Border Patrol and Prosecutors Avoid Disclosure of Exculpatory Evidence by Deporting Witnesses

Prosecutors have an obligation to disclose exculpatory evidence — evidence that might result in an acquittal — to the counsel for the defense.  Apparently prosecutors in Southern California, working in collusion with the Border Patrol, seem to think they can skirt around that requirement by deporting witness who might provide exculpatory testimony.

In a 2003 case (United States vs. Ramirez-Lopez) the U.S. Department of Justice voluntarily sought to vacate a conviction that had been obtained under similar circumstances, so clearly they are aware of this requirement and its implications.

The 9th Circuit Court of Appeals recently overturned the conviction of Jonathan Leal-Del Carmen after the trial court basically ignored the issue:

The 9th Circuit slammed the U.S. attorney in San Diego on Friday for deporting a possible witness who could have undermined an alien-smuggling case.

Later, Leal-Del Carmen’s attorney forced the government to turn over the videotapes of the witnesses, and only then did he discover the possibly exculpatory testimony of Garcia-Garcia.    Leal-Del Carmen unsuccessfully moved to dismiss the indictment, then lost his bid to have Garcia-Garcia’s statement admitted. Senior U.S. District Judge Thomas Whelan also refused to issue a missing-witness jury instruction.

The 9th Circuit rebuked the handling of the case, noting that it contradicts the 2003 resolution of United States v. Ramirez-Lopez. In that case, the same U.S. Attorney’s Office voluntarily sought to vacate a smuggling conviction for the same error.

“We had assumed, following Ramirez-Lopez, that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel,” Chief Judge Alex Kozinski wrote for a three-judge panel. “But whatever wisdom the United States attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today.”

The federal appeals court in Pasadena reversed Leal-Del Carmen’s jury conviction on three counts of bringing in illegal aliens without presentation. On remand, the District Court must decide whether to retry Leal-Del Carmen or “dismiss the charges … with prejudice, as a consequence of the government’s conduct.”

There is no doubt that the government’s actions prejudiced Leal-Del Carmen to a fatal degree, according to the court.

“The government undermined Leal-Del Carmen’s opportunity to present a complete defense by deporting a witness it knew could give exculpatory evidence,” Kozinski wrote. “Once Leal-Del Carmen’s lawyer discovered that Garcia-Garcia told border agents that his client didn’t give orders, he used every recourse to try to put this information before the jury, but the district court would have none of it. At each stage, the court – urged by the government – denied defendant’s motions. This prevented the jury from hearing anything at all about the testimony of Leal-Del Carmen’s sole favorable witness, thereby depriving him of a ‘meaningful opportunity to present a complete defense.’”

If the District Court orders a retrial, “Leal-Del Carmen must also be allowed to present the videotape of Garcia-Garcia’s testimony, the transcript or both, as well as any evidence of what the other eight witnesses said,” Kozinski added.

Kozinski also put the circuit on notice that such deportations will not be tolerated.

“As of today, there should be no doubt that the unilateral deportation of witnesses favorable to the defense is not permitted in our circuit,” he wrote.


Also reprinted at:

The complete text of the 9th Circuit Opinion is here:

The Border Patrol isn’t the only agency with deportation powers that has resorted to this practice.  Immigration and Customs Enforcement (ICE) avoided prosecution after the “Homestead Raid of 2008″ by deporting most of the victims and witnesses:

Second, while ICE agents conducted the raid, they allegedly assaulted more individuals (including Garcia and Diaz) who were never chargedwith a crime … According to Jonathan, at least a half dozen others were beaten senseless during the raid. As Jonathan recounted on the show, they were beaten so bad by ICE agents that officials at the GEO Broward Transitional Center, where the men were detained, demanded an inquiry into the injuries after noticing their bruises upon arrival.

What started off as a clear-cut public relations victory for ICE in South Florida, whose reputation took its own beating after agents were in the news after facing charges ranging from sexual assault and drug trafficking to bribery, ended up being yet another black eye for the agency. Some advocates claimed that the human trafficking aspect of the raid was used as a front for a much wider, and more brutal, dragnet. The groundswell of criticism was enough to prompt the Justice Department’s Office of Civil Rights to launch an investigation.

By the time the investigation began, however, several witnesses to the assaults had already been deported. But six of the men that had been beaten made the difficult decision, while in detention, to step forward and cooperate fully in the investigation. Garcia and Diaz, only 17 years old at the time, were among those that made the leap of faith. According to advocates, the U.S. Attorney’s office found their statements credible and they decided not to pursue charges. What they did decide to do was issue the men U-Visa certifications, which would enable them to get special visas for crime victims that cooperate with law enforcement. According to Lerner, although ICE decided not to deport several of the witnesses/victims in the incident, the agency arbitrarily decided that Garcia and Diaz would have to pack up and go by the middle of May.



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