Ninth Circuit: Deporting Witnesses Is Not OK

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Written By admin at Monday, September 17th, 2012


You’re charged with a crime, and the only person in the world who can help you prove your innocence (or at least cast doubt on your guiltiness) is an illegal immigrant. Can the government deport this “alien witness” before your lawyer has had a chance to interview her?

Um, no.

From a ruling Friday by the U.S. Court of Appeals for the Ninth Circuit:

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 case involved a man charged with smuggling illegal immigrants, who were discovered in 2010 by border patrol agents in Smith Canyon, an area along the United States–Mexico border. Three individuals identified the man, Jonathan Leal-Del Carmen, as having led or helped them make travel arrangements. The government kept those three as material witnesses. A fourth witness told authorities that Mr. Leal-Del Carmen wasn’t the one giving orders. She was deported. A federal jury convicted Mr. Leal-Del Carmen of three counts of bringing in illegal aliens without presentation. He appealed, arguing that the government had violated his constitutional rights by deporting the only witness who could have offered favorable testimony.

“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 Kozinski for a unanimous panel.

The Ninth Circuit sent the case back to a federal district judge to decide whether to dismiss the case with prejudice.

The U.S. Attorney’s Office for the Southern District of California, which prosecuted Mr. Leal-Del Carmen, didn’t immediately return a message seeking comment. A lawyer for Mr. Leal-Del Carmen didn’t immediately respond to a request for comment.

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