Commission urges public reprimand for Judge Shelley Richmond Joseph over off‑the‑record sidebar and ICE comments

The Commission on Judicial Conduct told justices at oral argument that Judge Shelley Richmond Joseph should receive a public reprimand for creating an appearance of impropriety after an off‑the‑record sidebar and a remark suggesting detaining a defendant overnight in the context of Immigration and Customs Enforcement (ICE).

"A judge must read the rules, must learn the rules, and comply with the rules," Special Counsel Judith Fabricant told the court, summarizing the commission's January report and the hearing officer's October recommendations. Fabricant said the commission adopted the hearing officer's recommended findings and the recommended sanction of public reprimand, but diverged on two legal conclusions: that violating district court Rule 2.11 (going off the record) also violated Rule 1.1 of the code of judicial conduct, and that the judge's suggestion to detain the defendant was not merely an error of law but a significant component creating the appearance she would use criminal process to shield a person from ICE.

Fabricant pointed the court to an audio and transcript excerpt the commission placed in appendix G (pages 265–271) and read language she described as central: discussion that ICE was present, counsel's comment that ICE would pick the defendant up if he walked out the front door, and Judge Joseph's line, "The other alternative . . . hold till tomorrow." The commission argued that, taken together with the off‑the‑record discussion, the remark created the appearance of assisting counsel to avoid ICE.

Defense counsel Elizabeth Mulvey, representing Judge Joseph, acknowledged that her client went off the record but asked the court to judge her on the totality of the record and the context of the moment. "Judge Joseph has owned, from the beginning, the fact that she went off the record," Mulvey said, but she added that district court supervisors had treated the episode in 2018 as an educational matter and that the federal indictment that later followed was not conduct the judge committed on that day.

Mulvey urged the justices not to single out Judge Joseph for a practice she described as historically common in lower courts, and she argued the transcript supports a benign reading of the "hold till tomorrow" language — namely, affording counsel time to confirm identity so ICE does not take the wrong person. Mulvey warned that disciplining Judge Joseph for an inadvertent lapse would send a chilling message to about 400 Massachusetts judges who must make numerous decisions daily without the benefit of law clerks or extended research time.

The justices pressed both sides on legal limits and practical consequences: whether violating a local rule automatically imports into Canon 1.1 of the code (as the commission asserts), whether mens rea is required for such a violation, and whether a judge may permissibly delay a defendant's release to allow counsel to address a pending identity question. Fabricant emphasized competence under Rule 2.5A and the need for a clear message that judges stay on the record and remain within their authority. Mulvey argued the hearing officer found no willfulness and urged the court to weigh intent and precedent in determining an appropriate sanction.

The session reviewed the commission's three proposed messages to the judiciary — know the rules, stay on the record in criminal matters, and stay within judicial authority — and the defense's counterproposal that the court avoid setting novel disciplinary standards for conduct historically common in arraignments and community courts. The commission relied in part on recorded sidebar excerpts in appendix G and the hearing officer's report from October; the hearing itself had been a six‑day public proceeding the prior June, and the commission's report was filed in January.

No ruling was issued during the arguments recorded in the transcript. The court heard extended argument from both the commission and the defense and posed detailed questions about legal authority for holding defendants pending further investigation, the interaction with ICE detainers, and the appropriate disciplinary message to send to the bench.