything to do with it, or responsibility for it, and did not tell
him that, at the conclusion of the Medina-Perez hearing that day, she released the
defendant from state custody but then allowed defense counsel, the interpreter, and the
defendant to all return to the lockup area, which allowed the defendant to then leave the
courthouse through the sallyport and avoid being taken into custody by ICE.

The Chief Justice asked Judge Joseph if she had anything to do with the defendant’s release
through a non-public exit of the Newton District Court on April 2, 2018. Judge Joseph denied
having any role in or awareness of that result. This denial was false.

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39. After investigation, a federal grand jury returned indictments against Judge Joseph and a
court officer based on the events of April 2, 2018. On September 22, 2022, Judge Joseph
entered into an agreement with the United States Attorney, in which she stipulated to
certain facts regarding the events of April 2, 2018, and agreed to refer herself to the
Commission on Judicial Conduct. Based on that agreement, the United States Attorney
moved to dismiss the charges against her, and the United States District Court so ordered
on September 23, 2022. (A copy of the motion to dismiss, with attached agreement
between Judge Joseph and the United States Attorney and agreement of facts, is attached
hereto as Appendix E).

40. The events in connection with the Medina-Perez case on April 2, 2018, including the
unrecorded conference, the defendant’s release through the non-public sallyport exit, and
subsequent federal criminal charges against Judge Joseph and a court officer, have
received substantial public attention through news media and other sources. The public
attention to this incident has had the effect of undermining public confidence in the
judiciary.

41. In the course of the Commission’s investigation of this matter, Special Counsel conducted
an interview of Judge Joseph, under oath, recorded by a court reporter, with Judge
Joseph’s counsel present.

In the course of that interview, when asked about events in the Medina-Perez case on April 2,
2018, Judge Joseph denied that defense counsel told her he thought that the defendant could
be released out the back door and/or avoid being taken into custody by ICE if he could speak
to the defendant downstairs.

She further denied that she had said or done anything to facilitate the defendant’s avoidance
of ICE, or that she had said or done anything that day that could have led to defense counsel
having a reasonable belief that she had assented to his plan to help the defendant avoid being
taken into custody by ICE on that day. These denials were false.

Through the above-described conduct, the Commission charges that, Judge Joseph has violated
the Code of Judicial Conduct (Supreme Judicial Court Rule 3:09) by failing to comply with the
law, in violation of Rule 1.1; by failing to act, at all times, in a manner that promotes public
confidence in the independence, integrity, and/or impartiality of the judiciary, and by failing to
avoid impropriety, in violation of Rule 1.2.; by failing to uphold and apply the law, and to
perform all duties of judicial office fairly and impartially, in violation of Rule 2.2; by failing to
perform her judicial duties competently, in violation of Rule 2.5; by failing to cooperate with
other judges and court officials in the administration of court business, in violation of Rule 2.5;
and by failing to cooperate and be candid and honest with judicial disciplinary authorities, in
violation of Rule 2.16.

The Commission also charges that the conduct set forth above constitutes willful judicial
misconduct, conduct prejudicial to the administration of justice and unbecoming a judicial
officer, and that brings the judicial office into disrepute, in violation of M.G.L. c. 211C.

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For the Commission on Judicial Conduct,

______________________________
Hon. Katherine A. Field
Chair

Date: November 19, 2024

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COMPLAINT NUMBER
2019-22
APPENDIX A
CJC 0467
CJC 0468
CJC 0469
CJC 0470
APPENDIX B
 INFORMATION ON IMMIGRATION MATTERS

Alien Warnings Under G. L. c. 278, § 29D and Mass R. Crim. P. 12(c)(3)(A)(iii) and 12(d)(3)(A)(iii)

The following warning must be given during every plea colloquy at which the defendant is proffering a plea of
guilty or nolo contendere, or an admission to sufficient facts:
“If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your
plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of
deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of
the United States, and if the offense to which you are pleading guilty, nolo contendere, or admitting to
sufficient facts is under federal law one that presumptively mandates removal from the United States and
federal officials decide to seek removal, it is practically inevitable that this conviction would result in
deportation, exclusion from admission, or denial of naturalization under the laws of the United States.”
The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United
States. G.L. c. 278, § 29D.

Motions for a New Trial

G.L. c. 278, § 29D

If the § 29D warning is not given and the defendant later shows that the plea may have or has had one of the
enumerated consequences, the court must vacate the conviction and allow the defendant to withdraw the plea
even if he or she has already been deported from the United States. The defendant has burden of proving one or
more consequences (deportation, exclusion, denial of naturalization) may occur. Comm. v. Berthold, 441 Mass.
183 (2004); see Comm. v. Grannum, 457 Mass. 128 (2010) (deportation consequence established by showing an
ICE detainer, Notice to Appear, Order of Removal, “express written policy” of federal government, etc., not just a
statutory cite.); Comm. v. Valdez, 475 Mass. 178 (2016) (exclusion consequence established by showing (1) a
bona fide desire to leave the country and reenter, and (2) a substantial risk that conviction would trigger exclusion
from admission.). The court should presume warning was not given if absent from the record. G.L. c. 278,
§ 29D.
Ineffective Assistance of Counsel
A defense attorney’s failure to advise the defendant of the immigration consequences prior to pleading or
proceeding to trial violates the 6th amendment and art. 12 rights to effective assistance of counsel. Padilla v.
Kentucky, 559 U.S. 356 (2010); Comm. v. Marinho, 464 Mass. 115 (2013); Comm. v. DeJesus, 468 Mass. 174
(2014). The defendant’s motion must show both deficient performance and prejudice:
Deficient Performance Prejudice
The defendant must show deficient advice by counsel The defendant must show that but for counsel’s
regarding the consequences of criminal dispositions deficient performance, the proceedings would have
• Affirmative mis-advice been different.
• Failure to give specific, accurate advice in a • The defendant would have rejected plea and gone
manner client can understand when consequences to trial, and
are clear based on statutes and case law (general • It would have been rational to reject plea because:
warning insufficient). See Comm. v. DeJesus, 468 o There was a substantial defense that would have
Mass. 174 (2014) been pursued at trial;
Shown by affidavits indicating that counsel failed to o There was a reasonable possibility that a
inquire about the defendant’s immigration status, mis- different plea bargain could have been
advised the defendant regarding the immigration negotiated; or
consequences faced by the defendant, or otherwise o Special circumstances show that the defendant
failed to advise the defendant appropriately. placed particular emphasis on immigration
consequences.
Comm. v. Clarke, 460 Mass. 30 (2011)
Generally, where a substantial issue is raised and is supported by a substantial evidentiary showing, the judge
should hold an evidentiary hearing; for instance, where the defendant and the Commonwealth present conflicting
affidavits or where the affidavits are missing key elements.
Comm. v. Gordon, 82 Mass. App. Ct. 389, 394-95 (2012).
AODC Rev. 12/17
125
 Habing Defendants in ICE Custody

Neither federal immigration nor state transportation officers are required by law to transport a state court
defendant in federal immigration detention to state court but it is sometimes possible to do if the defendant is
being held in an ICE facility in New England. Two habes are necessary:

Habe #1: Should be addressed to ICE-ERO, 1000 District Avenue, Burlington, MA 01803.* The clerk should
call ICE at 781-359-7601* to verify the correct method of delivery. The habe should request that ICE notify
the sheriff for the county in which the criminal case is being heard to arrange transportation to court. ICE will
either transport the defendant to the Suffolk County House of Correction at South Bay or will make the
detainee available for pick up from the nearest ICE facility (likely if the ICE facility and the court are in the
same county). ICE may request confirmation from the clerk or DA’s office. The sheriff then has the
responsibility to transport the defendant to and from court.

Habe #2: Should be addressed to the sheriff of the county in which the case is being heard, asking that the
sheriff transport the defendant from ICE custody at South Bay (or the ICE facility where the defendant is
being held) to court and to coordinate with ICE by contacting ICE at 781-359-7601.*

* Contact information current as of 12/17.

Miscellaneous Notes

• Bail: It is permissible to inquire into a defendant’s immigration status when making bail
determinations if necessary to establish or confirm identity and/or to gather information related to
other recognized bail factors.

• Detainers: It is not permissible to hold an individual in custody solely on the basis of a Federal civil
immigration detainer beyond the time that the individual would otherwise be entitled to be released
from State custody. Lunn v. Commonwealth, 477 Mass. 517, 537 (2017). Civil immigration
detainers should be distinguished from criminal detainers and criminal arrest warrants, which may
provide Massachusetts court officer with a basis to arrest and detain an individual. Id. at 13,
24 n. 22.

For guidance on the manner in which trial court employees, and in particular, court officers, shall
respond to requests from the Department of Homeland Security (DHS) to provide information about,
and take custody of, individuals subject to civil immigration detainers, and how Trial Court staff
should respond when officials from DHS enter a Massachusetts courthouse with the intent of taking
custody of an individual subject to a civil immigration detainer, see Executive Office Transmittal 17-
13, dated November 10, 2017, which contains the Trial Court’s Policy and Procedure Regarding
Courthouse Interactions with the Department of Homeland Security.

DISCLAIMER: Federal immigration law and its intersection with State law is extremely complex. The
information on this card is by no means comprehensive. Users are advised not to rely on this card as a
substitute for a thorough analysis of the law and the facts applicable to each individual case.

AODC Rev. 12/17

126
APPENDIX C
 Trial Court of the Commonwealth
District Court Department TRANSMITTAL NO. 1222

Last Transmittal No. to:

Administrative Office First Justices 1221
Edward W. Brooke Courthouse Other Judges 1221
24 New Chardon Street, 1st Floor Clerk-Magistrates 1221
Boston, MA 02114-4703
Assistant Clerk-Magistrates 1221
Paul C. Dawley CPOs 1221
Chief Justice

MEMORANDUM
TO: District Court Judges, Clerk-Magistrates, Assistant Clerk-Magistrates, and Chief Probation
Officers
FROM: Hon. Paul C. Dawley, Chief Justice
DATE: January 16, 2018
SUBJECT: 1. First Justice Appointments
2. Acting First Justice Appointment
3. Acting Clerk Magistrate Appointments
4. March 2018 Regional Education Meeting Dates
5. District Court Conversion to Full Criminal Docketing
6. Updated Immigration Benchcard
7. 90 Day Guide Updates
8. Triple I’s in 209A and 258E Cases
9. Judiciary Policy Regarding Display of Commemorative or Expressive Works in
Massachusetts Courthouses
10. Courthouse Protocols for Fentanyl and Carfentanil

1. First Justice Appointments. I am pleased to announce the appointment of Hon. Paul H.

Smyth as First Justice of Pittsfield District Court, effective January 16, 2018. I am confident
Judge Smyth will be an outstanding leader of the court and I thank him for taking on this extra
responsibility. I would like to thank Hon. Jacklyn Connly for serving as Acting First Justice
since June 2017.

Effective upon the retirement of Hon. Albert S. Conlon, I am pleased to appoint Hon.
Matthew J. Nestor as First Justice of the Lynn District Court effective January 16, 2018. I thank
Judge Conlon for his dedication to the Lynn District Court and for his tremendous contributions
to the District Court for so many years. I am grateful to Judge Nestor for assuming these
responsibilities and I am confident he will continue the excellent work of Judge Conlon.

2. Acting First Justice Appointment. Effective January 16, 2018, I have appointed Hon.
Matthew J. Machera as Acting First Justice of the Chelsea District Court. I thank Judge Machera
for taking on these additional responsibilities. I anticipate that within the next 4-6 weeks the
announcement regarding the vacancy for the Chelsea District Court First Justice position will be
posted.
MEMORANDUM
January 16, 2018
Page 2

3. Acting Clerk Magistrate Appointments. Hingham District Court Clerk Magistrate

Joseph A. Ligotti retired effective January 1, 2018. I thank him for his many years of dedicated
service to the Trial Court and wish him the best in retirement. Effective upon his retirement, I
have appointed First Assistant Clerk Magistrate Andrew P. Quigley to temporarily serve as
Acting Clerk Magistrate in Hingham. I thank First Assistant Clerk Magistrate Quigley for
agreeing to assume these responsibilities.

In addition, Dudley District Court Clerk Magistrate Kenneth F. Candito has notified me
of his intention to retire effective January 16, 2018. I thank him for his many years of dedicated
and excellent service to the Trial Court and wish him the best in retirement.
As you are aware, Clerk Magistrate Candito currently serves as Acting Clerk Magistrate of
Westborough District Court. Effective December 29, 2017, I appointed Fitchburg Clerk
Magistrate Patrick J. Malone to temporarily serve as Acting Clerk Magistrate in the
Westborough District Court. I thank Clerk Magistrate Malone for agreeing to accept this
appointment.

