Explore this topic:
In Tucson, the criminal hearing process begins at 9 a.m. in the Evo A. DeConcini U.S. Courthouse. The defense attorneys arrive in the second-floor courtroom to meet with their clients. It is common for one lawyer to represent six clients per day.
In the morning the courtroom is treated as a pseudo-jail because there is not enough space to provide private sessions between client and lawyer. The lawyer gets between 20 and 30 minutes to explain the charge brought against the client, the potential sentences, and the client’s legal options — and to offer legal advice. The defendants and lawyers are given a short reprieve before they appear again in court for the defendants’ combined initial appearance, change of plea hearing and sentencing hearing.
Court commences promptly at 1:30 on this afternoon with U.S. Magistrate Judge Thomas Ferraro of the U.S. District Court in Tucson calling each defendant by name.
“Presente,” the defendants respond one by one. Of the 70 people processed for court on May 27, 39 plead guilty to a misdemeanor illegal entry charge (United States Code, Title 8, 1325), 28 plead guilty to an illegal re-entry felony charge (United States Code, Title 8, 1326) and three are dismissed prior to the hearing.
Arizona is divided into two Border Patrol sectors, Tucson and Yuma. Tucson Sector agents patrol the eastern half of the state, starting in Ajo and stretching across Nogales, Tucson, Douglas and Patagonia and other cities and towns along the border. The Yuma sector patrols the western side of the state from the Colorado River into California’s Imperial County.
The Tucson Sector is the busiest in the nation. On any given day Border Patrol agents will apprehend between 400 and 600 illegal immigrants, of whom about 10 percent will be processed for Streamline, said David Jimarez, the Tucson Border Patrol’s public information officer.
There are three other methods of removing an illegal immigrant from the country aside from Operation Streamline in Tucson, Jimarez said. It is up to Border Patrol agents to decide how an illegal immigrant will be processed and deported, according to the rules and regulations stipulated by the District of Arizona U.S. Attorney’s Office.
One process is an “expedited removal,” in which an agent formally removes the illegal immigrant from the country. To qualify for an expedited removal, the illegal immigrant must have entered the U.S. within the past 14 days and must have been apprehended within 100 miles of the border, Jimarez said.
Another option is the “Alien Transfer and Exit Program,” which ships illegal immigrants to California for a voluntary return. This program buses about 94 illegal immigrants per day from Tucson to a port of entry between Mexico and California. Candidates for this program are generally males over 18 who are not traveling with their families.
Another 30 illegal immigrants a day will receive a “notice to appear,” which means they will have to go before an immigration judge within 48 hours of receiving the notice. The plea is processed in a “quick court,” where expedited immigration hearings take place. Only adults who are not eligible for asylum or voluntary return can be given a notice to appear. The quick courts take place in Border Patrol detention stations and in the judge’s chambers.
All of those who are not removed through one of these programs are processed administratively and then voluntarily returned, Jimarez said. All of these programs are designed to deter border crossers from entering illegally and to reduce the number of voluntary returns processed each day.
On this day, Judge Ferraro calls the migrants to the front in small groups to make their guilty pleas. Each migrant in the group makes the plea individually: some for illegal re-entry, some for misdemeanor entry but who had criminal records. These defendants were sentenced to between 10 and 180 days in prison depending on their criminal history and the severity of the crime.
Everyone else pleads guilty to a misdemeanor and are given a sentence of time served because they have no criminal record.
The accelerated pace of the Streamline cases make it harder to ensure that a defendant understands the process, as one case illustrated that afternoon.
“How do you plead to the charge?” Ferraro asks one defendant.
“Sì, Señor.” The defendant responds.
“ ‘Yes’ is not an answer. How do you plead to the charge? Guilty or not guilty?” Ferraro asks again.
“Sì, Señor.” The defendant answers, shifting his weight nervously. Ferraro says again that “yes” is not the appropriate response to the question he is asking. He repeats the charges to the defendant and again asks for a plea. The defendant looks at his lawyer for help. His lawyer whispers something into the defendant’s ear.
