By Stephen Young
By Stephen Young
By Stephen Young
By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
To the immediate south, however, another world, dangerous and deadly, thrives. On the border, away from the serenity and soft city lights, it is dirty business as usual.
Along the Rio Grande River, which marks the winding line separating the United States and Mexico, smugglers of drugs and illegal aliens are on parade.
On this night alone, local Border Patrol and Drug Enforcement Administration officials make six drug seizures and arrest 42 undocumented immigrants. They confiscate 1,340 pounds of marijuana, two and a half pounds of cocaine and one loaded pistol. A few miles away, fellow agents attempt to stop four alien "backpackers"--smugglers who walk drugs across the river and into Texas--but they disappear into the rugged foothills and avoid capture, leaving behind 400 pounds of marijuana. At a checkpoint near Presidio, 12 additional drug smugglers are taken into custody.
A few nights earlier, agents stop a suspicious-looking moving van just west of Pecos and, after removing a wall of furniture stacked in the rear, find 17 undocumented immigrants--men, women and several children--who were to be delivered to a "stash house" drop-off in Dallas. In the truck, agents found just two gallons of water for the dangerous two-day trip.
Despite the collective efforts of the region's law enforcement--Border Patrol, Customs, DEA, U.S. marshals, park rangers, local sheriff's and police departments--the illegal flow continues along the 420 miles of border they are assigned to watch over.
"We aren't stopping it," says Brewster County Sheriff Ronny Dodson. "On the best of days we might just slow it down a little. If someone tries to tell you the situation is getting better, he's blowing smoke. Actually, most of what we catch is by accident."
Dodson and his six deputies patrol the state's largest county. Stretching across 6,128 square miles, it is roughly the size of the state of New Hampshire. The official assignment of DEA agents stationed in the region is to "disrupt and dismantle." Mostly they can only disrupt. There is too much money, too many smugglers and too much rugged geography involved.
At the federal courthouse in Pecos, the Western District docket is so crammed that visiting judges from New York, Vermont and Mississippi have been asked to help with the caseload. The 90-bed Pecos jail stays filled to capacity while detention hearings, arraignments, indictments, jury trials and plea bargains drone on in nearby courtrooms. Records for the past three years indicate that no fewer than 500 criminal cases, the majority of them smuggling-related, are filed in Pecos annually.
"I was on the bench there for eight years," says U.S. District Judge Royal Furgeson, who now presides in San Antonio, "and by the time I was ready to leave, I thought I'd put everybody in the world in jail. Truth is, I hardly made a dent."
Mike Barclay knows well that sense of hopelessness. Barclay, an Alpine-based defense attorney, has lost track of the number of traffickers he's represented since moving his practice from Dallas in the early '80s. He is quite familiar with the smugglers' determination. "The situation," he says, "is not getting better--and it won't get any better."
Barclay, 73, came here to ease into retirement, weary of the urban life and the violent crimes he was hired to defend. Today, however, there is little leisure time for the colorful, gifted litigator who many now refer to as "the dean of West Texas trial lawyers." It is not unusual for him to have as many as a dozen cases at a time on the always-crowded Pecos court docket.
Nevertheless, Barclay throws himself into each case, passionately working for his clients--most of whom are demonized by the press and public, as they are integral parts of the drug trade.
Barclay defends the middlemen who are the nightly targets of the Trans Pecos law enforcement agents, the "mules" who transport the drugs and the "coyotes" who move human cargo from abject Mexico poverty to the promise of minimum-wage jobs in the United States. While the drug lords and slave traders wait safely on their ranches and in plush villas, counting their money, and the U.S. dealers ply their trade in hiding, the smugglers are the high-risk takers, usually desperate and destitute men from the poverty-stricken Mexican border towns.