Effective December 29, 2017, I also appointed First Assistant Clerk Magistrate Brian M.
D’Andrea to temporarily serve as Acting Clerk Magistrate in the Fitchburg District Court. I am
grateful to First Assistant Clerk Magistrate D’Andrea for assuming these responsibilities.

Dudley District Court First Assistant Clerk Magistrate William F. George will continue
to serve as Acting Clerk Magistrate of Dudley District Court.

4. March 2018 Regional Education Meeting Dates. The dates and locations for the
March 2018 Regional Education Meetings have been established. On the respective dates listed
below, the clerk magistrates’ meeting is scheduled for the morning from 9:00 a.m. to 12:00 p.m.
and judges are scheduled to meet in the afternoon from 1:30 p.m. to 4:30 p.m. The dates and
locations are as follows:

Regions 1 and 2: Friday, March 2nd at the Plymouth Trial Court, Jury Pool Room
Regions 5 and 6: Tuesday, March 6th at the Worcester Law Library, 5th Floor
Regions 3 and 4: Wednesday, March 7th at the Peabody District Court, 3rd Session

5. District Court Conversion to Full Criminal Docketing. As of December 15, 2017,

every district court began using MassCourts for full criminal docketing. Each district court now
uses the electronic case management system to record and docket all court activity. The
functionality includes document imaging of the most essential court orders and filings.

The project was begun with the outstanding efforts of Kathleen McKeon, Clerk
Magistrate of the Woburn District Court and Special MassCourts Liaison for the District Court
who lead the work of Clerk-Magistrates and others in the District and Boston Municipal Court in
the creation of the necessary codes and templates which serve as the foundation for electronic
criminal docketing. Thanks to the efforts and support of JISD, the enhancements to MassCourts
to support full docketing were put in place shortly thereafter. The criminal conversion to each of
the 62 district courts, which included implementation in each court and extensive training of
MEMORANDUM
January 16, 2018
Page 3

court users, could not have been accomplished without the diligent efforts of each of the District
Court Performance Analysts. Their unwavering energy, willingness to travel to all areas of the
Commonwealth and their strong work ethic made the quick and successful completion of this
project a reality. Credit must also be given to the District Court users in all divisions, who
willingly accepted the changed docketing process, despite the initial disruption created in their
normal work assignments and who continually invest their time to improve their knowledge of
the MassCourts Application for the benefit of all court users.

6. Updated Immigration Benchcard. At the December 13, 2017 conference, we

distributed a revised Information in Immigration Matters benchcard, dated 12/17, to note the
Supreme Judicial Court’s holding in Lunn v. Commonwealth, that Massachusetts court officers do
not have the authority to hold an individual in custody solely on the basis of a Federal civil
immigration detainer beyond the time that the individual would otherwise be entitled to be
released from State custody. 477 Mass. 517, 537 (2017). Consistent with District Court
Transmittal No. 1209, which was issued after the Lunn decision and rescinded prior District Court
transmittals on this subject, this revised benchcard replaces the benchcard dated 10/16, which
should be discarded. Please contact Jackie Lawton, ([email protected])
(617) 788-8810) if you did not receive the updated benchcard. The electronic version of the
new benchcard is also attached so that you can replace pp. 125-126 in your 90 Day
Guide. Additional guidance on responding to requests from the Department of Homeland
Security can be found in the Trial Court’s Policy and Procedure Regarding Courthouse
Interactions with the Department of Homeland Security issued by Executive Office Transmittal
17-13, dated November 10, 2017.

7. 90 Day Guide Updates. In an effort to keep your 90 Day Guide current, please replace
Transmittal No. 1095 at pp. 55-57, which describes the VALOR Act procedures, with the
attached District Court Transmittal No. 1201. As noted in this more recent VALOR Act
transmittal, the Supreme Judicial Court’s holding in Commonwealth v. Morgan, 476 Mass. 768
(2017), that a judge is permitted to exercise discretion to dismiss the prosecution of a veteran
who successfully completes a diversion program over the objection of the Commonwealth, is
contrary to the position set forth in Transmittal 1095 (Dec. 19, 2012). The attached Transmittal
No. 1201 summarizes the holding of Morgan and sets forth the VALOR Act procedures.

8. Triple I’s in 209A and 258E Cases. The Probation Service has confirmed that in
restraining order and harassment prevention order cases, when the CARI is run on the defendant,
the III record will also be run and provided to the court. If the court directs Probation to do so,
Probation will also run the Triple I record on the plaintiff.

9. Judiciary Policy Regarding Display of Commemorative or Expressive Works in

Massachusetts Courthouses. Effective December 1, 2017, The Supreme Judicial Court has
adopted a new Judicial Policy regarding Display of Commemorative Expressive Works in
Massachusetts Courthouses. A copy of this new policy is attached to this transmittal.
MEMORANDUM
January 16, 2018
Page 4

10. Courthouse Protocols for Fentanyl and Carfentanil. As referenced in Executive

Office Transmittal 18-1, the Trial Court has developed Courthouse Protocols for Fentanyl and
Carfentanil. Due to the increasing safety concern regarding these substances, the protocols have
been created to ensure the safety of all courthouse employees and the public while still
maintaining the interests of the parties in the admissions of these substances and the rights of the
criminal defendants. The newly developed protocols are attached to this transmittal for your
review.
APPENDIX D
APPENDIX E
 Case 1:19-cr-10141-LTS Document 177 Filed 09/22/22 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 19-cr-10141-LTS
)
SHELLEY M. RICHMOND JOSEPH, and )
WESLEY MACGREGOR, )
)
Defendants )

MOTION TO DISMISS COUNTS 1-3 AND

DEFER PROSECUTION AS TO COUNT 4

The United States of America, by and through its undersigned counsel, hereby moves,

pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure, to dismiss Counts 1-3 of the

Indictment in this case in accordance with an agreement reached with Massachusetts state District

Court Judge Shelley Richmond Joseph under which she has attested to a statement of relevant facts

and agreed to refer herself to the Massachusetts Commission on Judicial Conduct: the forum that

is designed to investigate and address alleged misconduct by state judicial officers and to make

final recommendations on discipline to the Supreme Judicial Court of Massachusetts. A separate

agreement has been reached to defer prosecution against retired Massachusetts Court Officer

Wesley MacGregor on Count 4 of the Indictment. Those agreements, which resolve the pending

federal criminal charges against both defendants, are attached hereto as Exhibit A (as to Joseph)

and Exhibit B (as to MacGregor). An affidavit attesting to the fact that Judge Joseph has referred

herself to the Massachusetts Commission on Judicial Conduct is attached as Exhibit C. Both

defendants, through counsel, consent to the requested dismissals.

The government has conducted a full review of the evidence, the applicable law, and all

relevant equitable and prudential factors pertinent to this matter. Based on this review, the United
 Case 1:19-cr-10141-LTS Document 177 Filed 09/22/22 Page 2 of 3

States has concluded that dismissal of the above-referenced counts is in the interests of justice,

consistent with the Principles of Federal Prosecution set forth in Justice Manual § 9-27.22.

Among other factors, respect for comity and federalism as between the state and federal judicial

systems, as well as the availability of an alternative forum capable of adequately and

proportionately addressing the alleged conduct, strongly favors dismissal.

Judge Joseph’s actions on April 2, 2018, needlessly obscured the events surrounding the

release of a Massachusetts state court defendant who was also the subject of an ICE civil detainer.

See United States v. Joseph, 26 F.4th 528, 531-32 (1st Cir. 2022). Those actions contributed to

the ambiguity of the factual record. But that ambiguity, any potential violations of Massachusetts

state court policies, and the question of whether Judge Joseph’s actions potentially undermined

public confidence in the integrity and impartiality of a state court proceeding, are, in this case, best

addressed by state judicial oversight, rather than federal criminal prosecution. Judge Joseph’s

agreement to refer herself to the Judicial Conduct Commission will allow for that oversight, as the

Commission will have the ability to fully consider Judge Joseph’s recent factual admissions as part

of its review, along with the public allegations and filings made in this case.

Mr. MacGregor, who has already been subject to discipline for his conduct, has resigned

his position as a Court Officer and is no longer employed by the Massachusetts state court system,

has entered into a deferred prosecution agreement with respect to Count 4: the single count of

perjury with which he is charged. The United States has determined that the deferred prosecution

agreement entered with Mr. MacGregor represents a fair and balanced resolution of this matter

and is likewise in the interest of justice.

For all of the foregoing reasons, the United States respectfully requests that the Court grant

its motion to dismiss Counts 1-3 of the Indictment and defer prosecution as to Count 4.

2
 Case 1:19-cr-10141-LTS Document 177 Filed 09/22/22 Page 3 of 3

Respectfully submitted,

ZACHARY A. CUNHA
UNITED STATES ATTORNEY
Acting Under Authority
Conferred by 28 U.S.C. § 515

By: /s/ William Abely

WILLIAM ABELY
Criminal Chief
AMANDA STRACHAN
Deputy Criminal Chief
U.S. Attorney’s Office
for the District of Massachusetts

September 22, 2022

3
 Case 1:19-cr-10141-LTS Document 177-1 Filed 09/22/22 Page 1 of 6
EXHIBIT A

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 19-cr-10141-LTS
)
SHELLEY M. RICHMOND JOSEPH, )
)
Defendant )

AGREEMENT

This Agreement (the “Agreement”) is made between the United States Attorney’s Office

for the District of Massachusetts (the “USAO”) and the defendant, Shelley M. Richmond Joseph

(“Joseph”).

Joseph acknowledges that the USAO has independently developed evidence during its

investigation and that a Grand Jury sitting in the District of Massachusetts returned an indictment

in this case; Joseph does not challenge the validity of the Grand Jury’s action.

Term of the Agreement

1. This Agreement is effective for a period, running from the date on which it is signed

until the date the conditions below are satisfied (the “Term”).

Cooperation with Massachusetts Commission on Judicial Conduct

2. Joseph agrees that within thirty days of the effective date of this agreement, she will

formally refer herself to the Massachusetts Commission on Judicial Conduct and will thereafter

cooperate fully in any investigation or proceeding into her conduct that has been or may be initiated

or conducted by the Massachusetts Commission on Judicial Conduct, until any such investigation

or proceeding is closed or concluded. Such referral shall include a stipulation by Joseph to the

accuracy of the facts set forth in the attached Statement of Facts (“Statement”). The parties agree

1
 Case 1:19-cr-10141-LTS Document 177-1 Filed 09/22/22 Page 2 of 6

that the attached agreed-upon statement of facts may not represent all relevant facts. Joseph

agrees that she will: (1) not contest the accuracy of the Statement; (2) not object to the

consideration, or admissibility into evidence, of the Statement in any investigation or proceeding

that has been or may be initiated or conducted by the Massachusetts Commission on Judicial

Conduct; and (3) attest in writing, under penalty of perjury, to her compliance with the conditions

of this Paragraph at the time of her submission to the Massachusetts Commission on Judicial

Conduct. Joseph further agrees that the Indictment, and any other public filings on the docket in

this case shall be available to the Massachusetts Commission on Judicial Conduct. Except as

expressly provided herein, nothing in this paragraph shall be read to impair Joseph’s ability to

otherwise defend or contest any proceeding before, or sanction imposed by, the Massachusetts

Commission on Judicial Conduct, including any appeals.

Dismissal of Prosecution

3. If Joseph complies with her obligation under Paragraph 2 of this Agreement to refer

herself to the Massachusetts Commission on Judicial Conduct, and provides sworn attestation of

her self-referral, the USAO will file an assented-to motion for dismissal of the Indictment no later

than thirty days after receiving the attestation; such dismissal shall be without prejudice to the

United States ability to re-present the indictment in the event of a material breach of Joseph’s

obligations under Paragraph 2.

4. The USAO and Joseph understand that the Court must approve the dismissal of the

charges in the Indictment.

Agreement Binding Only on Joseph and USAO

5. This Agreement is binding only on Joseph and the USAO and does not bind any

other component of the U.S. Department of Justice, any federal agency, or any state or local law

enforcement or administrative authority, including, but not limited to, the Massachusetts

2
 Case 1:19-cr-10141-LTS Document 177-1 Filed 09/22/22 Page 3 of 6

Commission on Judicial Conduct and the Massachusetts Supreme Judicial Court. Further, the

waivers and other agreements made by Joseph herein shall not be binding on Joseph in any civil

or criminal proceeding initiated by any person or entity other than the USAO or Joseph.

