Ellen Barry

Her face was tear-streaked and bore an expression of helpless dismay, as if she were struggling to take in the upside-down world in which she was the defendant.

In April, she and a court officer, Wesley MacGregor, were accused of allowing an immigrant to evade detention by arranging for him to sneak out the back door of a courthouse.

The federal prosecutor in Boston took the highly unusual step of charging the judge with obstruction of justice, setting off a debate over whether and how states can refrain from carrying out President Donald Trump’s immigration policy.

Massachusetts has been at the forefront of the sanctuary city movement, passing a series of legal rulings that constrain Immigration and Customs Enforcement from detaining immigrants in courthouses.

The judge’s supporters say she is no crusader, but an inexperienced judge who stumbled into a bitterly contested area of the law. They warn that if the case goes forward, it will open the door for prosecution of other judges, undercutting their independence, as the country grapples with its deep divisions over immigration.

Joseph has refused a plea deal that would have allowed her to avoid prosecution if she admitted violating federal law, signaling that she is prepared to go to trial in a case that could drag on for years.

For a federal prosecutor to indict a state judge is so rare that, in search of a Massachusetts precedent, observers have cast back to 1787, when Judge William Whiting was removed from the bench for defending a farmer’s rebellion against state tax collectors.

Some in Massachusetts’ sprawling legal and immigration rights community kept a distance from Joseph, in part because the evidence against her was damning: Before allowing the man to be led out of her courtroom, Joseph could be heard on an audio recording instructing the court clerk to switch off the recorder in an apparent effort to conceal what they were saying.

But legal heavyweights have rallied in her defense, arguing that the U.S. attorney for Massachusetts, Andrew E. Lelling, has crossed a line by indicting a state judge, inviting the use of federal power to intimidate state officials into compliance.

This summer, the state Supreme Judicial Court ordered the restoration of her $184,000 salary while the case is pending, for fear that the threat of being stripped of a paycheck would make judges hesitant to challenge prosecutors, diminishing the “overall independence of the judiciary.”

Daniel Medwed, a law professor at Northeastern University, said, “What Joseph’s behavior has become is a rallying cry, not just for judicial independence, not just for states’ rights, but also a form of civil disobedience, that we, as state duly appointed judges, won’t be cowed by federal prosecutors.”

A spokeswoman for Lelling declined to comment on the pending case.

Through her lawyer, Joseph also declined to comment, as did her lawyer, Thomas Hoopes. Joseph has pleaded not guilty, as has MacGregor.

“This prosecution is absolutely political,” Hoopes told reporters in April. “Shelley Joseph is absolutely innocent.”

Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a Washington-based organization that favors reduced immigration, said the judge is the one propelling the case forward by choosing not to accept the plea deal.

“They just want to make it clear that what she did was wrong, but if she remains defiant, it kind of boxes them into a corner,” she said. “It’s just a question of how long she wants to draw it out.”

She added, “Maybe she thinks of herself as a martyr for the cause.”

Mounting Tension

Joseph, who joined the bench five months before the incident, was not well known or particularly outspoken.

After a career as a prosecutor and defense attorney, she had been nominated by the state’s Republican governor, Charlie Baker, as an associate justice of the Framingham District Court, hearing misdemeanors and minor felonies. The main indication of her politics was a stint working on Bill Clinton’s presidential campaign and a term on the Democratic State Committee in the 1990s.

At her nomination hearings in 2017, colleagues spoke of her compassion and, as one put it, her “belief in human goodness.” The newly minted judge was beaming and a bit nervous, kneading her fingers in her lap under the table. She spoke of lessons she had learned from her mother.

“She taught me to be an advocate, to stand up for what is right, and never to compromise my values,” she said. “The most important thing she taught me was to be nice.”

She was entering a court system that was under strain, particularly around the bitterly contested legal ground of ICE detentions.

“Massachusetts courts blatantly and willfully disregard ICE’s requests to detain aliens on a daily basis, and cannot be relied upon to honor our requests,” an official in ICE’s Boston field office complained in internal emails.

One person tasked with pushing back against the state’s left-leaning trends was Lelling, the U.S. attorney appointed under Trump. Lelling promised, right away, that Massachusetts would see his office take a tougher stance on immigration.

“Some of our judges are motivated by their personal conclusions that it’s unfair in certain instances to deport someone,” he told The Boston Globe. “That’s not law, just their personal feelings.”

A 52-second gap

Tension over the question was in the background when an ICE officer arrived at the Newton District Court at 9:30 a.m. on April 2, 2018, with orders to detain Jose Medina-Perez, an unauthorized immigrant from the Dominican Republic.

Newton District Court is a sleepy, two-room courthouse in a wealthy, liberal suburb. On a recent afternoon, a judge hearing a woman’s shoplifting case admiringly noted her degree from the Harvard Kennedy School of Government.

