Defense lawyers say some witnesses deported too soon

• Government prosecutors select who they want to use as witnesses
• Some potential witnesses are deported by federal authorities
• Defense attorneys say such deportations hurt their clients

Three months ago in a Houston courtroom, Jose Adrian Garcia, a 52-year-old married father of three, was on trial for murder.

The strangled victim was found by police on the side of a road in the Houston suburb of Galena Park. Garcia was seen with the victim the night before. He told police the killer was another man — an illegal immigrant known around the neighborhood as a violent person who had military training in Mexico.

As the jury heard testimony in the trial, where a conviction possibly meant Garcia faced life in prison, his attorneys could not call up the man Garcia claimed to be the killer.

The U.S. government had deported him.

"My reaction was 'How in the world did this happen? How could you let this guy go?'" said Garcia's trial attorney, Ellis McCullough. "Just as a matter of caution, they could've certainly held up his deportation until the case was resolved."

Garcia was convicted and has begun serving a 45-year prison term. He is trying to appeal his conviction based on the deportation of his witness.

Defense attorneys and public defenders across the country say Garcia's case illustrates what has become a troubling, systemic problem in the criminal justice system. They say defendants facing charges including murder, human smuggling, alien harboring and employing illegal immigrants are having a hard time keeping people who could help in their defense in the country.

They blame a fractured federal justice system, where government prosecutors select who they want to use as witnesses, and the rest get deported by federal immigration officials.

"By the time we're assigned the case, they're gone," said Kyle Welch, senior litigation counsel for the Federal Public Defender for the southern district of Texas.

A deported defense witness led a California appeals court to throw out charges in September against a man charged with transporting illegal immigrants. Fourteen people were caught by Border Patrol agents, and federal prosecutors detained three people who identified Jonathan Leal-Del Carmen as the smuggler to serve as witnesses. The rest of the group, including one person who said Leal-Del Carmen was not the smuggler, were deported.

"As of today, there should be no doubt that the unilateral deportation of witnesses favorable to the defense is not permitted in our circuit," wrote Chief Judge Alex Kozinzki of the 9th Circuit Court of Appeals.

Agents for Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) usually arrest illegal immigrants and take their initial statements. Justice Department prosecutors then determine who will be charged with crimes, such as human trafficking, and who will be detained as a witnesses to those cases.

After that determination is made, ICE spokeswoman Barbara Gonzalez said they allow defense attorneys access to the illegal immigrants. But she said, "Individuals in ICE custody are detained solely for the purpose of removal."

CBP declined requests for comments.

Justice spokeswoman Allison Price said their prosecutors work "diligently, often in difficult and fast-moving situations" to identify and hold witnesses that would provide any testimony important to the case — for the government, or the defense.

She said prosecutors must also weigh the financial and physical burdens of detaining those witnesses, and the human cost to witnesses who are held but not charged.

"As such, the rights of both defendants and witnesses are carefully considered by the Justice Department," Price said. "Only material witnesses with unique, relevant information are held in the United States for purposes of providing testimony."

Adrian Fontes, a former prosecutor who is now a defense attorney in Phoenix, said they're not asking for the government to indefinitely detain thousands of people for months. They just want an opportunity to interview potential witnesses before they're shipped out of the country.

"All I really need is 20, 30 minutes with them," he said. "The fact that I don't have access to eye witnesses who see my client, hear my client — that I can't even ask these people questions because the federal government removes them from the country? That just violates fundamental fairness."

Attorneys say the problem is most common along the southwest border with Mexico where people are routinely charged with smuggling and harboring illegal immigrants. Carlos Andres Garcia, a defense attorney in Mission, Texas, estimates he is assigned one such case every six weeks.

"In every one of those cases, there are witnesses who are no longer available, even for an interview," Garcia said.

Stephanie Clark, a defense attorney in San Francisco, learned firsthand how hard it is to prove to a judge that a witness was deported improperly.

Two years ago, Clark represented Armando Jacinto, a Santa Rosa, Calif., man who was charged with assault and attempted murder for allegedly stabbing a man during a fight in a restaurant. The trial judge threw out the charges after Jacinto's sole witness — who said another man was holding the knife during the fight — was deported.

But the Supreme Court of California overturned that decision. In a 2010 ruling, the court found that Jacinto had proven that the witness would have been helpful to his defense, but did not show that the government acted in bad faith by deporting him.

The court ruled that the sheriff's deputies who were working in the jail and released the witness to federal immigration agents for deportation were not part of the same team as the county prosecutors who were prosecuting Jacinto. Because of that difference, the court ruled that "no misconduct occurred."

"I think the courts have to keep in mind that criminal defendants have very limited resources and have a pretty high burden," Clark said. "The courts have to be sensitive to how difficult that is when they make their rulings."

In a few cases, deporting witnesses has come back to haunt the government.

During President George W. Bush's administration, massive raids of factories and plants across the country were conducted. Federal agents would swoop into the businesses and detain hundreds of workers, carefully identifying and interviewing each one that was in the country illegally and quickly placing them into deportation proceedings.

Later on, federal prosecutors would file lawsuits against the employers for violating the nation's immigration and employment laws. By the time the suits were filed in court, however, the illegal immigrants were long gone, depriving the companies the ability to question them.

In various lawsuits, those companies have argued that the government destroyed their ability to defend themselves by deporting their only witnesses.

In 2000, federal agents raided Nebraska Beef, rounding up more than 200 illegal immigrants who were working at the plant. But a judge found that federal prosecutors "made a mockery" of the government's responsibility to preserve evidence that may favor the defense by deporting the illegal immigrants. After that ruling, prosecutors settled with Nebraska Beef and dropped the criminal charges.

"We certainly have learned some lessons," U.S. Attorney Mike Heavican told the Omaha World Herald in 2002. "We don't intend to quit enforcing the immigration laws of the United States. We'll do some things differently, perhaps."

Carlos Andres Garcia said the solution is simple — they simply want the government to hold potential witnesses long enough for defense attorneys to interview them before they're deported.

Welch, of the public defender's office in southern Texas, said another possible solution is requiring immigration officials and prosecutors to provide statements from every witness rounded up in a case before deporting them.

"I would think that would be their responsibility," Welch said.