6. Nothing in this Agreement restricts in any way the ability of the USAO to proceed

against any individual or entity not a party to this Agreement.

Miscellaneous

7. Joseph and the USAO agree that this Agreement, including the Statement, shall be

made available to the public.

8. This Agreement may be executed in counterparts, each of which shall be deemed

an original but all of which taken together shall constitute one and the same Agreement. Signatures

transmitted by facsimile or email shall be deemed to be original signatures for all purposes.

9. This Agreement, including the Statement, constitutes the entire agreement between

the parties, and supersedes any prior agreements or understandings, both oral and written, with

respect to the subject matter hereof and the disposition of this case. No promises, representations,

or agreements have been made other than those set forth in this Agreement. This Agreement may

be modified or supplemented only in a written memorandum signed by the parties or by express

agreement of the parties on the record in court.

10. Joseph is aware that 18 U.S.C. § 3006A, the so-called “Hyde Amendment,”

authorizes courts in criminal cases to award to certain prevailing defendants’ attorneys’ fees and

other litigation expenses. In executing this agreement, Joseph voluntarily and knowingly waives

any claim Joseph might assert under this statute.

Advice of Counsel

11. Joseph acknowledges the following: she has read and understands the terms and

provisions of this Agreement; she has had a full and complete opportunity to consult with legal

3
Case 1:19-cr-10141-LTS Document 177-1 Filed 09/22/22 Page 4 of 6
 Case 1:19-cr-10141-LTS Document 177-1 Filed 09/22/22 Page 5 of 6

Statement of Facts

1. Shelley Richmond Joseph (“Joseph”) was appointed as a Massachusetts District

Court Judge on November 2, 2017, and thereafter was assigned to sit at various district courts,
including Newton District Court, in accordance with a monthly assignment schedule.

2. Joseph was the only judge sitting at Newton District Court on April 2, 2018.

3. Joseph knew that criminal defendants in Newton District Court custody were kept
in the lockup area in the basement of the courthouse and were brought upstairs by a court officer
to the courtroom for their court appearances. The normal custom and practice in Newton District
Court, subject to certain exceptions, was that a defendant would be released from custody into the
courtroom. This courtroom had only one public entry/exit, which led to the courthouse lobby.

4. The Massachusetts Rules of Court, which prescribe rules for all state district courts,
including the Newton District Court, provided, in pertinent part, that “all courtroom proceedings,”
which includes sidebar conferences, were required to be electronically recorded.

5. On or about November 10, 2017, the Executive Office of the Massachusetts Trial
court issued guidance to all Massachusetts state judges, clerks and other courthouse personnel
titled, “Policy and Procedures Regarding Interactions with the U.S. Department of Homeland
Security,” (“DHS Policy”). The DHS Policy instructed, in pertinent part, that (1) “Trial Court
employees should be mindful that courthouses are public spaces that are open to all persons and
that all persons entering a courthouse should be treated with respect and dignity, including
individuals subject to civil immigration detainers and DHS employees;” (2) “DHS officials may
enter a courthouse and perform their official duties;” (3) “pursuant to an immigration detainer or
warrant, court officers shall permit the DHS official(s) to enter the holding cell area in order to
take custody of the individual once Trial Court security personnel have finished processing that
individual out of the court security personnel’s custody; and (4) “[t]o the extent possible, court
security personnel should require that DHS officials transport any individuals taken into custody
through the prisoner transport entrance and avoid taking the individual through the public areas of
the courthouse.”

6. One of the cases that Joseph heard on April 2 was Commonwealth v. A.S. Joseph
knew that A.S. was initially being held on a warrant as a fugitive from Pennsylvania and had been
charged with two counts of narcotics possession in violation of Massachusetts law. She also knew
that A.S. was being held in the downstairs lockup area of the courthouse.

7. Joseph also knew that Immigration and Customs Enforcement (“ICE”), which is
part of the U.S. Department of Homeland Security, intended to take custody of A.S. pursuant to a
civil immigration detainer. The detainer stated that ICE had probable cause to believe that A.S.
was a deportable alien based on a final order of removal previously issued against him.

8. Joseph knew that an ICE officer was present in the courthouse waiting to take

5
 Case 1:19-cr-10141-LTS Document 177-1 Filed 09/22/22 Page 6 of 6

custody of A.S. if he was released from state custody. Joseph directed a court clerk to request that
the ICE officer remain outside the courtroom in accordance with the practice of the presiding
justice in Newton District Court. This direction was contrary to the DHS policy, which reflects,
consistent with Supreme Court precedent and constitutional guarantees, that courthouses and
courtrooms are public spaces and open to the public absent extraordinary circumstances not present
here.

9. When A.S.’s case was recalled that afternoon, his defense attorney asked for a
sidebar. At sidebar, the prosecutor stated that she no longer believed that this defendant was the
same person subject to the Pennsylvania charge and thus that she was dismissing the fugitive
warrant and not seeking to detain the defendant on the remaining Massachusetts narcotics charges.
The defense attorney stated that an ICE officer was waiting outside the courtroom with an
immigration detainer for A.S. and would pick up A.S. if Joseph released A.S. After hearing this
information, Joseph stated, among other things, “ICE is gonna get him? …. What if we detain
him?” The defense attorney asked if the sidebar was being recorded and asked to go off the
record. Contrary to Massachusetts Rules of Court, Joseph directed the court clerk to turn off the
recording device.

10. After the recorder was turned off, there was a 52 second off-the record sidebar
conference with Joseph, the defense attorney and the prosecutor present. In the course of this
conference, the defense attorney asked Joseph to allow A.S., who had been escorted up to the
courtroom by a court officer, to go back downstairs.

11. After the off-the record portion of the sidebar, the defense attorney asked, on the
record, if he could go downstairs with A.S. and an interpreter so that they could speak. The
defense attorney also stated that his client had property downstairs. Joseph stated on the record
that she was granting the defense attorney’s request. The clerk reminded the Judge on the record
that ICE agents were present and seeking to take the defendant into custody.

12. The defense attorney and the interpreter accompanied A.S. downstairs to the lockup
area. Shortly thereafter, a court officer used his key card to open the door to the sallyport and
released A.S. out the back door

13. The ICE officers learned about A.S.’s release after it happened. A.S. was not taken
into ICE custody on April 2, 2018.

6
Case 1:19-cr-10141-LTS Document 177-2 Filed 09/22/22 Page 1 of 5
EXHIBIT B
Case 1:19-cr-10141-LTS Document 177-2 Filed 09/22/22 Page 2 of 5
Case 1:19-cr-10141-LTS Document 177-2 Filed 09/22/22 Page 3 of 5
Case 1:19-cr-10141-LTS Document 177-2 Filed 09/22/22 Page 4 of 5
Case 1:19-cr-10141-LTS Document 177-2 Filed 09/22/22 Page 5 of 5
Case 1:19-cr-10141-LTS Document 177-3 Filed 09/22/22 Page 1 of 1
EXHIBIT C
APPENDIX F
Production 3.34 - CourtView Justice Solutions Page 4 of 6

Journal Amount
Date Ref Docket Text Judge Image
Book Due
Default Warrant ordered to issue. Judge: Heffernan,
Heffernan, Hon. Mary E Hon. Mary
E
05/29/2018 Default warrant recall fee assessed. Default 0.00
Warrant issued on 05/29/2018 for Medina-Perez,
Jose Dismissed Type: Waived judges order.
Dismissed Date: 07/07/2022 Dismissed Amount:
50.00 Dismissing Clerk / Judge: Heffernan, Hon.
Mary E Comments: remitted on 03/28/2022
Dismissed By: HELBERG
11/29/2018 Fee for 90 min CD/Tape recording of proceedings 0.00
assessed. Receipt: 29198 Date: 11/29/2018
11/29/2018 Fee for Postage for CD/Tape Recordings 0.00

12/03/2018 Charges Disposed:: Charge # 1 FUGITIVE FROM

JUSTICE ON COURT WARRANT c276 §20A On:
04/02/2018 Judge: Hon. Shelley M Joseph
Dismissed - Request of Commonwealth
12/04/2018 Fee for 90 min CD/Tape recording of proceedings 0.00
assessed. Receipt: 29226 Date: 12/04/2018
12/04/2018 Fee for Postage for CD/Tape Recordings 0.00

12/05/2018 Fee for 90 min CD/Tape recording of proceedings 0.00

assessed. Receipt: 29235 Date: 12/05/2018
12/05/2018 Fee for Postage for CD/Tape Recordings 0.00

04/25/2019 Fee for 90 min CD/Tape recording of proceedings 0.00

assessed. Receipt: 30128 Date: 04/25/2019
04/25/2019 Fee for Postage for CD/Tape Recordings 0.00

04/26/2019 Fee for 90 min CD/Tape recording of proceedings 0.00

assessed. Receipt: 30138 Date: 04/26/2019
04/26/2019 Fee for Postage for CD/Tape Recordings 0.00

04/26/2019 Fee for 90 min CD/Tape recording of proceedings 0.00

assessed. Receipt: 30141 Date: 04/26/2019
Reverse Receipt: 30141 Date: 04/26/2019 Reverse
by: 30142 Receipt Reversal Reason: PAYMENT
TENDER ERROR, INCORRECT TENDER Reverse
Amount: 50.50 Receipt: 30143 Date: 04/26/2019
04/26/2019 Fee for Postage for CD/Tape Recordings 0.00

11/22/2019 Fee for 90 min CD/Tape recording of proceedings 0.00

assessed. Receipt: 31390 Date: 11/22/2019
11/22/2019 Fee for Postage for CD/Tape Recordings 0.00

12/09/2021 Warrant recalled: Default Warrant cancelled on

12/09/2021 for Medina-Perez, Jose
12/09/2021 Event Resulted: Default Removal Hearing Queally,
scheduled on: 12/09/2021 02:00 PM Has been: Hon.
Held - Default Removed - CR Hon. Jennifer D Jennifer D
Queally, Presiding
12/09/2021 Defendant before Court on Warrant, Warrant Queally,
recalled as served. Judge: Queally, Hon. Jennifer Hon.
D Jennifer D
12/09/2021 4 Defendant is ordered committed without bail Queally,
because OTHER REASON: to Middlesex Jail Hon.
returnable for 12/10/2021 09:00 AM Hearing to Jennifer D
Review Status; mittimus issued. Court location of
next event (if not this court): Further Orders: *
DEFENDANT HELD WITHOUT BAIL DUE TO
IDENTITY ISSUES * ** DEFENDANT TO BE
BROUGHT TO COURT ON 12/10/21 ** Judge:
Queally, Hon. Jennifer D
12/10/2021 5

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Journal Amount
Date Ref Docket Text Judge Image
Book Due
Commonwealth's motion to amend complaint Heffernan,
(defendants name filed with the following, if any, Hon. Mary
supporting documents: E
12/10/2021 6 Appearance filed On this date David Jellinek,
Esq. dismissed/withdrawn as Private Counsel
for Defendant Jose Medina-Perez
12/10/2021 7 Appearance filed On this date Joseph M Perullo,
Esq. added as Private Counsel for Defendant
Jose Medina-Perez
12/10/2021 Event Resulted: Hearing to Review Status Heffernan,
scheduled on: 12/10/2021 09:00 AM Has been: Hon. Mary
Review Completed Hon. Mary E Heffernan, E
Presiding
12/10/2021 Motion to amend the complaint ALLOWED. Heffernan,
Hon. Mary
E
12/10/2021 Released on Personal Recognizance Judge: Heffernan,
Heffernan, Hon. Mary E Hon. Mary
E
12/10/2021 Interpreter requested for next court date.

02/08/2022 Event Resulted: Pretrial Hearing scheduled on: Fabbri,

02/08/2022 09:00 AM Has been: Held-PT Hon. Hon.
Michael Fabbri, Presiding Michael
02/08/2022 8 Pretrial conference report filed. Judge: Fabbri, Fabbri,
Hon. Michael Hon.
Michael
02/08/2022 Interpreter requested for next court date.

