Originally published by The Daily Beast
The question from a U.S. magistrate judge to a young woman from Mexico was simple: Are you a United States citizen? But the woman paused and a titter went up from the packed gallery of court officials and news reporters.
“Ms. Gil-Gonzalez, are you an American citizen?” Judge Jill Burkhardt repeated, and the court interpreter simultaneously translated into Spanish. Marcionila Gil-Gonzalez, 19, bit her lip and looked bewildered.
The problem, said her court-appointed attorney, Kathryn Thickstun, was that her client's Spanish is limited to what she picked up in school. Her native language is mixtec, an indigenous dialect native to Mexico. Gil-Gonzalez, her lawyer said, didn’t understand what she was being asked.
Gil-Gonzalez was one of 41 immigrants charged with entering the U.S. illegally, tried in a group as part of “Operation Streamline.” It’s a Justice Department initiative to fast-track prosecutions of cases like hers. San Diego hadn’t participated until its caseload ballooned after Attorney General Jeff Sessions told prosecutors to use “zero tolerance” against anyone crossing the southern border of the country illegally.
Thickstun had been one of a about dozen attorneys called at 9 a.m. Monday morning to a parking garage at the basement level of the Edward J. Schwartz Federal Building in San Diego. All 41 defendants shuffled in, shackled at the ankles, to a first meeting with defense attorneys in the garage.The 2,500 square-feet area was blocked off by temporary partitions, carpeted, and furnished with fold out tables pushed close together.
Attorneys said privacy in the interview area was minimal: the tables were close enough that the attorneys could see and hear each other’s conversations with clients, and federal marshals were present and within earshot at all times during the three-hour period.
Attorneys had only about 45 minutes to meet with each of their clients that morning. It was not enough time for the court to provide a translator who spoke Gil-Gonzalez’s native language. And since use of cellphones was prohibited, and the makeshift interview room had only one phone line for the 13 attorneys in the room, Thickstun was unable to get a telephone a translation service for her client
As Thickstun argued in court, her client was unable to understand the nature of the charges against her, in violation of a basic guarantee under the Constitution.
“This is a separate but unequal proceeding for our clients,” the attorney told the judge.
Thickstun told The Daily Beast, “We had to communicate with her very slowly, the way you talk to someone who doesn’t speak your language, simplifying things, trying different vocabulary to see if the person understands what was going on.”
Thickstun was one of several court-appointed attorneys at the afternoon session who complained that the “forced nature” of the special court, and in particular the less than three hours she had been afforded to meet with her four clients that morning, were inadequate for her to review the case, interview her client, explain the procedure, and explore legal options.
Court officials had kept details of the special hearing largely secret, and defense attorneys say they weren’t sure what to expect.
Norma Aguilar, a federal public defender in San Diego for more than 16 years, said all of the defendants were shackled at the ankles during interviews with their attorneys, and she described a tearful scene.
“A lot of people were crying,” she said. “It’s upsetting because they’re being treated differently from other people [in the court system].”
One attorney, Janice Deaton, filed an objection in court over what she called a lack of privacy in the room set aside for pretrial interviews. One of Deaton’s clients was unable to process what was he was being told, Deaton told the judge, because the man’s 18-year-old son was sobbing during an interview with another attorney in the same room.
“[The father] was just so distraught, he kept saying, ‘I just want to go home, how do I go home? I just want to take my son home,” Deaton told The Daily Beast.
“I’m a mom, and having my child right in front of me, and the thought of having to make a decision if I should have my attorney ask for bond, he just couldn’t process anything.”
Court procedures stipulate that every effort be made to separate federal inmates who were part of the same group entering the country. The man pled guilty rather than request bond and prolong the process. Deaton’s request that he and his son be detained at the same facility was denied.
Aguilar said the client interviews were remarkable for the ways in which they departed from the norm. Ordinarily, she said, when attorneys meet with clients who are charged with a federal crime they do so in either a room inside the courthouse designed for that purpose, or in a private holding cell at a nearby detention facility. This is done to ensure there is adequate privacy for sensitive legal conversations between attorney and client.
