By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
In the smaller-docketed Yuma courtroom, Magistrate Judge Jay Irwin's pace is more leisurely, almost plodding. On one summer Monday afternoon, the Streamline hearing involves 23 men and takes nearly two hours to complete.
One lawyer represents 23 men. Federal public defender Matthew Johnson says he's handled up to 50 defendants by himself in one day. Compare this with defenders in Tucson, where each lawyer may represent four to six clients at a time.
Defendants are not handcuffed in the Yuma courtroom, though they do wear leg irons. They remain seated until they are sentenced and taken away by marshals. The court interpreter speaks to each man directly in Spanish. No headphones are required.
Irwin advises the group of their rights, and after taking their guilty pleas patiently questions each man on whether they are U.S. citizens, how they entered the country and where they intended to go. Before each man is sentenced, Public Defender Johnson reads biographical details concerning each defendant into the record. The details, along with Irwin's inquiries, have the combined effect of humanizing the defendants, making them individuals instead of part of a faceless herd.
One, named Flores, a truck driver from Phoenix, was arrested at a Border Patrol checkpoint. Johnson says Flores had been a resident of Phoenix for 10 years, and before that, a resident of Los Angeles for 10 years. He was supporting a wife and four American-citizen kids when detained.
Irwin sentences Flores to 20 days. Getting off with time served is a rarity in Irwin's court. Even first-timers with no criminal records get 10 days in jail from the judge before getting booted out of the country.
Later, in his chambers, Irwin explains that "most of the time, not all of the time," he sends defendants to jail for a while.
Surprisingly, two of the 23 defendants before Judge Irwin were heading back to Mexico when the Border Patrol arrested them. Shuttles departing from Phoenix and heading for the border at San Luis, Arizona, are either stopped by Border Patrol agents before they make their destination or checked for undocumented aliens once they've arrived.
"A good percentage of our clients are arrested heading back into Mexico," Johnson says. "The Border Patrol and Customs have what they call 'southbound operations.'
"You hear people complaining that taxpayer dollars are going to arrest these people and to process them," he says. "But if we're arresting people that were footsteps away from Mexico, that argument doesn't carry much weight."
Border Patrol's Yuma sector spokesman acknowledged that the agency conducts southbound ops. He says he can't say how many illegal aliens are apprehended while returning to Mexico. "Well, at one point they entered," Quillin says. "So, no, we don't treat anybody different. When we approach individuals and they say they're going back to Mexico, we just make sure that they do."
But Johnson ascribes a more insidious Border Patrol motive to its agents busting shuttles headed for Mexico. "They're boosting [the Border Patrol's apprehension] numbers," Johnson contends, "by arresting the people going southbound."
One final oddity of the Yuma court: During Streamline hearings, a Border Patrol agent plays the part of prosecutor instead of an assistant U.S. Attorney, as in Tucson. Quillin confirms that this person is not a Border Patrol lawyer, simply an agent.
The official line is that this is allowed because the agent isn't acting as an advocate, but is simply relaying information about the defendant's criminal or removal history.
Still, Criminal Law Professor Erin Murphy of New York University's School of Law finds this troubling, as she does many aspects of Operation Streamline. "I think there are real questions of prosecutorial independence when...the police become the prosecutors."
Streamline's detractors, including Murphy, point to a number of other legal shortcuts that raise red flags about the constitutionality of the program.
Most troubling are the hearings themselves, which compress the process of meeting a lawyer, having an initial appearance before a judge, pleading guilty and being sentenced, all in less than a day.
Critics also charge that these en masse proceedings violate defendants' due process, a fundamental constitutional right to a fair hearing that the U.S. Supreme Court has held covers "all persons within the United States," regardless of immigration status. Though no court has yet to rule on whether Streamline defendants are denied due process, in 2009, the Ninth U.S. Circuit Court of Appeals found in U.S. vs. Roblero-Solis that Streamline hearings violated Rule 11 of the Federal Rules of Criminal Procedure, which states that judges "must address the defendant in open court" and determine whether the defendant's guilty plea and waiver of rights is voluntary.
The Ninth Circuit clearly frowned upon magistrates taking pleas en masse: "To be specific," Judge John Noonan wrote, "no judge, however alert, could tell whether every single person in a group of 47 or 50 affirmatively answered their questions."
And yet, en masse hearings continue. And though magistrates now take pleas individually, some judges are still questioning large groups of defendants collectively.
Erwin Chemerinsky, a constitutional scholar and dean of the University of California-Irvine School of Law, was shocked when the operation of Judge Velasco's court was described to him. "Seventy individuals in 40 minutes is about 30 seconds per," Chemerinsky says. "I am skeptical that you can, in 30 seconds, give someone a meaningful hearing."
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