02/14/2022 9 Defendant's motion to Suppress Evidence and

Statements filed with the following, if any,
supporting documents: affidavit in support of
motion
03/28/2022 10 Defendant's motion to Pre-Trial Probation filed
with the following, if any, supporting documents:
03/28/2022 Event Resulted: Motion to suppress scheduled Heffernan,
on: 03/28/2022 10:00 AM Has been: Not Held Hon. Mary
Hon. Mary E Heffernan, Presiding E
03/28/2022 Defendant placed on pre-trial probation Heffernan,
conditions under C276§ 87 as follows:Other Hon. Mary
condition(s): No new offenses Judge: Heffernan, E
Hon. Mary E
03/28/2022 Order of pretrial conditions of release under G.L. Heffernan,
c.276 § 87 filed. Hon. Mary
E
03/28/2022 Judicial finding regarding assessment or waiver Heffernan,
of monies in criminal case filed. Judge: Hon. Mary
Heffernan, Hon. Mary E E
03/31/2022 CIMG UPDATE: ID: 48454788, Oscar Manuel
Peguero Peguero, 03/02/1979 To ID: 44501468,
Jose Medina-Perez
06/28/2022 Event Resulted: Pretrial Probation as Disposition Heffernan,
Until scheduled on: 06/28/2022 02:00 PM Has Hon. Mary
been: Held - No future event Hon. Mary E E
Heffernan, Presiding
06/28/2022 Charges Disposed:: Charge # 2 DRUG,
POSSESS CLASS B c94C §34 On: 06/28/2022
Judge: Hon. Mary E Heffernan Dismissed - After
Pretrial Probation Charge # 3 DRUG, POSSESS
CLASS E c94C §34 On: 06/28/2022 Judge:
Hon. Mary E Heffernan Dismissed - After Pretrial
Probation
06/28/2022

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Journal Amount
Date Ref Docket Text Judge Image
Book Due
All charges disposed - No future events - Heffernan,
Defendant discharged. Judge: Heffernan, Hon. Mary
Hon. Mary E E
06/28/2022 Docket report of court proceedings to date Heffernan,
Judge: Heffernan, Hon. Mary E Hon. Mary
E
07/07/2022 Docket report of court proceedings to date

Trackable Items: 0

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 BEFORE THE COMMISSION ON JUDICIAL CONDUCT

Complaint Number 2019-22

RESPONSE TO FORMAL CHARGES

GENERAL STATEMENT

Judge Shelley M. Richmond Joseph denies the conclusory allegations of the unnumbered

introductory paragraph of the Formal Charges, which do not delineate the specific conduct

alleged to violate each—or any—Rule. Judge Joseph has committed no misconduct, and

certainly no willful judicial misconduct. She has attempted at all times to treat the parties before

her, including Jose Medina-Perez, fairly and in accordance with the law and court policies, and

to promote the fair administration of justice and public confidence in the independence, integrity,

and impartiality of the judiciary. She has fully cooperated and responded truthfully to the

inquiries of her judicial colleagues, supervisors, and judicial disciplinary authorities. To the

extent that the incident involving Medina-Perez has attracted unfavorable media attention, that

attention initially resulted from the actions of Attorney David Jellinek in secretly arranging with

a court officer for his client to evade ICE. After the federal government began to investigate the

event, David Jellinek falsely implicated Judge Joseph in order to obtain immunity for himself.

RESPONSE TO SPECIFIC ALLEGATIONS

1. Judge Joseph received her Juris Doctor degree from New England School of Law in
1992. Judge Joseph was then admitted to the Massachusetts Bar and worked as an
Assistant Attorney General with the Office of the Attorney General for Massachusetts
(“Attorney General’s Office”) from 1993 to 2000. After leaving the Attorney General’s
Office, Judge Joseph worked for six months as an associate in a civil law firm. From
October of 2000 until her judicial appointment, she practiced with the Law Office of

1
 Joseph & Joseph in Newton, Massachusetts. While at the Law Office of Joseph &
Joseph, Judge Joseph specialized in criminal defense, hearings before the registry of
motor vehicles, and restraining orders.

RESPONSE No. 1

Judge Joseph agrees that Paragraph 1 sets out a brief, but incomplete, summary of her
professional background.

2. Judge Joseph was sworn in as a Massachusetts District Court Judge on November 2,

2017, and she began her training and orientation as a judge on November 3, 2017.

RESPONSE NO. 2

Judge Joseph agrees that Paragraph 2 is accurate.

3. In accord with the practice of the Administrative Office of the District Court (“AODC”),
Judge Joseph’s training and orientation included approximately four weeks sitting with a
series of other judges to observe a variety of types of courtroom proceedings.

RESPONSE NO. 3

Judge Joseph agrees that Paragraph 3 is accurate.

4. In accord with the policy of the Executive Office of the Trial Court (“EOTC”), Judge
Joseph’s training also included the assignment of a mentor judge to assist her. As of the
time of the assignment of Judge Joseph’s first mentor, her mentor had served
continuously as a District Court Judge since 2000. In May of 2019, her mentorship
assignment was transferred to another judge, who had served as a District Court judge
continuously since 2005. Judge Joseph was then assigned to sit primarily in the court
where her mentor was First Justice, and her mentor observed her regularly and provided
close supervision and training. That assignment continued until February of 2019, when
she was transferred to a different region and assigned a different mentor.

RESPONSE NO. 4

Judge Joseph agrees that she was assigned a mentor judge, whose identity changed over
time as described in Paragraph 4 of the Amended Statement of Allegations. Judge Joseph
does not recall receiving close supervision or training from any mentor judge, but
regularly consulted with colleagues about questions that arose in different courthouses.

5. The AODC’s initial orientation program for new judges, and the training materials
provided to Judge Joseph during that initial training period, did not specifically address
the topic of recording of courtroom proceedings. Judge Joseph did not undertake on her
own to familiarize herself with rules applicable to the District Court. At the time of the

2
 events that are the subject of this complaint, she was unaware of District Court Special
Rule 211, which requires that all District Court proceedings be recorded.

RESPONSE NO. 5

Judge Joseph agrees that Paragraph 5 is accurate. Judge Joseph believed, based on her
observations and experience during her legal practice prior to her judicial service, that
District Court judges sometimes conduct unrecorded discussions at sidebar during
courtroom proceedings. Judge Joseph believes that her own observations and experience
were consistent with District Court practice as described by other judges.

6. The AODC’s training program for new judges also did not specifically provide judges
with guidance regarding how to handle ICE detainers, the presence of ICE agents in
courthouses, or responding to circumstances in which ICE agents might seek to take
custody of a person in a courthouse.

RESPONSE NO. 6

Judge Joseph agrees that Paragraph 6 is accurate.

7. In response to the Court’s decision in Lunn v. Commonwealth, 477 Mass. 517 (2017), on
November 10, 2017, the Chief Justice of the Trial Court and the Court Administrator
issued EOTC Transmittal 17-13, entitled “Policy and Procedures Regarding Interactions
with the Department of Homeland Security” (the “Lunn policy”). On that same date,
EOTC sent Transmittal 17-13 by email to all Trial Court judges, clerks, department
heads, and other management personnel, to provide guidance to all Trial Court personnel
(a copy of the Lunn policy is attached as Appendix A).

RESPONSE NO. 7

Judge Joseph agrees that Paragraph 7 is accurate.

8. The Lunn policy provides the following specific guidance for circumstances in which an
Immigration and Customs Enforcement (“ICE”) agent seeks to take custody of a person
in a courthouse:

If, during the processing of an individual subject to release out of the courthouse,
a DHS official is present in the courthouse and seeks admission into the
courthouse's holding cell area in order to take custody of the individual pursuant
to an immigration detainer or warrant, court officers shall permit the DHS
official(s) to enter the holding cell area in order to take custody of the individual
once Trial Court security personnel have finished processing that individual out
of the court security personnel's custody, if a security department supervisor

3
 determines that the OHS official would otherwise take custody of the individual
inside or immediately outside of the courthouse.

RESPONSE NO. 8

Judge Joseph agrees that Paragraph 8 is accurate though incomplete as to its recitation of
material sections of the Lunn policy.

9. When the Lunn policy was emailed to all Trial Court judges on November 10, 2017,
Judge Joseph was at an early stage of her orientation as a judge. She received access to
her official judicial email account no later than November 24, 2017. The Lunn policy
may or may not have been sent to her email account, depending on when her email
address was added to the Trial Court’s distribution list for judges.

RESPONSE NO. 9

Judge Joseph agrees that Paragraph 9 is accurate. Judge Joseph does not recall receiving
the Lunn policy at that time, and was unable to locate it among her orientation and
training resources when she looked for guidance on April 2, 2018.

10. The District Court held an educational conference for all District Court judges on
December 13, 2017, but Judge Joseph was unable to attend this conference because of a
death in her family. Among the materials provided to judges at the conference was an
“Updated Immigration Benchcard” (attached as Appendix B). This Benchcard instructed
all District Court judges to refer to the Lunn policy “[f]or guidance on the manner in
which trial court employees, and in particular, court officers, shall respond to requests
from the Department of Homeland Security (DHS) to provide information about, and
take custody of, individuals subject to civil immigration detainers, and how Trial Court
staff should respond when officials from DHS enter a Massachusetts courthouse with the
intent of taking custody of an individual subject to a civil immigration detainer . . . .”
Judge Joseph does not recall whether she received the materials that were distributed at
the conference.

RESPONSE NO. 10

Judge Joseph agrees that the first sentence of Paragraph 10 is accurate. Since she did not
attend the training, she does not know what was provided to judges at the conference, and
therefore cannot respond to the second and third sentences.

11. On January 16, 2018, the Chief Justice of the District Court issued District Court
Transmittal No. 1222 (attached as Appendix C). AODC emailed the transmittal to the
official judicial email address of all District Court judges. That document described the
updated Benchcard that had been distributed to judges at the December 13, 2017,

4
 conference, and referred to an attached electronic copy of the Benchcard. District Court
Transmittal No. 1222 also referred to the Lunn policy as a source of “additional
guidance.” Judge Joseph received transmittal No. 1222 by email on or about the date it
was issued.

RESPONSE NO. 11

Judge Joseph agrees that Paragraph 11 is accurate. Judge Joseph is in possession of her
original bench card on immigration issues, which is laminated, and appears in many ways
similar to the “updated” distribution. She does not believe that she was ever aware that
there were two different bench cards. Judge Joseph does not claim that any of the
allegations against her resulted from the content of any bench card(s).

12. On April 2, 2018, Judge Joseph was assigned to preside over a courtroom in the Newton
Division of the District Court department (“Newton District Court”). Judge Joseph was
the only judge sitting in the Newton District Court on April 2, 2018. She had sat in that
Court previously and had done so as the only judge in the courthouse on dates when no
matters were scheduled. This was the first time she had sat there alone with a list of
scheduled matters.

RESPONSE NO. 12

Judge Joseph agrees that Paragraph 12 is accurate.

13. On April 2, 2018, the matters that Judge Joseph presided over included criminal charges
against a man using the name, Jose Medina-Perez (“Defendant”). 1 A copy of a transcript
of a series of hearings in the Commonwealth v. Medina-Perez matter on April 2, 2018, is
attached as Appendix D. This transcript does not include a brief third call of the case
that occurred before the lunch recess, and it does not include certain non-substantive
comments that Judge Joseph recalls. In all other respects this transcript accurately
reflects the content of the recorded hearings conducted in the case in the morning and
afternoon.

RESPONSE NO. 13

Judge Joseph agrees that Paragraph 13 is accurate. Judge Joseph agrees that the transcript
does not include the “third call,” at which Medina-Perez’s then-counsel, Elizabeth
Bostwick, stated that she had just sent a fax, or a “fourth call” two minutes later, at which
time Attorney Bostwick requested that the next call of the case be delayed until 2:15 p.m.
because she had a medical appointment. Based on these statements, Judge Joseph
believed that Attorney Bostwick was actively investigating Medina-Perez’s situation, and

1
The Newton District Court docket for Commonwealth v. Medina-Perez (attached as Appendix
F) identifies the defendant as Jose Oscar Manuel Medina-Perez. This document will refer to him
as Mr. Medina-Perez or, in the context of the District Court proceeding, as “the defendant.”

5
 expected that Attorney Bostwick would appear for her client in the afternoon session.
Judge Joseph was therefore surprised and somewhat puzzled by the sudden and
unexplained appearance of David Jellinek as private counsel in place of the bar advocate,
Attorney Bostwick, for the afternoon session.

14. At approximately 10:34 a.m., on April 2, 2018, the Commonwealth v. MedinaPerez

matter came before Judge Joseph for arraignment on a charge of being a fugitive from
justice based on a warrant issued in a case in Pennsylvania, and two counts of controlled
substance violations. The court provided a Spanish language interpreter (the
“interpreter”) to assist the defendant in understanding the courtroom proceedings.

RESPONSE NO. 14

Judge Joseph agrees that Paragraph 14 is accurate.