Barclay manages to make the best of this bleak milieu. His professional yet easygoing style has won him admirers from all sides of the courtroom. He has helped make sure that the crushing load of drug cases is not used as an excuse to deprive the mules and coyotes their due process. Despite his age, he has rekindled a passion for his work, once again embracing the youthful, idealistic notion that, with care and hard work, he can help ensure that something akin to justice--or, at least, fairness--is meted out day-to-day in this hopeless border war.
"He's a throwback to the lawyers of bygone days," Furgeson says. "For him, making certain our justice system works is more than a job; it is a calling."
"Over the years, he's reached a status where he probably gets away with more in court than he should," Furgeson says. "Prosecutors often defer to him and rarely object, he's friends with everyone in the courthouse and, most important, he commands great respect."
He also commands a caseload far greater than any he ever juggled in Dallas. "I wasn't here long before I realized that the courts were literally inundated with cases of drug and alien trafficking," Barclay says.
His phone rings constantly. Weary judges ask if he'll take court appointments and an occasional client who couldn't afford to hire counsel for his own defense or that of a family member. Barclay spends much of his time making the 100-mile trek to the federal courthouse in Pecos, where a fast-moving "rocket docket" is the order of the day.
The phrase was born during the tenure of the late U.S. District Judge Lucius Bunton. Because of the flood of cases arriving in his court, he made it clear to attorneys--defense and prosecution alike--that two witnesses were not to be called when one would do. His courtroom opened early and often didn't close until late at night. Jurors might be excused for a quick lunch, but lawyers were instructed to remain and eat the same sack lunch served to inmates at the nearby jail. "I soon got pretty good at making a motion with a bite of mystery-meat sandwich in my mouth," Barclay says.
That treadmill style of justice continues today. "It's the only way to keep your head above water," says Judge Furgeson, who replaced Bunton and adopted his practices. Barclay, he says, is one of the few who can keep up with the pace and still do well by each of his clients.
Those clients range from frightened, desperate young men to older, more hardened criminals with nothing more than greed as a motive for their crimes. For the majority of those he defends, however, the veteran attorney feels a noticeable degree of sympathy.
"They're desperate," he says, "because they're hungry. Their families are hungry. They've reached a point where they'll do anything to improve their hopeless situations." And so they risk going to jail for a paltry sum. The going rate for a mule, Barclay says, is $100 per pound of marijuana he successfully smuggles in. No up-front payment, no promise of legal help if arrested, no knowledge of the English language and no assurance against bodily harm. The poorly compensated mules are the key link in the Mexico-to-U.S. drug chain and yet are the most expendable.
The same applies to the coyote, who receives about $150 per illegal immigrant he is able to smuggle across the border--while Mexico kingpins like Ruben Valdes, once head of an organization that moved more than 200 people a week before he recently received a 27-year prison sentence for practicing the illicit trade, earn $1,500 to $2,000 from each person jammed into the back of a sweatbox trailer.
It is a discomforting statistic, but officials investigating the recent Victoria incident wherein 19 immigrants were found suffocated estimate they had been worth as much as $200,000 in smuggling fees. The driver, meanwhile, admitted to authorities that he was to have been paid only $2,500.
"More than once," Barclay says, "I've seen cases where one of the mules, carrying, say, 50 pounds of marijuana, was sent across while the people hiring him knew he'd be caught. He was just a decoy, there to divert attention from another mule close behind him with 500 pounds."
Even the courts, he says, are generally prone to view his clients' crimes with some degree of leniency since it is not the endless reserve of downtrodden and defeated middlemen the authorities are really after.
"The judges know that in most instances these people are just being used," says Larry Leon, Alpine's resident DEA agent. "For the most part," he says, "these are sad people, down on their luck. They need money so badly they're willing to take the chance of going to jail for a long time." Law enforcement's primary interest in them, then, is any information they might provide about where the drugs they're smuggling originated and where and to whom they are to be delivered.
Rarely do the mules know. "The dealers are smart enough not to expose themselves directly to the smuggler. On both sides of the border, the transaction is filtered through several layers."