Ordinarily, when an attorney meets for the first time with a client in federal custody, the purpose is to meet the defendant, establish a basic rapport, and explain the nature of the charges and the court procedure in the case. On Monday morning, however, Aguilar said the government had already made plea offers and included them in the case files before the defendants’ attorneys had even been assigned the cases.
“We learned what the plea offer was at the same time we met our clients,” she added. “And there was no meaningful way to renegotiate [the offers], at least not one that was made clear to us.”
Defense attorneys complained in court that their clients were shackled in during their interviews, held in overcrowded cells at a Border Patrol station, and brought to court sleep-deprived, unwashed and hungry—a situation that, combined with the plea offers, Aguilar called “inherently coercive.”
Andrew Nietor, another private attorney appointed by the court, had a client from Honduras who at the time he was taken into federal custody requested asylum based on a fear of gang violence.
Up until a week ago an asylum seeker like Nietor’s client, who has no prior immigration history nor criminal record, would not have been considered a priority for criminal prosecution. He could have still been detained, but international law ordinarily protects an asylum seeker from criminal prosecution during the period his claim is being investigated.
The Justice Department is reportedly considering a regulation that would prevent people from claiming asylum if they're convicted of illegally entering the U.S.
“What concerns me the most is that everything about this process is different from the normal process of people going through the federal courts in San Diego,” Nietor said. “They’ve created a special system for people based on their nationality and ethnicity, and it affects defendants from the first moment that they come in contact with the system.”
Several weeks ago, in response to the surge in illegal entry cases in the district, the chief judge in San Diego federal court formed a committee of judges, prosecutors, law enforcement and defense attorneys, which advised the judiciary on implementation of the fast-track court. The defense bar objected to its creation in a letter that urged the court to reject the Justice Department directive.
"There's no individualization, no consideration of circumstances of any individual person either in pleas or in sentences. It's really kind of a kangaroo court,” said Reuben Cahn, executive director of Federal Defenders of San Diego.
At 2:15 p.m., Judge Burkhardt opened the afternoon session. Federal agents removed the shackles from the ankles of migrant defendants and escorted them in groups of 6 to 8 in single file to seats in what was the jury box. The defendants walked in with their heads down and hands clasped behind their backs.
Dressed in the same clothes they wore when Border Patrol arrested them a few days before, they put on headphones and listened to a translation already in progress.
It emerged in the course of three-and-a-half hours of court proceedings that the men and women were people field laborers, maquiladora workers, construction workers, an electrician, and a heavy machine operator. Their journey to the United States federal court in San Diego had begun in Mexico, Guatemala, Honduras or El Salvador, and ended in their capture in the desert on a weekend of a 110-degree heat wave.
Most had no criminal record, though for some it was not the first time they were caught entering illegally.
A 30-year-old man from Jalisco was part of a group abandoned by guides, his attorney told Judge Burkhardt. He and the others lost their way and ran out of water after 12 hours, ultimately surrendering to border authorities.
More than half of the 41 defendants were arraigned and sentenced in sessions as brief as half an hour. Most of them were released on time served and remanded to immigration custody. Some with prior records for illegal entry or criminal history were sentenced to terms of 30 or 60 days.
Many of the defendants who asked to be released on bond changed their minds and changed their pleas to guilty after the judge set their bonds at between $1,000 and $2,500, far more than they could afford to pay.
Others who asked to be released on bond were transferred to immigration detention and ordered to come back to court on Friday. The fast-track process designed for San Diego comes with a 5-day window to adjudicate cases. In other southwestern districts, the window can be as small as three days or even one day.
Aguilar, the public defender, criticized the new process for what she called “assembly-line justice.” She said she is skeptical that “zero tolerance” will have much effect beyond the political and it could strain the court system exponentially, if migrants charged with misdemeanors return and are charged with felonies.
“With a felony they have to give more time to investigate, review discovery, litigate,” she said. “It takes more resources, which they might not want to use.”
Defense attorneys say the point of the group trials is to process a high number of cases as quickly as possible and minimize the strain on the court system, including space in federal jail.
“We’re calling this Operation Steamroller, and you can quote me on that,” Deaton said.