15. When the Commonwealth v. Medina-Perez matter was first called at approximately
10:34 a.m., Judge Joseph appointed the bar advocate (“bar advocate”) assigned to
Newton District Court on that day to represent the defendant. The prosecutor handling
the matter advised Judge Joseph that she was not seeking bail on the controlled
substance charges but would request that the defendant be held without bail on the
Pennsylvania warrant. The case was then recessed and put on for a second call.

RESPONSE NO. 15

Judge Joseph agrees that Paragraph 15 is accurate, and that she appointed the duty bar
advocate, Elizabeth Bostwick, to represent Medina-Perez.

16. After the first call but before the final afternoon call of the Commonwealth v. Medina-
Perez matter, Judge Joseph learned that ICE agents were present at the Newton District
Court with a civil immigration detainer that authorized the ICE agents to take custody of
the defendant if he were released from Massachusetts state custody. The detainer stated
that ICE had probable cause to believe that the defendant was a deportable alien based
on a final order of removal previously issued against him. 2

RESPONSE NO. 16

Judge Joseph agrees that on second call, the bar advocate, Attorney Bostwick, expressed
her opinion that the photograph accompanying the Pennsylvania warrant was not that of
the defendant, Medina-Perez, who maintained that he was not the person sought by the
warrant. Attorney Bostwick requested time to obtain information from the defendant’s

2
The ICE agents also had a warrant of removal for the defendant, stating that the defendant was
subject to removal from the United States based upon a final order by a designated official, and
that any Immigration Officer with the United States Department of Homeland Security was
commanded to take custody of the dendant for removal from the United States.

6
 employer and to review the “Triple I” form, which Judge Joseph granted. The
Commonwealth indicated that it was continuing to request that the defendant be held
without bail on the fugitive warrant from Pennsylvania. At the third call before lunch,
Attorney Bostwick stated that she had just sent a fax. At a fourth call two minutes later,
she asked for additional time over the lunch break because both she and the interpreter
had appointments. Judge Joseph granted the request and indicated that she would hold
the Medina-Perez case until 2:15 or 2:30 to accommodate Attorney Bostwick’s schedule.

17. While the Commonwealth v. Medina-Perez matter was recessed, the First Assistant
Clerk, who was serving as the session clerk, brought to Judge Joseph’s attention that an
ICE agent was present in the courtroom, and that the Newton District Court had a policy
that ICE agents be directed to wait outside the courtroom. After contacting AODC for
information about any applicable Trial Court policy, and learning the content of the Lunn
policy, Judge Joseph asked the session clerk to give direction to the ICE agent in accord
with the Newton District Court policy. The clerk did so, and the ICE agent waited in the
public lobby on the first floor or outside the building.

RESPONSE NO. 17

Judge Joseph agrees that the first two sentences of Paragraph 16 are accurate.
Specifically, it was during the lunch recess that she first learned about the Newton
District Court policy that the ICE agents were present and should be directed to wait
outside the courtroom. She called the Executive Office of the Trial Court for guidance,
and the Lunn policy was read to her. In consultation with the EOTC, she was advised
that the Newton District Court policy, as established by the Newton District Court
Presiding Justice, was not inconsistent with the Trial Court’s Lunn policy and could be
followed. Judge Joseph then advised the session clerk that she would adhere to the
Newton District Court policy. With respect to the third and final sentence of Paragraph
17, Judge Joseph has no knowledge of the location of the ICE agents at any time or what
conversation occurred between the clerk and the ICE agents, as she neither saw nor
spoke with any ICE agent on April 2, 2018.

18. During the recess, persons associated with the defendant in the Commonwealth v.
Medina-Perez matter retained private counsel for him, and that attorney entered an
appearance. 3

3
This defense attorney graduated from an ABA-accredited law school in 2000 and has been a
member of the Massachusetts Bar since 2001. At the time of the April 2, 2018 incident, defense
counsel had been practicing exclusively criminal defense in his own private practice for
approximately nine to ten years. That private criminal defense work included approximately
nine to ten years of regular appearances representing criminal defendants in the Newton District
Court. Prior to his private practice, defense counsel worked as a criminal defense attorney for
the Massachusetts Committee for Public Counsel Services, where he was a Superior Court
certified attorney for approximately five years. Defense counsel is also the author of a published
practice guide to Massachusetts criminal law.

7
 RESPONSE NO. 18

Judge Joseph has no information about how or when the appointed bar advocate,
Attorney Bostwick, who had been advocating effectively for Medina-Perez, and who
immediately before the lunch recess had expressed her intention to return for further call
at 2:15 p.m., came to be replaced with David Jellinek.

19. The final hearing before Judge Joseph in the matter began at approximately 2:48
p.m. At some point before that hearing, the defendant attorney had formulated a plan
with the court officer that the defense attorney intended to permit Mr. Medina-Perez to
avoid the ICE agents. As part of that plan, the court officer indicated that he could
release Mr. Medina Perez through the sally-port door in the lockup if the defense
attorney could arrange for the defendant to return to the lockup after his court
proceedings. During this final call of the matter, the defendant, the prosecutor, and the
newly-retained defense attorney appeared before Judge Joseph in the courtroom.
Defense counsel asked for a sidebar conference. Judge Joseph granted that request and
conducted a recorded sidebar conference with the defendant’s attorney and the
prosecutor. An interpreter was present for the defendant and had some access to the
sidebar conference. In the course of this conference, the prosecutor advised that she no
longer believed that the defendant was the same person subject to the Pennsylvania
warrant, and thus that she would move to dismiss the fugitive from justice charge and
would not seek bail on the remaining Massachusetts controlled substances charges.

RESPONSE NO. 19

Judge Joseph agrees that the first sentence of Paragraph 19 is accurate. With regard to
the second and third sentences of Paragraph 19, Judge Joseph has no first-hand
information about the time and manner in which David Jellinek formed his agreement
with the court officer. Judge Joseph was unaware of any such agreement, and first
learned about an agreement when she was given access to David Jellinek’s federal grand
jury testimony, in which he admitted making that agreement. Judge Joseph agrees that
the fourth, fifth and sixth sentences of Paragraph 19 are accurate. With respect to the
seventh sentence of Paragraph 19, it is not accurate that the interpreter had “access” to the
sidebar conference, as he was located next to Medina-Perez. Medina-Perez was in the
glass-enclosed custody dock on the other side of the courtroom from the sidebar, and the
interpreter was standing outside the glass, inches from Medina-Perez. Judge Joseph
agrees that the final sentence of Paragraph 19 is accurate, in that the prosecutor for the
first time, and without any explanation, recanted the position regarding the defendant’s
identity that she had taken repeatedly in the morning. The prosecutor now stated,
apparently after a conversation with David Jellinek, that she did not believe the defendant
was the person subject to the Pennsylvania warrant and said she would dismiss the
fugitive of justice charge.

8
20. The sidebar conference included discussion of whether the defendant was the person
who was the subject of the ICE detainer, and the presence of the ICE agents who, at that
time, were still waiting in the front area of the courthouse to take the defendant into
custody if he were released from state custody. Defense counsel told Judge Joseph, “ICE
is going to pick him up if he walks out the front door. But I think the best thing for us to
do is to clear the fugitive issue, release him on a personal, . . . and hope that we can
avoid ICE.”

RESPONSE NO. 20

Judge Joseph agrees that Paragraph 20 includes selected statements from the sidebar
conference, although the entire transcript is important to establish the context and
sequence of the discussion and later events. Judge Joseph had no knowledge about where
the ICE agents were located, and had not directed them where they should wait.

21. After hearing this information, Judge Joseph said, “the other alternative is if you need
more time to figure this out – hold until tomorrow.” Defense counsel explained that “if
he’s bailed out . . . ICE will pick him up.” Judge Joseph responded, “ICE is gonna get
him?” . . . What if we detain him?” The quality of the recording is insufficient to allow
a listener to evaluate the tone of these comments and questions.

RESPONSE NO. 21

Judge Joseph agrees that first two sentences of Paragraph 21 include selected statements
from the sidebar conference, although the entire transcript is important to establish the
context and sequence of the discussion and later events. Judge Joseph is unable to
determine whether “[t]he quality of the recording is insufficient to allow a listener to
evaluate the tone of these comments and questions.”

22. At that point, defense counsel asked, “Are we on the record?” Judge Joseph then said to
the session clerk, “can we go off the record for a moment?” After she repeated that
request, the session clerk turned off the courtroom recording system. Judge Joseph did
not ask defense counsel for any explanation of his request to confer off the record and
did not consider any reason or justification for doing so. In violation of District Court
Special Rule 211, Judge Joseph conducted an unrecorded conference with counsel
regarding the case, lasting approximately 52 seconds. The unrecorded conference
occurred at sidebar, with the prosecutor and defense counsel present, outside the hearing
of others present in the courtroom.

RESPONSE NO. 22

Judge Joseph agrees that the first two sentences of Paragraph 22 include selected
statements from the sidebar conference, although the entire transcript is important to
establish the context and sequence of the discussion and later events. With respect to the

9
 third sentence of Paragraph 22, Judge Joseph agrees that she did not know why David
Jellinek asked to go off the record, but that given the complicated and somewhat puzzling
sequence of events, including the unexpected change of counsel and the prosecutor’s
abrupt reversal of her position on whether the defendant was the person sought by the
fugitive warrant, Judge Joseph did not consider the request alarming or unusual. With
respect to the fourth sentence of Paragraph 22, Judge Joseph agrees that she unknowingly
violated District Court Special Rule 211, which was inconsistent with her prior
experiences as a lawyer. With respect to the final sentence of Paragraph 22, Judge Joseph
agrees that the three people who could hear the unrecorded conference were she herself,
the prosecutor and David Jellinek. The courtroom clerk was near the sidebar, but Judge
Joseph does not know whether he heard what was said.

23. Judge Joseph’s statements on the record, particularly her questions “ICE is gonna get
him?” and “What if we detain him?” would give a reasonable observer the impression
that she sought to assist defense counsel in identifying a means for the defendant to
avoid ICE. Judge Joseph’s willingness to conduct an unrecorded sidebar conversation
with counsel, in violation of District Court Special Rule 211, added to the basis for that
impression.

RESPONSE NO. 23

Judge Joseph disagrees either that her statements as quoted in Paragraph 23 conveyed an
intention to “assist defense counsel in identifying a means for the defendant to avoid
ICE” or that she subjectively had any such intention. As she had tried to do throughout
the day, Judge Joseph did intend to permit both of Medina-Perez’s counsel sufficient
time to represent their client properly, and she did not want ICE to take custody of
Medina-Perez if it was determined that he was not the person subject to the detainer.
Given the preceding events, Judge Joseph’s intention was to make sure that Medina-
Perez’s counsel, who had repeatedly insisted that the ICE detainer did not pertain to his
client, had a reasonable opportunity to investigate his belief that his client was not the
subject of the detainer and to present ICE with any further information he was able to
obtain to establish that ICE was mistaken about his client’s identity. Her suggestion was
intended to explore a course of action that would cause the defendant to be held without
bail in state custody until the morning to permit defense counsel a reasonable
opportunity to make that inquiry. Judge Joseph further disagrees that any inference of
improper motive should be drawn from the unrecorded conference, as the record prior to
that point reflects no indication that Jellinek planned to engineer his client’s escape, and
would have given her no reason to expect that Jellinek—in the presence of the assistant
district attorney and perhaps the clerk—was about to suggest that any party take
improper actions to assist his client’s escape. Further, Judge Joseph’s experience with
unrecorded sidebar and lobby conferences, over twenty-five years as a practicing lawyer,
led her to believe that this was an occurrence with no sinister meaning.

10
24. During the unrecorded conference, defense counsel asked Judge Joseph to allow the
defendant to return downstairs to the lockup area after he was released from state
custody, and to allow defense counsel to accompany him there, along with the
interpreter.

RESPONSE NO. 24

Judge Joseph disagrees with the first sentence of Paragraph 24. She agrees that she was
asked by defense counsel to permit him to speak with his client in the downstairs lockup
with the assistance of the interpreter before he was released, which Judge Joseph
expected to be into ICE custody. In view of 111E rights read by Judge Joseph in open
court but otherwise unexplained, as well as the multiple legal issues facing the defendant
and his impending move to ICE custody, she believed such communication to be
essential to attempt to protect Medina-Perez’s right to counsel. She was not confident
that the ICE agents would either delay their seizure of Medina-Perez to permit an
attorney-client conference, or permit the conference to take place once they had taken
him into their custody. She therefore thought it was reasonable to allow the conference
to occur before he was released to ICE, and the lockup was the only practical place for
such a conference.