The repeat offenders who smuggle dope as well as aliens, however, are a different matter. Having had a taste of the excitement and easy money, alluding capture has become a game. "Some," Barclay says, "have become quite smart, very inventive."
"The fact that arrest and seizure statistics are down slightly in some areas," says Marfa Sector Border Patrol spokesman William Brooks, "might--and I emphasize the word might--mean we've slowed the traffic." Or, he admits, it could mean that the approximately 200 agents working out of his office are simply being skirted by the inventive new ways smugglers slip their illegal wares into the jurisdiction.
Most recent numbers show that in fiscal 2002, Border Patrol agents based in Marfa alone seized 84,595 pounds of marijuana and 295 pounds of cocaine; they apprehended 11,374 undocumented immigrants. Although cocaine seizures and arrests are down slightly from previous years, smuggling of the high-grade marijuana grown in central Mexico has reached a record high.
So frequent are the drug busts in his circulation area, says Marfa's Robert Halpern, editor of the weekly Big Bend Sentinel, that not all are reported in his paper. "The joke here in the office," he says, "is if they seize only 50 pounds [of marijuana], we consider it to be 'for personal use.'"
He admits that the cases his paper has reported on quickly become a blur. "They got 2,000 pounds on one stop a few weeks ago," he says, "and that got my attention. But next week, they'll catch someone with 3,000, then 5,000. And on and on it will go."
What troubles Halpern is that a few local youngsters have become involved in trafficking. "It's sad," he says, "but they've decided to become big-time smugglers and are winding up in jail, their lives ruined. All to make a quick, easy dollar."
The big bucks, DEA agent Leon says, are in the trafficking of marijuana. "The profit margin is incredible. On the other side of the border, the going rate [that dealers pay] is $100 a pound. In Dallas, the sale price is $600 to $650. Farther north, in Chicago and New York, it goes up to $800 to $900."
That is not to say the smuggling trade in heroin, cocaine and methamphetamines has waned.
"Actually, the other drugs are easier to get across because they're not as bulky," Leon says. "A pound of heroin, for example, is no bigger than a baked potato. And cocaine and pills are much easier to hide. But the fact remains that the greatest profit margin is with the marijuana. And profit is what drug smuggling is all about."
Will his agency and the Border Patrol, more high-profile than ever since Homeland Security became an everyday concern, ever get the upper hand on the matter? Not likely, everyone from officers in the field to jurists in the courtrooms say.
"The technology the smugglers are using," Leon says, "continues to improve. And many of them seem to be getting smarter." Time was, he points out, when the drug dealers were comfortable with the high risk of bringing in their contraband in large truckload amounts. When more checkpoints were established along the busiest highways, equipped with X-ray machines, drug-sniffing dogs and well-trained lawmen, the smugglers began looking for alternate routes.
They come not in huge trucks but in automobiles, pickups and SUVs, each transporting no more than 50 to 60 pounds of marijuana. "Basically, the dealers are still trying to get the large amounts into the States," Leon explains, "but they feel their chances are better if they split it up into smaller loads. The thinking now, in fact, is that there is a very good chance some of the vehicles they're sending will be caught. But they're playing the odds, hoping they can make it through with six or eight out of 10 or 12 loads."
Drugs are hidden in door panels, dashboards and headliners, false gas tanks, metal containers inserted into the tires and the space where the passenger-side airbag normally would be stored. Recently, a fake battery was found filled with black tar heroin (while the real battery was mounted beneath the car). Cocaine is hidden in a motor's manifold since smugglers have learned the engine heat will not melt or damage the drug. "I had one guy," Barclay says, "tell of driving straight through from Chihuahua City [Mexico] to Wichita, Kansas, with his manifold packed with coke. The only problem he had was having to wait several hours for the engine to cool before he could make his delivery."
Even law-abiding citizens have become unwitting accomplices. Mexican dealers will spot the parked vehicle of a vacationing family from Texas or New Mexico and wait until night to place a cargo of drugs in some hidden spot. That done, they take down the license plate number and do a computer check to determine the owner's home address.