“This is Newton,” joked its clerk magistrate, Henry Shultz, “where you’re considered a dropout if you only have a master’s degree.”

Joseph was a visiting judge in the courthouse, occasionally hearing cases on Tuesdays.

Medina-Perez, who also went by the name Oscar Peguero, had been arrested in Newton on narcotics charges and had been linked to an 8-year-old warrant for drunken driving from Pennsylvania. He had been deported twice from the United States, and the second time, in 2007, he had been prohibited from entering the country for 20 years, according to the federal indictment.

At 12:04, while Medina-Perez was sitting in the glass dock to the right of her bench, Joseph instructed the court clerk to ask the ICE officer to leave the courtroom and wait in the lobby outside. According to defense briefs, the judge was complying with established policy at the Newton courthouse at the time.

Only later would it become clear what had happened inside, as Joseph held a sidebar conference with the assistant district attorney and Medina-Perez’s defense attorney. Both agreed that Medina-Perez was not the man wanted in Pennsylvania.

He could have been released on bond from the jail in Billerica, Massachusetts, but the defense attorney, David Jellinek, jumped in.

Defense attorney: There is an ICE detainer. So if he’s bailed out from Billerica when he goes back there, ICE will pick him up.

Joseph: ICE is gonna get him?

Defense attorney: Yeah.

Joseph: What if we detain him?

Defense attorney: Are we on the record?

Joseph: (Clerk,) can we go off the record for a moment?

Clerk: What’s that?

Joseph: Are we off the record?

Clerk: No, we’re on the record.

Defense attorney: Can we go off the record for a moment?

At this point, according to the indictment, the clerk switched off the courtroom recorder for 52 seconds, in violation of Massachusetts courtroom rules. When the recording picked up again, the three resumed their conversation, agreeing to release Medina-Perez — but not, as is standard, through the courtroom lobby. (Jellinek declined to comment for this article.)

Defense attorney: 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.

Joseph: That’s fine. Of course.

Defense attorney: Thank you.

Seven minutes later, the indictment reflects, Medina-Perez departed through the courthouse’s rear exit, which opens into a public parking lot. But this was not communicated to the ICE officer, who remained in the lobby. The courthouse closes its doors at 4:30 p.m., seven hours after the ICE officer showed up.

He departed empty-handed and, presumably, frustrated.

A rapid escalation

Word of what had happened moved quickly up the chain of command, reaching Washington in a matter of hours, said Thomas D. Homan, who was the acting director of ICE at the time.

“I heard about it the same day it happened,” Homan said. “I was dumbfounded. I said, ‘Well, now, things are going a bit too far.’ For an officer of the court to help someone escape ICE arrest. I’ve done this 35 years and never seen anything like that.”

Informed of the decision by Matthew Albence, then the director of enforcement removal operations and now ICE’s acting director, Homan said he immediately began asking about legal recourse.

“I remember I got angry,” he said. “I asked, ‘Is there a legal action I could take?’ I was looking to do whatever I could do to make that happen.” He said he considered it a clear case of obstruction of justice, but that his agency did not have the power to bring charges. “We’ve got to find a U.S. attorney who is willing to indict. I talked to my legal staff, they said it would be up to the U.S. attorney’s office.’”

The idea of such a prosecution was popular in Washington.

In 2018, Trump publicly urged Jeff Sessions, who was then the attorney general, to bring obstruction of justice charges against Mayor Libby Schaaf of Oakland, California, for warning her constituents of an impending ICE raid.

In an interview with WGBH radio, Lelling, the U.S. attorney, said that Joseph’s case was not the first time he had heard of a judge impeding a detention, but that it stood out because of the quality of the evidence.

“We’ve heard rumors of, you know, judges doing this or that, I don’t want to identify them,” he said, “but this was the first time we have come across an instance where, one, as alleged in the indictment, we thought it was clearly criminal, and two, we think we can prove it.”

Lelling said the case should not be viewed within the context of the legal tension over immigration.

“To me, it’s not an immigration case,” he said. “I know that seems counterintuitive to people. It’s a rule of law case. You have, the indictment alleges, a sitting judge who helps a federal fugitive evade capture by letting him out the back door. You can’t do that.”

Even some immigration advocates were cautious about defending Joseph.

“We were quiet on this,” said Iván Espinoza-Madrigal, the executive director of Lawyers for Civil Rights, which filed a lawsuit to stop ICE courthouse detentions.

“There are elements of this that have a very bad look,” he said. “People are sympathetic with Judge Joseph, but at the same time there are elements of what happened in the courtroom that most people wouldn’t defend. I wouldn’t defend turning off the recorder in the courtroom.”

Carol Ball, a retired Superior Court judge who was making the rounds of retired judges, seeking support for Joseph, encountered that reaction in some cases.