25. Defense counsel informed Judge Joseph that, if she permitted him to return to the
downstairs lockup area with the defendant and the interpreter, he thought his client could
be released through the rear sally-port exit of the courthouse. Knowing that the ICE
agents were, at her direction, still waiting for the defendant in a different location in the
front area of the courthouse, Judge Joseph allowed defense counsel’s request.

RESPONSE NO. 25

Judge Joseph denies that David Jellinek stated that he thought his client would be
released through the rear sally-port exit of the courthouse. Judge Joseph had no
knowledge about where the ICE agents were located, and had not directed them where
they should wait. Judge Joseph has no knowledge about what conversations occurred
between the clerk and the ICE agents after she told the clerk that she would adhere to the
Newton District Court policy prohibiting the ICE agents from entering the courtroom.
Judge Joseph agrees that she allowed David Jellinek’s request to accompany his client
and the interpreter to the lockup.

26. Judge Joseph responded to these statements from defense counsel in a manner that, in the
context of her above-described conduct, caused defense counsel to reasonably believe
that Judge Joseph had granted him permission to try to help the defendant avoid being
taken into custody by ICE, including by granting defense counsel’s request to return to
the lockup area with the defendant and the interpreter, after the defendant had been
released from state custody.

11
 RESPONSE NO. 26

Judge Joseph denies the allegations in Paragraph 26. Judge Joseph specifically denies
that she had any knowledge of the plan that David Jellinek had formed with the court
officer, or that she did or said anything that would cause David Jellinek to form a
belief—reasonable or unreasonable—that she was aware of or had acquiesced to his
secret plan to have Medina-Perez released from the downstairs lockup.

27. From her discussion with defense counsel during the unrecorded sidebar conference,
Judge Joseph understood that defense counsel intended to continue to help the defendant
avoid being taken into custody by ICE that day.

RESPONSE NO. 27

Judge Joseph denies the allegations in Paragraph 27. Judge Joseph believed that she had,
by suggesting that the defendant be held without bail overnight, offered David Jellinek
reasonable time to pursue legal means to help the defendant avoid ICE custody by
further investigating his identify and convincing ICE, if he could, that Medina-Perez was
not the subject of the detainer. Since David Jellinek rejected this suggestion, Judge
Joseph reasonably assumed that he intended to confer with his client and formulate a
plan for his continued defense once he was in ICE custody. Judge Joseph specifically
denies that David Jellinek communicated to her his secret plan, apparently previously
concocted with the court officer, to evade ICE through illegal means, or that she said or
did anything that would cause him to form that belief.

28. When the courtroom recorder was turned on again at approximately 2:51 p.m., the
hearing in the Commonwealth v. Medina-Perez matter continued in open court. The
prosecutor indicated that her intention was to dismiss the fugitive from justice charge,
and not to seek bail on the Massachusetts charges.

RESPONSE NO. 28

Judge Joseph agrees that Paragraph 28 is accurate.

29. The defendant’s attorney then stated, “I would ask that he, uh - I believe he has some
property downstairs. I’d like to speak with him downstairs with the interpreter if I may.”
Judge Joseph responded, “That’s fine. Of course.” After the defendant was arraigned
and advised of certain statutory rights, the session clerk reminded the participants of the
presence of ICE representatives “to visit the lockup.” Judge Joseph responded, “That’s
fine. I’m not gonna allow them to come in here. But he’s been released on this.”

RESPONSE NO. 29

Judge Joseph agrees that Paragraph 29 is accurate

12
30. After the judge set a date for pretrial conference, a court officer asked whether the
defendant had been released. The session clerk confirmed that the defendant had been
ordered released. Judge Joseph then reiterated that the defendant’s attorney had “asked
if the interpreter can accompany him downstairs, um, to further interview him – and I’ve
allowed that to happen

The proceeding in the Commonwealth v. Medina-Perez matter then concluded at

approximately 2:54 p.m.

RESPONSE NO. 30

Judge Joseph agrees with the first paragraph of Paragraph 30, and that the content of the
discussions of the recorded and unrecorded sidebar conferences was placed on the record
in open court. Judge Joseph agrees that she proceeded to arraign Medina-Perez and to
give him statutory warnings, including the Chapter 111E rights which she said his
attorney would further explain to him. She further confirmed with the clerk that the ICE
agents could “visit the lockup” but, in accordance with the Newton District Court policy,
could not enter the courtroom. She assumed that ICE would reach the lockup either
through the public stairwell or the sallyport entrance, based on the court officers’
determination in accordance with the Lunn policy of what was best. Judge Joseph agrees
with the second paragraph of Paragraph 30.

31. Judge Joseph’s statements after the record resumed, referencing her decision to allow
defendant and defense counsel to go down to the lockup area after defendant’s release
from custody, and referencing the ICE officer’s exclusion from the courtroom, further
added to defense counsel’s reasonable impression that Judge Joseph had granted
permission for defense counsel to pursue efforts to have the defendant to exit the
courthouse through a rear exit in an effort to avoid ICE.

RESPONSE NO. 31

Judge Joseph denies the allegations of Paragraph 31, and specifically that she did or said
anything that would cause David Jellinek to form a belief—reasonable or
unreasonable—that she was aware of or had acquiesced to his secret plan to have
Medina-Perez released from the downstairs lockup before ICE agents could take custody
of him. Judge Joseph believed that permitting defense counsel to go to the lockup to
speak with his client was essential to assure the protection of Medina-Perez’s right to
counsel, because she was not confident that the ICE agents would either delay their
seizure of Medina-Perez to permit an attorney-client conference, or permit the
conference to take place once they had taken him into their custody, and therefore
thought it was reasonable to ensure that the conference would occur before he was
released to ICE. Further, her response to the clerk’s inquiry about the ICE agents
specifically approved the request to have ICE go to the lockup—where she knew David

13
 Jellinek and Medina-Perez were headed—and permitted that to happen, as long as the
agents complied with the Newton District Court policy by remaining outside the
courtroom.

32. Judge Joseph’s decision to allow defendant and his counsel to go downstairs to the
lockup area after the defendant had been released from state custody assisted defense
counsel’s plan for the defendant to exit the courthouse through a rear exit and avoid
being taken into custody by the ICE agents who, at Judge Joseph’s direction and
pursuant to the Newton District Court policy, were still waiting outside the courtroom.

RESPONSE NO. 32

Judge Joseph agrees that the unintended effect of her assent to allow defense counsel and
the interpreter to accompany Medina-Perez to the lockup was to assist defense counsel’s
plan, but denies that she had any knowledge of that plan, that she intended to assist that
plan, or that she intended to permit anything other than the retrieval of the defendant’s
property and an opportunity for him to confer with counsel before he was taken into ICE
custody, after which attorney-client communication might be difficult or impossible.
Judge Joseph disagrees with the final clause of Paragraph 32, as she had no contact or
communication with the ICE agents, had no idea where the agents were located at the
time Medina-Perez left the courtroom, and had not directed the agents to wait in any
particular location outside the court room.

33. Immediately following the above-described proceeding, the same court officer who had
inquired about the defendant’s custody status escorted the defendant to
the downstairs lockup area of the Newton District Court, accompanied by the
defendant’s attorney and the interpreter.

RESPONSE NO. 33

Judge Joseph agrees that Paragraph 33 is accurate.

34. Once inside the lockup area, the court officer used his security access card to open the
rear sally-port exit of the courthouse and released the defendant out of the courthouse
through the sally-port exit at approximately 3:01 p.m., on April 2, 2018.

RESPONSE NO. 34

Judge Joseph believes that Paragraph is accurate, but her belief is based on documents
provided to her counsel by the federal government, and not on any direct or indirect
personal knowledge.

35. The ICE agent, who, at the direction of Judge Joseph and in accord with practice in the
Newton District Court, had been instructed to wait outside the courtroom, was unaware
of the defendant’s release out the rear sally-port exit. Because the defendant had been

14
 released through the sally-port exit, the defendant succeeded in avoiding being taken into
custody by the ICE agents waiting for him pursuant to the detainer and Warrant of
Removal.

RESPONSE NO. 35

Judge Joseph disagrees that the first sentence of Paragraph 35 is accurate, as she, in
accordance with the Newton District Court policy as conveyed to her, instructed the
clerk to tell the ICE agents that they should wait outside the courtroom, but did not speak
to the ICE agents herself and did not instruct them, directly or indirectly, where they
should wait. Judge Joseph believes that the ICE agents were unaware that David Jellinek
procured his client’s escape out the sallyport door, and that Medina-Perez thereby
succeeded in avoiding the ICE agents, but this belief is based on documents provided to
her counsel by the federal government, and not on any direct or indirect personal
knowledge. Judge Joseph also has no knowledge as to why the ICE agents did not “visit
the lockup” where David Jellinek and Medina-Perez were headed, as the clerk had stated
they wished to do and as she had agreed they could do.

36. On April 4, 2018, the First Justice of the Newton District Court met with Judge Joseph at
the Newton District Court and asked Judge Joseph about events in the Commonwealth v.
Medina-Perez matter on April 2, 2018.

Judge Joseph told the First Justice that she was not sure what to do about making sure
that ICE could take custody of the defendant and that there was some confusion about
the Pennsylvania fugitive charge. Judge Joseph advised the First Justice that the
defendant was released on personal recognizance. Judge Joseph did not advise the First
Justice that she had conducted part of the hearing off the record, nor did the First Justice
inquire on the point, having received no information to indicate that any part of the
proceeding had occurred off the record.

Judge Joseph was less than fully candid with the First Justice in this conversation, in
failing to advise the First Justice that she had conducted part of the hearing off the
record, and that during the off-the-record conversation she had granted defense counsel’s
request to return to the lock-up area with the defendant after his release from custody,
and that defense counsel had said that he thought he could have his client released
through the sally-port exit if he could return to the lock-up area.

RESPONSE NO. 36

Judge Joseph agrees that the first sentence of Paragraph 36 is accurate, except that this
was not a planned occasion where they “met,” but rather a brief conversation in the First
Justice’s lobby during a break in the day. Judge Joseph disagrees that the second
sentence is accurate. During this brief conversation, Judge Joseph learned for the first
time that Medina-Perez had not been taken into ICE custody, apparently because he was
released out through the sally-port door. She had no additional information, and the

15
 focus of the First Justice’s questions seemed to be the court officer, with whom Judge
Joseph had had no contact. They also briefly discussed Judge Joseph’s unfamiliarity
with the Newton District Court practice of excluding ICE from the courtroom and her
effort to obtain the Lunn policy from the District Court Administrative Office, as well as
the uncertainty about the defendant’s identity. Judge Joseph told the First Justice that
she had granted David Jellinek’s request to speak with his client in the lockup with the
assistance of the interpreter. Judge Joseph agrees that the third sentence of Paragraph 36
is accurate. Judge Joseph agrees that the fourth sentence of Paragraph 36 is accurate, in
that she was unaware of Special Rule 211, and therefore did not believe there was
anything about having gone off the record that was relevant to the discussion or to
Medina-Perez’s escape. Her belief was apparently shared by David Jellinek, who,
unknown to Judge Joseph, had spoken with the First Justice ex parte without informing
the First Justice that he had asked to go off the record or that any proceedings had been
conducted off the record. As far as Judge Joseph is aware, David Jellinek did not at that
time make the claim that he had informed Judge Joseph of his secret plan with the court
officer or that he believed she had approved his scheme. Judge Joseph denies that she
was not candid with the First Justice, as she truthfully responded to the First Justice’s
questions based on her limited understanding of the situation that had just been made
known to her.

37. On a date within the next month, the Regional Administrative Justice (“RAJ”) met with
Judge Joseph at the Lowell District Court. The RAJ asked Judge Joseph about the off-
the-record portion of the hearing in the Commonwealth v. Medina-Perez matter.

The RAJ advised Judge Joseph that it was the RAJ’s understanding that a portion of the
April 2, 2018 hearing in the matter had not been recorded. When the RAJ asked Judge
Joseph what happened, Judge Joseph was less than fully candid, failing to answer that
she had directed her session clerk to turn off the courtroom recorder.

Instead, Judge Joseph responded by implying that her unfamiliarity with the courtroom
recording system may have caused a portion of the hearing not to be recorded, asking
questions about how the courtroom recording equipment in the Newton District Court
worked, referencing an experience in another courthouse where she had disconnected the
recording system after learning that it was amplifying a sidebar conversation. She
expressed concern about not wanting people in the audience to hear the discussion at
sidebar relating to the defendant’s identity.