"An innocent-looking family isn't going to have much trouble getting back across the border," Barclay says. "They get home, park their RV in the driveway and while they're sleeping, the dealers sneak up and retrieve their drug shipment."
More and more, he says, unaware victims are being lured into the trade. He tells of an independent Garland truck driver who responded to a Dallas Morning News classified ad last winter, seeking someone to haul a load of cattle from Presidio to Fort Worth. He was informed that a loaded trailer would be waiting for him. He was not told that he also would be hauling more than a ton of marijuana. Nor did he have any idea that he would be stopped, arrested and jailed.
Then there are the backpackers, young men familiar with the rugged terrain and willing to hike across the border with 50 to 100 pounds of marijuana. Often equipped with night-vision goggles and two-way radios, they may travel as far as 80 or 90 miles on foot before reaching their assigned drop-off point.
"Not only are they familiar with the region," Sheriff Dodson says, "but they're in constant contact with scouts on this side who alert them to where we [law enforcement] are. I can assure you that every time I pull out of the parking lot in front of my office and start driving south, someone is on a cell phone or walkie-talkie, letting the smugglers know."
Getting illegal aliens across is only a bit more difficult. In some cases, the trucks hauling them northward simply pull over a few miles before reaching a Border Patrol checkpoint, allowing them to walk through the desert and around the inspection station, only to be picked up a few miles beyond it. In other instances, they are picked up by all-terrain vehicles and driven through the darkened desert to a waiting truck.
"If," Leon says, "they can make it up to Interstate 20, they're pretty much home free. From there they can go to New Mexico, Lubbock or Dallas."
"Mike," says retired Dallas County District Judge Don Metcalfe, "was a rarity when he was practicing here. He was not only shrewd; he had this wonderful sense of humor that kept everyone off-balance."
Classmates at SMU Law School, they shared an office during the early stages of their legal careers. And occasionally worked on cases together. It was during that time that Metcalfe became aware of the maverick tendencies of his lifelong friend. "After I became a judge," he says, "I immediately appointed Mike to a couple of cases, thinking if I could successfully control him in the courtroom, I'd be able to handle just about any situation."
It wasn't always easy. "I knew he was an excellent criminal lawyer--maybe the best in Dallas at the time--but it was just impossible to anticipate what he might do."
He recalls a trial during which a particularly natty Dallas police detective was on the stand, testifying against one of Barclay's clients. It was a time before men routinely used hairspray, yet not a single hair on the officer's head was out of place. Suddenly, Barclay interrupted the proceedings to urgently request a conference at the judge's bench. Leaning toward Metcalfe, the lawyer handed him a note: Judge, it read, the boys in Homicide Division are wondering if the witness wears a hairpiece. May I inquire?
It was during that trial that Barclay, in his effort to prove that the officers who arrested his client had not properly identified themselves as police after bursting through an apartment door, called the accused's girlfriend to the stand. Did she, Barclay wanted to know, hear anyone announce themselves as a police officer?
Barclay, of course, already knew the answer she would provide: "No sir," the young woman testified. "All I heard was, 'Freeze, motherfucker, or die.'"
Once, while cross-examining a witness who could not remember if his client was missing an eye, Barclay removed his own prosthetic eye that he'd worn since a 1947 semipro football accident and placed it on the witness stand. "If he looked like this," he said, pointing to his own vacant eye socket, "don't you think you would recall it?"
He clearly enjoyed and was devoted to his work, always quick with an amusing story to pass along to colleagues; a man to whom laughter came easily. As the '80s approached, the career malaise that often befalls defense lawyers hit. Losing three consecutive court-appointed capital murder cases didn't help. "I finally realized I was burning out," he reflects, "and began looking for a way to escape everything--the violent crime, the Dallas traffic, the whole big-city rat race."
