Criminal Cases, Collateral Orders & Rights to Avoid Trial

One requirement for appeal via the collateral-order doctrine is that the district court’s order be effectively unreviewable in an appeal after a final judgment. A prime candidate for satisfying this unreviewability requirement are immunities from suit. If a defense protects a litigant from the burdens and uncertainties of trial, it must be vindicated immediately if it is to be vindicated at all. Courts have accordingly held that several kinds of immunities from suit are immediately appealable via the collateral-order doctrine.

Last month, this approach to immunity appeals ran into the collateral-order doctrine’s special strictures in the criminal context. In United States v. Joseph, the First Circuit said that in criminal cases the right to avoid trial must come from a statutory or constitutional right to avoid trial. The criminal context is thus more strict than the civil context, in which common law rights to avoid trial (such as qualified immunity) can warrant an appeal. The immunity at issue in Jospeh—judicial immunity—comes from the common law. The First Circuit accordingly held that the denial of judicial immunity is not immediately appealable in a criminal prosecution.

The Joseph Prosecution

The defendants in Joseph allegedly assisted an undocumented immigrant in evading Immigration and Customs Enforcement custody. The immigrant was arrested by state police in Massachusetts. Because the arrestee had been barred from reentering the United States, ICE asked the Massachusetts authorities to turn him over to ICE upon his release from state custody. But when the arrestee appeared in court, the trial court judge ordered an ICE agent to leave the courtroom. Then, rather than release the arrestee through the courthouse lobby (as the court clerk had told the ICE officer he would), the clerk allowed the arrestee to leave via the courthouse’s back door.

The judge and clerk were charged with a variety of crimes, including obstruction of justice. The judge moved to dismiss the indictment on judicial-immunity grounds. And both defendants challenged the indictment on constitutional and factual grounds. The district court rejected these challenges, and both defendants appealed.

Statutory & Constitutional Rights to Avoid Trial

The First Circuit dismissed the appeals. The only proffered ground for appellate jurisdiction was the collateral-order doctrine. That doctrine deems certain kinds of district court orders final when the order (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. None of the issues raised on appeal satisfied the third requirement.

Judicial immunity was the major issue. And it was a prime candidate for appeal, as judicial immunity is normally an immunity from suit. But the First Circuit concluded that judicial immunity did not provide a sufficient right to avoid trial in the criminal context. The court of appeals read the Supreme Court’s decision in Midland Asphalt Corp. v. United States to mean that in the criminal context a right to avoid trial must “rest[] upon an explicit statutory or constitutional guarantee that trial will not occur.” Judicial immunity is not based in any statutory or constitutional right to avoid trial. It comes from the common law. So the denial of judicial immunity was effectively reviewable in an appeal after a final judgment.

The defendants’ constitutional challenges fared no better. The defendants argued that their prosecution violated the Tenth Amendment’s prohibition on federal authorities’ commandeering state officials. But there was no right to avoid trial in the Tenth Amendment. As for the defendants’ more general constitutional challenges—that the government’s overbroad reading of the obstruction statute implicated federalism and due process concerns—there was again no statutory or constitutional right to avoid trial. And to the extent that the defendants’ challenged the factual sufficiency of the indictment, “an order denying a motion to dismiss an indictment for failure to state an offense . . . may be reviewed effectively, and, if necessary, corrected if and when a final judgment results.”

United States v. Joseph, 2022 WL 592904 (1st Cir. Feb. 28, 2022), available at the First Circuit and Westlaw.