Judge Joseph was less than fully candid in this conversation with the RAJ, in failing to
explicitly acknowledge that she had conducted part of the hearing off the record, and in
failing to advise the RAJ that during the off-the-record conversation she had granted
defense counsel’s request to return to the lock-up area with the defendant after his
release from custody, and that defense counsel had said that he thought he could have his
client released through the sally-port exit if he could return to the lock-up area.

16
The RAJ informed Judge Joseph about District Court Special Rule 211 and emphasized
to her that all courtroom proceedings must be recorded.

RESPONSE NO. 37

Judge Joseph agrees that the first three sentences of Paragraph 37 are an accurate but
incomplete summary of the discussion she had with the RAJ at the Lowell District Court
in April 2018. The RAJ invited Judge Joseph to her chambers during the lunch recess,
where they spoke while having lunch. Judge Joseph learned from the RAJ of the
existence of Special Rule 211, which prohibited off-the-record proceedings. Judge
Joseph told the RAJ that she was unaware of the rule prohibiting off-the-record
proceedings, expressed her understanding of the rule and its purpose, and promised that
she would observe the rule in all future proceedings.

Judge Joseph denies that she was less than fully candid, as she believed that the RAJ
understood that Judge Joseph had directed that the conference take place off the record,
and that it was that understanding that prompted the meeting and the discussion about
Special Rule 211 and its purpose.

Judge Joseph acknowledged having been off the record on one other particular occasion
in the Waltham District Court, where she asked for the recording to be turned off after
being told that the contents of a sidebar discussion were being amplified throughout the
courtroom where the gallery could hear. Judge Joseph explained that she did not
understand why the recording system, which was the same as the Newton District Court,
had permitted that amplification. She expressed concern about not wanting people in the
audience to hear the discussion at sidebar relating to the defendant’s identity. She denies
that she intended to imply that her unfamiliarity with the system was the cause of her
decision to agree to defense counsel’s record to go off the record.

Judge Joseph denies that she was less than fully candid with the RAJ, as the RAJ clearly
understood that Judge Joseph had conducted proceedings off the record, and, in Judge
Joseph’s mind, had asked to speak with her to inform her of the rule and its purpose.
Further, although Judge Joseph does not remember every detail of the conversation with
the RAJ, she would not have placed significance on the fact that she had granted defense
counsel’s request to speak to the defendant with the interpreter in the lock-up as part of
the off-the-record conversation, since she placed that fact on the record when the
recording resumed, and would have assumed that the RAJ was aware of that fact. Judge
Joseph did not tell the RAJ that defense counsel had said that he thought that he could
have his client released through the sally-port exit if he could return to the lock-up area
because David Jellinek made no such statement. As far as Judge Joseph is aware, David
Jellinek had not yet begun to tell people that Judge Joseph had approved his plan with
the court officer, so there was neither a reason for Judge Joseph to deny it, or for the RAJ
to inquire specifically about it. Certainly, the RAJ did not ask Judge Joseph if Jellinek
had made such a statement.

17
38. The Chief Justice of the District Court and the RAJ met with Judge Joseph in the Chief
Justice’s office on May 8, 2018.

The Chief Justice expressed particular concern that the recording had been shut off, and
that a defendant had been released from the back of the courthouse.
Judge Joseph responded by acknowledging that she had directed the session clerk to turn
off the courtroom recording, and by apologizing for having done so.

When the Chief Justice asked Judge Joseph why she had directed that the courtroom
recorder be shut off, Judge Joseph responded by explaining that she thought that the
defendant’s attorney wanted to speak to her off the record about the defendant’s identity
and about his charge from Pennsylvania. Judge Joseph indicated that the off-the-record
discussion pertained to the defendant’s identity. Judge Joseph did not disclose that the
off-the-record discussion had included defense counsel’s request that the defendant be
allowed to return downstairs, accompanied by defense counsel and the interpreter, and
his statement to the effect that he believed he could have the defendant released through
the rear of the courthouse.

Judge Joseph’s response to the Chief Justice’s questions regarding the reasons for and the
content of the off-the-record conversation were less than fully candid and were
misleading.

Judge Joseph was less than fully candid with the Chief Justice in this conversation when
she told the Chief Justice that the non-recorded conversation at sidebar was merely her
and the defense counsel still talking about the out of state warrant for Mr. Medina-Perez
from Pennsylvania.

Judge Joseph was also less than fully candid with the Chief Justice when, in response to
a series of questions from the Chief Justice about whether she had anything to do with
the defendant’s release from the courthouse on April 2, 2018, or any responsibility for it,
she strongly denied that she had anything to do with it, or responsibility for it, and did
not tell him that, at the conclusion of the Medina-Perez hearing that day, she released the
defendant from state custody but then allowed defense counsel, the interpreter, and the
defendant to all return to the lockup area, which allowed the defendant to then leave the
courthouse through the sallyport and avoid being taken into custody by ICE.

The Chief Justice asked Judge Joseph if she had anything to do with the defendant’s
release through a non-public exit of the Newton District Court on April 2, 2018. Judge
Joseph denied having any role in or awareness of that result. This denial was false.

18
RESPONSE NO. 38

Judge Joseph agrees that the first two paragraphs of Paragraph 38 are accurate.
With respect to the third paragraph, Judge Joseph believes that she expected the off-the-
record conversation would provide further information about the prosecutor’s sudden
reversal of her previous position, which involved the Pennsylvania charges, and the
overall question of the defendant’s identity, which she does not understand to this day.
Judge Joseph states that the discussion with the Chief Justice included defense counsel’s
request to be allowed to speak to his client in the lockup with the interpreter, but she is
not clear about whether it was as part of the discussion about the conference off the
record, or the larger description of events, as that request was made both off and on the
record. Judge Joseph would not have placed significance on the fact that she had granted
defense counsel’s request to return to the lock-up as part of the off-the-record
conversation, since she placed that fact on the record when the recording resumed, and
the Chief Justice informed her that he had listened to the transcript and presumably heard
that statement. Judge Joseph did not tell the RAJ that defense counsel had said that he
thought that he could have his client released through the sally-port exit if he could
return to the lock-up area because David Jellinek made no such statement. As far as
Judge Joseph is aware, David Jellinek had not yet begun to tell people that Judge Joseph
had approved his plan with the court officer, so there was neither a reason for Judge
Joseph to deny it, or for the Chief Justice to inquire specifically about it. Certainly, the
Chief Justice did not ask Judge Joseph if Jellinek had made such a statement, and Judge
Joseph did not tell the Chief Justice that David Jellinek had made such a statement,
because he did not. At the time Medina-Perez’s hearing concluded, Judge Joseph
believed that the ICE officers would take custody of the defendant, and had no inkling
that there was a plan to have him released out the sally-port door. Her lack of knowledge
is confirmed by the conduct of the prosecutor, who was present at the sidebar conference
in which David Jellinek claims to have said that he intended to get his client released out
the backdoor. After the Medina-Perez hearing concluded, the prosecutor went to the
front public area of the courthouse, where she told the ICE agents that Medina-Perez
would be coming out the courtroom door into that area and stood with them to await his
arrival. Judge Joseph does not believe that the prosecutor would have lied to the ICE
agents if she knew that David Jellinek had a plan to have his client released from the
back door, and believes that the prosecutor’s conduct confirms that neither the
prosecutor nor Judge Joseph was aware of that plan

Judge Joseph denies that she was less than fully candid with the Chief Justice. At the
time of that meeting, Judge Joseph had no idea that David Jellinek would later claim that
he had told her of his secret plan or that she had approved it, and therefore no reason to
deny or even address that claim. She did permit David Jellinek to accompany his client
and the interpreter to the lockup—a fact which was known to the Chief Justice from the
recording—and thereby unwittingly assisted in Jellinek’s plan. However, at the time of
the meeting, that plan was not known either to Judge Joseph or to the Chief Justice. She
also knew—and the record reflected—that she had agreed that the ICE agents could go to

19
 the lock-up, where she assumed that they would take the defendant into custody in
accordance with the Lunn policy. Having no understanding of why the ICE agents did
not do what they had apparently intended to do, Judge Joseph believed that she had
followed the Lunn policy, which was to permit the ICE agents to do their job.

Judge Joseph agrees that she told the Chief Justice that she had nothing to do with the
defendant’s release through a non-public exit of the Newton District Court on April 2,
2018, and that she denied having any role in or awareness of that result. Both statements
were true. As noted above, her role did include granting David Jellinek’s request to
accompany his client to the lockup; however, that fact had been placed on the record and
was known to all at the meeting, and Judge Joseph did not at the time understand that
action to be improper in any way or to have contributed to the defendant’s escape, as she
thought that ICE would take custody of the defendant in the lockup. Further, her denial
that she was aware “of the result” was true, as she was unaware of the defendant’s escape
until her conversation with the First Justice two days later. Her denial that she was aware
of David Jellinek’s secret agreement with the court officer was true, because she first
learned of that agreement when her counsel received David Jellinek’s federal grand jury
testimony.

39. After investigation, a federal grand jury returned indictments against Judge Joseph and a
court officer based on the events of April 2, 2018. On September 22, 2022, Judge Joseph
entered into an agreement with the United States Attorney, in which she stipulated to
certain facts regarding the events of April 2, 2018, and agreed to refer herself to the
Commission on Judicial Conduct. Based on that agreement, the United States Attorney
moved to discuss the charges against her, and the United States District Court so ordered
on September 23, 2022. (A copy of the motion to dismiss, with attached agreement
between Judge Joseph and the United States Attorney and agreement of facts, is attached
hereto as Appendix E).

RESPONSE NO. 39

Judge Joseph agrees that Paragraph 39 is accurate.

40. The events in connection with the Medina-Perez case on April 2, 2018, including the
unrecorded conference, the defendant’s release through the non-public sallyport exit, and
subsequent federal criminal charges against Judge Joseph and a court officer, have
received substantial public attention through news media and other sources. The public
attention to this incident has had the effect of undermining public confidence in the
judiciary.

RESPONSE NO. 40

Judge Joseph agrees that the first sentence of Paragraph 40 is accurate. Judge Joseph is
unable to offer an opinion on the effect of news media on public confidence, but notes

20
 that the publicity was precipitated by many factors, but particularly by the false
statements of David Jellinek, who subsequently received complete immunity for his
actions in arranging for his client to avoid the ICE agents, and whose false statements
continued to evolve, from the time of his initial ex parte approach to the First Justice of
the Newton District Court through his multiple encounters with the United States
Attorney’s Office. Judge Joseph disagrees with the last sentence and further notes that
she was reinstated to her position after the criminal charges were dismissed, and has sat
as a judge for two years in the Boston Municipal Court with neither incident nor
unfavorable publicity.

41. In the course of the Commission’s investigation of this matter, Special Counsel
conducted an interview of Judge Joseph, under oath, recorded by a court reporter, with
Judge Joseph’s counsel present.

In the course of that interview, when asked about events in the Medina-Perez case on
April 2, 2018, Judge Joseph denied that defense counsel told her he thought that the
defendant could be released out the back door and/or avoid being taken into custody by
ICE if he could speak to the defendant downstairs.

She further denied that she had said or done anything to facilitate the defendant’s
avoidance of ICE, or that she said or did anything that day that could have led to defense
counsel having a reasonable belief that she had assented to his plan to help the defendant
avoid being taken into custody by ICE that day. These denials were false.

RESPONSE NO. 41

Judge Joseph agrees that Paragraph 41 is true, except for the final sentence, which is not
true. Judge Joseph truthfully denied that defense counsel told her that the defendant could
be released out the back door and/or avoid being taken into ICE custody because that did
not happen. Judge Joseph truthfully stated that she could not think of anything that
would have given David Jellinek the impression that he had Judge Joseph’s “blessing for
the plan to have his client released out the back.” Judge Joseph is unable to address this
allegation further because she was not informed either during that interview or in the
present Formal Charges what “actions and statements” are alleged to have led defense
counsel to have such a belief. Finally, the actions of the prosecutor, who told the ICE
agents that Medina-Perez would be coming out the front door of the courtroom and
waiting with them in the lobby for him to appear, confirm that David Jellinek was the
only person other than the co-conspiring court officer who was aware of his plan, and
neither Judge Joseph nor David Jellinek said or did anything that caused the prosecutor to
believe that Jellinek intended to have his client avoid ICE by being released through the
back door.

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 FURTHER RESPONSE OF
JUDGE SHELLEY M. RICHMOND JOSEPH

______________________________________________________________________________

1. On November 2, 2017, I was sworn in as an Associate Justice of the Framingham

District Court. I completed the four-week training and was assigned a mentor judge to
assist me. I also regularly consulted with colleagues in different courthouses where I sat
about issues or matters that arose in different courthouses.