But she said that was missing a much more important point: Judges’ behavior in the courtroom is typically subject to judicial discipline, not federal prosecution.

For a federal prosecutor to indict a sitting judge is crossing a line, she said.

“If she did what they say she did, she does deserve to be dealt with,” she said. “Nobody is saying, ‘It’s fine, no problem.’”

She said federal immigration authorities were “furious” at the Massachusetts Supreme Judicial Court, which had recently ruled that state courts could not hold subjects purely on the basis of ICE detainers.

Massachusetts “is the home of all those liberals who hate Donald Trump, you know what I’m trying to say?” she said. “You don’t indict a sitting judge without getting direct clearance from Washington.”

Joseph, she said, was simply not prepared for the battleground she was walking into.

“She was a baby judge, caught in this swirling vortex of change,” she said.

In the months that have passed, Joseph has figured regularly in the Boston newspapers.

In the Globe’s letters column, one admiring reader put her in a category with Henry David Thoreau and Martin Luther King Jr., as an icon of civil disobedience who “knew that there were consequences for disobeying the law” and “accepted them.”

The right-wing radio host Howie Carr, writing for The Herald, has derided her as “a lawless, privileged moonbat judge” who is “hoping for an O.J. Simpson-like jury nullification from 12 Democrats afflicted with Trump Derangement Syndrome.”

As for the judge herself, she has been silent.

Alicia Shems, a friend from high school, said it had been a painful period for the judge, who has spent the past decades consumed with her work.

She said Joseph at first struggled to fill her days, which Shems described as “empty and terrifying.”

To settle her mind, Shems said, Joseph is training for her fourth marathon, running so much and eating so little that she has lost 10 or 20 pounds.

As for the threat of a prison sentence, she said, “she can’t think about that or she won’t be able to function.”

This article originally appeared in

Judge Who Let Man Elude ICE Is Now in Dock

NEWTON, Mass. — When she was brought before a court this spring, charged with the federal crime of obstruction of justice, Judge Shelley Joseph did not look like a rebel.

With her mass of blond hair and comfy sandals, McLean, 60, was the picture of Down East gentry, the same woman whose rose garden had once been featured in Maine Home &amp; Design magazine.

Addressing a rapt audience of around 50 people, she described living for many years in fear of her husband’s bursts of rage. She said a knot of anxiety would form in her stomach when she put his dinner on the table, in case it wasn’t hot enough when he appeared.

She displayed a typed letter which, she said, he forced her to sign in 1994, declaring that fights they had were her fault, the result of her premenstrual mental disturbances.

In the later years of the marriage, “the worst of the physical violence didn’t really occur,” she said. “But I always know it could occur. He would say, ‘Don’t get me started,’ and we both knew what that meant.”

That her ex-husband is a celebrity — Don McLean, the 74-year-old singer-songwriter most famous for the 1971 folk-rock ballad “American Pie” — did not need to be pointed out.

The public meltdown of the McLeans’ marriage began in January 2016, when Patrisha McLean made a 911 call to police, and her husband was arrested on suspicion of domestic violence. He denies assaulting his wife at any time in the marriage.

The case ended in a muted fashion. Originally charged with six misdemeanors, he pleaded guilty to four as part of a plea agreement in which one of the four charges, domestic violence assault, would be dismissed after a year. For the remaining three — one count each of criminal restraint, criminal mischief and making domestic violence threats — he paid around $3,000 in fines and was not sentenced to any jail time.

But the case has had a ripple effect in Maine, a state where domestic abuse accounts for around half of all murders and assaults.

Patrisha McLean has reinvented herself as an organizer for abused women in the state, creating a traveling exhibit, “Finding Our Voices.” In the exhibit, women — some of them, like her, from wealthy and prominent families — speak out about violence within their relationships, in a small-town echo of the #MeToo movement.

Don McLean has repeatedly tried to block publicity about the project, threatening a series of local newspapers with lawsuits for giving it coverage. So far, these efforts have not worked: Bill Nemitz, a columnist for The Portland Press-Herald, described Don McLean’s protests as the exhibit’s “most powerful promotional tool.”

At the Holocaust and Human Rights Center in Augusta on Oct. 10, the exhibit’s host read aloud, to laughter from the audience, the contents of a letter from Don McLean’s public relations firm, warning that “any display of doctored photos and untruthful information concerning the details of a 2016 incident in their home may be adjudicated as defamation toward Mr. McLean.”

The exhibit represents something new and risky: A large number of women coming forward, using their own names and photographs, often in their own communities, to describe abuse in their relationships.

“This is the deepest, darkest part of my history I’m admitting to,” said Amber Hatch, 30, a prison therapist who said she moved to another part of the state to escape a violent boyfriend. “It’s ugly and it’s violent and it’s horrible, and it’s a conversation we all need to have.”