Years earlier he'd begun the habit of vanishing into the Big Bend area for Christmas vacations and became enamored with the wide-open spaces and slow pace of the region. By the time he'd made the decision to close down his Dallas practice and semi-retire, he'd decided that Alpine, with a population just shy of 6,000, would be his new home.
"My thinking at the time was that I'd keep my license and maybe help draw up a will or two now and then," he says as he sits in his small office behind the home he shares with artist wife Barbara. Originally the Alpine hospital, built in 1907, it was remodeled into a bed-and-breakfast during World War II. "Now," Barclay says with his baritone laugh, "I'm the only lawyer in Alpine with 14 rooms and seven baths."
It's that lighthearted approach that helps him so well in the courtroom today. Judge Furgeson says he has Barclay's voir dire questioning to potential jurors memorized: "He'll smile at everyone and then tell them how he'd moved out here years ago from Dallas. He'll say that after he'd been here awhile he phoned his mother to tell her how friendly everyone in this part of the country was. He tells them she just laughed and said, 'Honey, they're not friendly; they're just lonely...'"
More than once Barclay has even resorted to writing his own poetry in an attempt to deflect a judge's anger over the fact a client has unexpectedly skipped a court date. Like the time defendant Hernando Felix-Yague (pronounced "yah-gee") failed to appear:
Hernando Felix Yague
Has a mind that's now become foggy.
On a search for his person
Pre-trial is still cursin'.
But I just learned this day
He's down Mexico way.
"I can't tell you how many times I've thought I ought to charge him with contempt or at least reprimand him," Furgeson says, "but I knew if I opened my mouth, I'd start laughing."
"He came out here," Sheriff Dodson says, "and taught us how to do our jobs." Dodson, a member of the Alpine police force when he first became acquainted with Barclay, admits that the day-to-day details of matters such as showing just cause for a search warrant were often overlooked. "The first half-dozen cases Mike defended were dismissed because he was able to easily show that law enforcement hadn't done everything by the book. Thanks to him, we learned quickly to dot the i's and cross the t's."
Dodson laughs when Barclay insists on retelling a story he heard about the sheriff shortly after settling in Alpine. Dodson, it seems, was sworn in as an Alpine patrolman almost a year before his 21st birthday. "He was issued a badge and a gun," Barclay says, "but, by law, he was too young to purchase ammunition. So, for the first year of his law enforcement career, he had to take his wife with him down to Morrison's True Value so she could buy him bullets."
A recent Barclay client had made it through the border checkpoint, only to be stopped by a state trooper north of Alpine for a defective taillight on his truck. The frightened driver immediately jumped from the cab, his hands stretched into the air, and yelled out, "You've got me, don't shoot." Stunned by the quick admission, the trooper investigated and found 750 pounds of marijuana and a drunk woman in the trailer the man was pulling.
Then there was the smuggler whose pickup engine heated up after he'd reached the American side of the border. While pulled over to allow it to cool down, an off-duty Border Patrol agent stopped to lend a hand. During casual conversation as they tinkered with the engine, the Good Samaritan asked what the driver was hauling. When the man openly boasted that he had a 1,400-pound load of marijuana he was taking to Dallas, he was arrested.
Which is to say there are a lot of cases Barclay doesn't have much chance of winning. "But what impresses me about him," Judge Furgeson says, "is the fact that once he's in the courtroom there is no way to tell if his client is court-appointed or one who's able to pay for counsel. Mike works equally hard for them all."
When the compliment is passed along, Barclay only shrugs. "My role is that of any other defense attorney. If my client is innocent, I've got to do everything I can to prove it. If his arrest or the investigation wasn't conducted properly, I'm going to raise hell about it."
His actions suggest it is those young, ignorant, out-of-work men caught in their first, desperate smuggling attempts that Barclay wishes most to help. After 45 years of practice, he holds to a belief that one illegal act does not make a person forever evil.
"These people's lives," he says, "are bad enough already."