One of the undocumented alien witnesses, however, says "screw you," to the government. One witness is going to testify for the defendant and say that he's not the person who committed the crime. Certainly the defendant can't do anything to help him, but he's going to testify for him anyway.
Guess who the government decides to deport before trial?
In a decision in the 9th Circuit in United States v. Leal-Del Carmen, Chief Judge Alex Kozinski says nope.
Once the government is aware that an alien has potentially exculpatory evidence, it must treat that person as a material witness and give defense counsel the opportunity to interview him and make a reasoned determination whether to seek his retention pending trial. This means the witness may not be deported before defense counsel has been retained or appointed and has had a fair opportunity to interview him.
The defendant was accused of smuggling nice folks across the Mexican border. The border patrol agents interviewed four of the aliens, three of whom said that he was el jefe. One said otherwise. The government neglected to mention this flagrantly exculpatory evidence to the defense, who eventually found out about it when the government, after strong resistance, turned over videos of witness interviews.
Woo hoo, a witness? Not so fast. The witness that didn't help the government's case was nowhere to be found. He, though not the others, had been sent back. Deported. Gone. Adios.
As an aside, the court was distressed by the fact that the government made the defense fight for discovery, rather than just turn it over. In footnote 4, Judge Kozinski wrote:
We were surprised to learn that the Justice Department required defense counsel to make discovery requests rather than voluntarily and promptly turning over discovery materials. Since most criminal defense lawyers are appointed, see Caroline Wolf Harlow, Bureau of Just. Stat., Defense Counsel in Criminal Cases 1 (2000), the cost of preparing discovery requests is generally paid with public funds. See 18 U.S.C. § 3006A(a), (i). It’s difficult to understand how the Justice Department justifies imposing this expense on taxpayers and the court, or reconciles it with the government’s duty of fairness in criminal cases. See Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”).
To the extent we wonder whether the apparent naivete of judges is real or just put on for show, this provides a pretty good answer. As judges attuned to reality go, Judge Kozinski is probably one of the best, and yet this footnote suggests that he still, despite everything he's been through and everything he's written, has faith in the prosecution to honor its statutory and constitutional obligations just because they're good guys.
To the extent the holding here doesn't seem terribly surprising, it wasn't nearly as easy to reach as one might assume.We have adopted a two-part test to evaluate whether the government’s deportation of an alien-witness amounts to a constitutional violation. First, the defendant must show that the government acted in bad faith. United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991). There is no violation where the executive has made a “good-faith determination” that the alien-witness possesses no evidence that might exculpate the defendant. United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73 (1982). Second, the defendant must demonstrate that deportation of the witness prejudiced his case. Dring, 930 F.2d at 693. “To prevail under the prejudice prong, the defendant must at least make ‘a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.”’ Id. at 693-94 (quoting Valenzuela-Bernal, 458 U.S. at 873). This test balances the defendant’s right to present his version of events to the jury with the government’s interest in enforcing the immigration laws by promptly deporting aliens who “possess no material evidence relevant to a criminal trial.” Valenzuela-Bernal, 458 U.S. at 864-66.
This is a test that would, under normal circumstances, be essentially impossible to meet. If the alien is gone before the defense counsel has had the chance to interview him, how would he know what he would say? Indeed, without some sort of heads up, defense counsel wouldn't even know to interview him in the first place, the assumption being that most people in his position, alien caught crossing the border, is going to sell his testimony to the government cheap in the hope of being allowed to stay.
And of course, without damn strong evidence that the government shipped off the guy who offered exculpatory evidence while hanging on to their own witnesses, chances of showing bad faith by the prosecutor are none to worse than none, if that was possible.
What is glaringly missing from this decision is a real recognition that the minions of our beloved sovereign deep-sixed exculpatory evidence. Again. There is the obligatory "honor the Constitution" lecture number 7, the one where the court explains to the government that it deprived the defendant of a fair trial and the right to present a defense (because the government probably forgot about this), and for the 4,974th time, was sternly told not to do it again.
Then comes the fascinating remedy.
On remand, the district judge shall decide whether to dismiss the charges against Leal-Del Carmen with prejudice,as a consequence of the government’s conduct. Should the district court permit a retrial, it shall determine whether the eight other deported witnesses were interviewed by government agents and, if so, what they each said. The government shall provide testimony or declarations from border agents as to whether they interviewed the remaining members of the group and whether they took notes or otherwise recorded the statements.
After all, if the government failed miserably to honor the defendant's constitutional rights in the first place, and the district court failed to remedy this omission at the first trial, it will certainly go better for the defense the second time around. The defendant will be allowed, at retrial, to play the videotape and be given a missing witness charge, which is nearly as good as having a live, exculpatory witness on the stand to testify for the defendant if one lives in an appellate court's fantasy world. A simple dismissal would be much too harsh, I guess.
Is this a good decision? Well, sure, given that it says all the right things and the defendant's right to exculpatory evidence is acknowledged, albeit less than effectively. And if the defense can prove the government acted in bad faith by deporting an alien to prevent his providing exculpatory evidence, this decision certainly helps.
But why, it has to be asked, if the government acted in bad faith is there no price to pay? Why is no prosecutor held to answer for his deliberate violation of a defendant's constitutional rights? And how long will courts persist in depending on the good will of the government to honor the defendant's constitutional rights in appeals predicated on their failure to do exactly that? If it didn't happen once (or 10,000 times), why would one more lecture do the trick?
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