By appearing in public, “we are all at risk,” she said. “We could all be at risk. Pat is a perfect example.”

Beside her sat a woman with a blond pixie cut, who said her ex-husband had shown up at the end of her driveway the night before, in violation of a protection order. She said she took the episode to be a warning against appearing on the panel.

“I expect that there will be repercussions,” she said.

Patrisha McLean’s project marks a departure from a tradition among outreach workers, who were trained to protect victims’ identities from exposure, said Dorathy Martel, who heads Next Step, a domestic violence service agency in Ellsworth.

“We joke about it, but in Maine, everybody knows everybody,” she said. “If you live in a very small town, and the person abusing you is the brother of a police officer, or a town clerk, you’re going to think twice about whether it’s safe to reach out for help. There is a sense that you can’t be invisible here.”

McLean, she said, had achieved startling success in persuading women to come forward, perhaps because of the nationwide groundswell of anger that followed the Harvey Weinstein scandal.

“I think a lot of women are really angry right now,” Martel said. She added that it made her a little nervous to see them go public.

“There is definitely a risk when you call someone out for behaving abusively,” she said. “It is likely to make them angry. Personally, as someone who has been working with survivors, I support their right, and choice, to speak out. And I do worry. I think of it as potentially poking the bear.”

Though the McLeans divorced in 2016, their lives remain intertwined, not least because they are both residents of Camden, which has a population of just under 5,000.

Don McLean still lives in the 175-acre estate, Lakeview, where the two raised their son and daughter, now in their 20s.

His ex-wife’s exhibit, first staged in Camden’s public library, features a description of the 2016 incident, in which she said he pinned her to a bed until she broke free and called 911 from the bathroom. She said she was on the phone when he shoved the door open, breaking a latch.

In an interview by telephone from Oklahoma, where he was giving a concert, Don McLean said that his ex-wife’s exhibit featured “horrible lies about me,” and that medical records would show that she had no injuries after the 2016 incident.

“I never assaulted anyone in my life, especially my wife, who was treated like a queen,” he said. He added that only three misdemeanor charges remain on his record, which he described as “about the same as a speeding ticket.”

“I will not be defamed and lied about,” he said. “That’s an aspect of these movements out there — not everybody tells the truth. And Patrisha is not telling the truth.”

He said publicity around his arrest had won for him the sympathy of fans who “are divorced and realize that people have arguments.”

“My career has been helped by this,” he said. “I am more famous, and I have more work than I have ever had.”

He disputed his ex-wife's characterization of their marriage, saying she had enjoyed luxury, social prominence and a home that belonged, as he put it, “in a Merchant-Ivory film.”

“This is so far away from the life we had,” he said of her account. “This life that we had was her in a long red dress, going through her beautiful rose garden sipping Champagne, while the people that worshipped her and her information about flowers were following along. You can see it in the movie about me called ‘American Troubadour.’”

The trouble began, he said, when “I stopped loving her.”

“Patrisha is a scorned woman,” he said.

Patrisha McLean, for her part, said her husband’s arrest “lifted the veil,” prompting a long series of women — her hairdresser, her dental hygienist, a woman at the farmers’ market — to reach out to her with their own stories about domestic violence in their lives.

“I had never heard of domestic violence in Camden,” she said. “It was never in the paper. And all of a sudden this happened to me, and it was everywhere.”

Those encounters inspired her to organize the exhibit, recruiting 19 women to pose for photographs and record their stories. She said she made no effort to independently verify their accounts, because, as she put it, “In domestic abuse, they say you should believe the woman.”

When it opened at the Camden library, the exhibit drew surprisingly large crowds, said Nikki Maounis, the librarian, and it featured “familiar faces.”

“That was, for me, a little disturbing,” she said. “To read about people who use the library was kind of a knock on the side of the head.”

Patrisha McLean said that on the day the exhibit opened in Camden, she was so nervous about potential repercussions that after she spoke, she went to the library’s bathroom and vomited.

The anxiety, she said, has never entirely lifted.

“I will never stop worrying,” she said, adding that her ex-husband’s protests over the exhibit were “a perfect example of how you can never really leave, once you’ve become attached to someone like this — they just don’t want to give up control. ”

Besides, she added, since they still live in the same town, “It’s difficult to know when I might see him in the post office.”

In Maine, a Celebrity Domestic Violence Case Continues to Send Out Ripples

AUGUSTA, Maine — When the audience had gotten settled in their chairs, balancing Ritz crackers and Styrofoam cups on their laps, Patrisha McLean got to her feet and began to talk about what went on behind closed doors during the 29 years when she was married.

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Ellen Barry

Articles written by the author

Judge Who Let Man Elude ICE Is Now in Dock

In Maine, a Celebrity Domestic Violence Case Continues to Send Out Ripples