“Cupable, Señor?” The defendant answers a third time. The magistrate judge nods, accepts the guilty plea and calls the next defendant’s name.
By 3:30 p.m. most defendants are on a deportation bus back to Mexico. Very few actually understand what has just happened or that they now have a criminal record in the U.S., say public defenders who are involved with the process.
Heather Williams, a federal public defender in Tucson, says if attorneys must spend at least 20 or 30 minutes with each client to offer the minimal level of legal help to which they’re entitled.
“We don’t really feel comfortable about that for all kinds of reasons, but we think that there is something that resembles effective representation to have that,” Williams said.
Twenty or 30 minutes with each client means an attorney can represent up to six people a day, Williams said.
Attorneys must determine if the client is competent enough to make a plea. He or she must rule out incompetency due to mental illness, lack of education, being under the influence, physical illness, inadequate nourishment or lack of sleep, in the short amount of time the attorney has with the client, according to a letter Williams addressed to the U.S. House of Representatives regarding Operation Streamline.
“Many of these people have no inkling of what this is about,” said William Fry, a supervisory federal public defender in Del Rio, Texas. “You do the best you can with them. If I sense that a particular person that I’m talking to doesn’t understand what he’s doing, of course I would certainly bring that to the attention of the judge.”
There are also concerns that a client may be unaware that he or she has a claim to citizenship, a claim to asylum, or is disqualified from going through the Streamline process because he or she is a juvenile. The defense attorney has to gather enough information in a half hour to offer sound legal advice.
“Some of these cases are defensible and some of these people have claims to citizenship that they’re not even aware of,” Fry said. “In other words, it was difficult for me as a defense lawyer to agree to a program like that.”
A major legal concern regarding Streamline is the “en masse” hearings that have been conducted in Tucson. Opponents argue that mass advising of rights and mass taking of guilty pleas violates a person’s right to due process and Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 says that defendant’s must be addressed in person by a judge in open court and advised of his or her rights. The court must also ensure that pleas are made voluntarily and that there is a factual basis for the plea being entered. and that the information given to the defendant, and the defendant’s plea, must be recorded.
“Dispensation of justice? Are we doing this to give people justice or to move them through the system?” said U.S. Magistrate Judge Richard Mesa, of the U.S. District court in El Paso. Mesa allows seven people into his court at a time. Each day he has three one-hour court sessions for illegal immigration hearings.
Mesa understands why these shortcuts have to be made, especially in sectors where the numbers are nearly triple the number he sees per day.
“It’s difficult to make the accommodations to do seven at a time. What would happen if we did them one at a time and went through the requirements of Rule 11? That is all I would be doing all day?” Mesa said.
A 9th U.S. Circuit Court of Appeals ruling based on a challenge to Tucson’s mass hearings established that magistrates cannot take pleas in large groups. Mass hearings persist in the Tucson court, but the major difference is that magistrate judges now take pleas individually from each of the 70 illegal immigrants in the courtroom. Magistrates must also secure individual responses to a series of questions that ensure the defendants understand their rights and the charges being brought against them.
Critics argue that the ruling did little to protect the migrants’ rights to due process and effective legal counsel. A series of appeals by public defender Jason Hannan of Tucson and one by fellow public defender Heather Williams, are currently going through the district appeals court, fueled by accusations that the mass hearings still violate Rule 11.
U.S. District Judge Philip Martinez says he too has qualms about en masse hearings violating Rule 11. He said taking mass pleas shortchanges a defendant’s right to a fair hearing and belittles the significance of each individual case. But he also admires the overall way the United States deals with illegal immigrants.
“It’s a remarkable country that provides [illegal immigrants] with a lawyer, with an ability to contest charges, with a requirement that the government meet the required burden of proof, and I think that’s one of the reasons so many individuals really wish to be here in this country,” Martinez said.