2. April 2, 2018, I was a new judge, just four months after my training ended. I was
assigned to sit in the Newton Division of the District Court. I was familiar with Newton
District Court from having practiced there regularly as a defense attorney. My husband’s
parents came to watch me for the first time before going to their airport having visited
for the holiday weekend. Nothing seemed out of ordinary during the morning session,
even the Medina-Perez matter.

3. When the Commonwealth v. Medina-Perez case was first called at approximately

10:34 a.m., I appointed the duty bar advocate (“bar advocate”) to represent the
defendant. I also provided a Spanish language interpreter (the “interpreter”) to assist in
communication. The defendant came before me for arraignment on a charge of being a
fugitive from justice based on a warrant issued eight years earlier for a drunk driving
case in Pennsylvania, and two new counts of controlled substance violations in
Massachusetts. The prosecutor handling the matter advised me that she was not seeking
bail on the controlled substance charges but would request that the defendant be held
without bail on the Pennsylvania warrant. The defendant denied that he was the same
person subject to the Pennsylvania warrant and therefore the case was recessed and put
on for a second call so that his attorney could investigate the question of identification.
During the second call the prosecutor provided a copy of the booking photograph from
Pennsylvania. The bar advocate expressed her opinion that the photograph
accompanying the Pennsylvania warrant was not that of the defendant, Medina-Perez,
who continued to maintain that he was not the person sought by the warrant. I also
believed that the photograph was inconclusive as to whether or not it resembled the
person before me. The duty defense attorney requested time to obtain information from
the defendant’s employer and to review the “Triple I” form. I again recessed the case and
scheduled it for a third call to allow further time for the attorney to investigate her
client’s identification.

4. A copy of the transcript attached to the Commission’s document as Appendix D

is accurate but does not include a brief third call of the case that occurred before the
lunch recess, at which Medina-Perez’s attorney stated that she had just sent a fax
regarding his identification, or a “fourth call” two minutes later, at which time the duty

22
defense attorney requested that the next call of the case be delayed after the lunch recess
until 2:15 p.m. because she had a medical appointment. Based on these statements, I
believed that the duty attorney was actively investigating Medina-Perez’s identification,
and I expected that she would appear for her client in the afternoon session. I went to
lunch expecting Attorney Bostwick would provide additional information when I
returned.

5. During the lunch recess I learned from the First Assistant Clerk, who was serving
as the session clerk that day, that ICE agents were present at the Newton District Court
with a civil immigration detainer that authorized the ICE agents to take custody of the
defendant if he were released from custody. There had been no mention of ICE all
morning.

6. The clerk explained to me that the presiding justice had a policy that ICE agents
were not allowed in the courtroom and asked what I wanted to do concerning the agents.
Upon learning this information, I questioned the constitutionality of the Newton District
Court policy knowing that courtroom proceedings are open to the public and therefore
spent the next hour looking for guidance. I searched my training materials, other
materials in the judges’ lobby, inquired with the First Assistant Clerk, and finally called
the Executive Office (“EO”) of the District Court for guidance. The Lunn policy was
read to me by one of the EO’s attorneys and subsequently emailed to me. I was advised
that the Newton District Court policy was not inconsistent with the Trial Court’s Lunn
policy and could be followed. I advised the session clerk that I would adhere to the
Newton District Court policy. I believe that the clerk directed the ICE agent to wait
outside the courtroom. I never personally saw or spoke with any ICE agent on April 2,
2018.

7. The Lunn policy provides, in addition to the excerpt in Paragraph 7 above, that
the detainee should be taken by ICE from the lockup, not from a public place. The
lockup in the Newton District Court was downstairs, which is where Medina-Perez went
when the final hearing ended. The policy states that, “[T]o the extent possible, court
security personnel should require that DHS officials transport any individuals taken into
custody through the prisoner transport entrance and avoid taking the individual through
the public areas of the courthouse.”

8. During the lunch recess, I was informed that a new attorney had filed a general
appearance of counsel as a private attorney to represent the defendant in the criminal
matter, not a limited appearance for arraignment only.

9. I returned to the bench expecting that Medina-Perez would probably be held on

the Pennsylvania fugitive of justice charge as the ADA had requested prior to lunch, but I
was open to further argument.

23
10. Because I had needed time to research the Newton District Court and Lunn
policies with the EOTC, the final hearing in the matter began late at approximately 2:48
p.m. The newly retained defense counsel, David Jellinek, asked for a sidebar
conference, which was not an uncommon request, and I conducted a recorded sidebar
conference with the him and the prosecutor. At the time of the sidebar conference,
Medina-Perez was in the glass-enclosed custody dock on the other side of the courtroom
from the sidebar, and the interpreter was standing outside the glass, inches from Medina-
Perez. To my surprise, David Jellinek said in essence that he and the ADA now agreed
that Medina Perez was not the person sought by Pennsylvania and thus that she would
move to dismiss the fugitive from justice charge and would not seek bail on the
remaining Massachusetts’ controlled substances charges. He also added that he did not
think Medina-Perez was the person named in the ICE detainer. He was concerned that
ICE would take the defendant into custody – and be taking the wrong person.

11. Given the ADA’s change of opinion as to Medina-Perez’s identity, new defense
counsel’s argument, and my own concerns regarding his identity, I felt at the time that I
had a responsibility to make a reasonable effort to try to determine Medina-Perez’s true
identity, or at least to allow the parties adequate time for a fuller further investigation,
particularly given David Jellinek’s having been in the case for an hour or so. I therefore
suggested that we detain Medina-Perez overnight, believing that he would be transported
to Billerica, held there, and returned to the Newton District Court the following morning.
I thought that the plan would give everyone just a little more time to address the issue
since Medina-Perez would be back in court in the morning.

12. For some reason that was inexplicable to me at the time, David Jellinek resisted
what I thought was a good suggestion for his client; he claimed ICE might get him if I set
bail and he was later released from Billerica. That made no sense to me because I did not
intend to set bail for an overnight hold, but rather intended to detain him without bail,
believing that he would be transported to Billerica, held there, and returned to the Newton
District Court the following morning. I now understand that once I accepted the ADA’s
position that Medina-Perez was not the person sought by Pennsylvania, I did not have
authority to hold him overnight for identification purposes post arraignment, but without
that understanding, it seemed like a reasonable course to allow David Jellinek time to
investigate while keeping Medina-Perez secure in state, not federal, custody.

13. Defense counsel then asked if we were on the record, which I took as a request to
go off the record. In all my years as both a prosecutor and a defense attorney, especially
in the BMC courts, judges often allowed requests to go off the record and I allowed this
one without reservation, as I was unaware of District Court Special Rule 211. But,
despite my own past experience concerning requests to go off the record, I realize and
acknowledge that I violated a rule of the district court and accept responsibility for that.

14. During the 52 seconds off the record conversation, I do not recall the defense
attorney saying anything more than what he said on the record, other than the request to
accompany his client downstairs with the interpreter, which I put on the record
afterwards. However, the prosecutor, who was present at sidebar both on and off the

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record, told the ICE agents that she expected that Medina-Perez would be coming out the
front door of the courtroom. At no time did I understand that the new defense attorney
intended to have the defendant released through the back door if I permitted him to
accompany the defendant to the lock up with the interpreter. To this day it is not clear to
me what the defense counsel claims to have said that alerted me to his plan, but I did not
hear or understand anything he said which revealed his scheme.

15. I do not believe that David Jellinek needed my approval to speak with his client
with the interpreter’s assistance in the lockup area as that occurs regularly. But I was not
confident that the ICE agents would either delay their seizure of Medina-Perez to permit
an attorney-client conference, or permit the conference to take place once they had taken
him into their custody and I wanted to protect Medina-Perez’s right to counsel by
ensuring that the conference would occur before he was taken into ICE custody as I
expected that Medina-Perez would be released on personal recognizance from the lock-
up into ICE custody.

16. When the courtroom recorder was turned on again after the off-the-record
sidebar, at approximately 2:51 p.m., the hearing in the Commonwealth v. Medina-Perez
matter continued in open court. The prosecutor indicated that her intention was to
dismiss the fugitive from justice charge, and not to seek bail on the Massachusetts
charges.

17. The new defense attorney then stated, “I would ask that he, uh - I believe he has
some property downstairs. I’d like to speak with him downstairs with the interpreter if I
may.” I agreed and said “That’s fine. Of course.” I then conducted the arraignment of
Medina-Perez and gave him statutory warnings, including the Chapter 111E rights which
I said his attorney would further explain to him. The session clerk confirmed that the
defendant had been ordered released and I reiterated that the defendant’s attorney had
“asked if the interpreter can accompany him downstairs, um, to further interview him –
and I’ve allowed that to happen.”

18. In response to a reminder from the clerk that the ICE agents were present “to visit
the lockup.” I responded, “That’s fine. I’m not gonna allow them to come in here. But
he’s been released on this” – meaning ICE could not come into the courtroom for that
purpose, following the presiding justice’s policy, but very clearly that Medina- Perez
“was released,” meaning he could be taken into custody in accordance with the Lunn
policy from either of two other entrances to the lockup. The proceeding in the
Commonwealth v. Medina-Perez matter then concluded at approximately 2:54 p.m. That
is the last contact I had with the case that day. I assumed that the defendant was in the
custody of ICE. I was not aware until two days later when I returned to the Newton
District Court that he had not been taken into ICE custody.

19. When I later learned from the First Justice of the Newton District Court that
Medina-Perez had been released out the back door, I still did not know that the defense
attorney and the court officer had made a plan before the afternoon court session and
executed the plan downstairs after the court appearance. The ICE agents had had

25
unobstructed access to the lockup entrance either through the public stairwell or the
sally-port entrance; for whatever reason, they chose not to use it. It is my understanding
that instead, they spoke with the prosecutor, who had also been present at both the
recorded and unrecorded sidebar conferences. The prosecutor told the ICE agents that
she expected Medina-Perez would come upstairs to the front door. The ICE agents and
the prosecutor waited in that public area for Medina-Perez to appear. When he did not
appear, the prosecutor went to inquire about his whereabouts and learned that he had
been released from the sally-port entrance.

20. On April 3, 2018, the defense attorney approached the First Justice of the Newton
District Court and spoke with her about the Medina-Perez case. He did not inform the
First Justice that any proceedings had occurred off the record, revealed that he was
notified of the escape but did not reveal his role in planning and assisting Medina-
Perez’s escape, and did not claim to her that I was aware of his plan to allow his client to
avoid ICE. The First Justice also spoke with the session clerk about the previous day’s
events.

21. Over the following few weeks, I discussed the circumstances with three different
senior judges: the Newton presiding justice, the regional justice and the chief justice.
Each of the discussions were different. I was truthful with each, and answered different
questions posed by each, since they all expressed different concerns consistent with their
roles. None of them suggested that David Jellinek or anyone else had implicated me in
Medina-Perez’s escape. The Chief Justice, in particular, told me not to worry about this
matter any further and that it was a good learning experience.

22. I continued to work as an associate justice of the district court until April 25,
2019 when a federal grand jury returned indictments against me and the court officer
based on the events of April 2, 2018. David Jellinek was granted immunity for his
involvement and testimony. I was suspended from my judicial duties.

23. On September 22, 2022, I entered into a joint agreement with the United States
Attorney, in which I stipulated to uncontested facts regarding the events of April 2, 2018,
and agreed to refer myself to the Commission on Judicial Conduct. Based on that
agreement, the United States Attorney moved to dismiss the charges against me, and the
United States District Court so ordered on September 23, 2022. (A copy of the motion to
dismiss, with attached agreement between me and the United States Attorney and
agreement of facts, is attached to the CJC statement of allegations as Appendix E).

24. Although I had no knowledge of David Jellinek’s plan, and no intent to assist in
Medina-Peter’s escape, I regret the harm that my handling of the matter caused the
reputation of the Massachusetts judiciary.

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The Respondent
SHELLEY M. RICHMOND JOSEPH
By her Attorneys,

/s/ Michael B. Keating

__________________________________
MICHAEL B. KEATING
Meehan Boyle Black & Bogdanow, P.C.
100 Cambridge Street, Suite 2101
Boston, Massachusetts 02114
617 523-8300
[email protected]

/s/ Thomas M. Hoopes

_____________________________________
THOMAS M. HOOPES
ELIZABETH N. MULVEY
Libby Hoopes Brooks & Mulvey , P.C.
260 Franklin Street, Suite 1920
Boston, Massachusetts 02110
617 338-9300
[email protected]
[email protected]

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