Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals. (Gina Ferazzi/ Los Angeles…)
Common sense and fairness would seem to dictate that the federal government ought not deport an exonerating witness before the witness has been allowed to testify. But good sense is apparently in short supply, at least that’s what the U.S. 9th Circuit Court of Appeal said Friday in a sharply worded ruling.
"May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has even been appointed? We believe the answer is self-evident, as the government recognized in an earlier case where it moved to vacate a conviction after it deported witnesses whose testimony would have exculpated defendant," Judge Alex Kozinski wrote for the three judge panel.
The court is absolutely correct to rebuke the government and make clear "the unilateral deportation of witnesses favorable to a defense" is not permitted.
The case involves a man charged with alien smuggling. Border patrol agents arrested Jonathan Leal-Del Carmen in 2010. He and another man were charged with bringing a dozen immigrants illegally into the U.S. from Mexico. Three of the immigrants who were detained told agents that Leal-Del Carmen gave orders to the group or arranged for the journey. But one woman in the group told officers that Leal-Del Carmen did not issue orders. Officers asked her three times and each time she said Leal-Del Carmen was not the ringleader. In the end, three immigrants whose testimony helped the prosecution were allowed to remain in the U.S. as material witnesses. But the women, who presumably could have testified for the defense, was deported before Leal-Del Carmen was even arraigned. The jury never heard her testimony and Leal-Del Carmen was convicted on some of the charges against him.
What makes the case even more outrageous is that U.S. Attorney’s office that prosecuted Leal-Del Carmen had apparently mishandled a similar case, according to Friday’s decision. And on appeal, the prosecutors had made a commitment to refrain from deporting witnesses favorable to the defense, but that vow seemed to have been forgotten.
No wonder that Kozinski wrote the government’s reasoning in the case "comes close the classic definition of chutzpah."
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