Oversight Blamed for Detention of Illegal Aliens

Like most of the nearly 44,000 illegal aliens picked up each month by the U.S. Border Patrol near the California-Mexico border, Jose Acevez, a young Mexican making his way last Aug. 10 to a relative’s home in Imperial, was not charged with a crime.

But rather than being tucked in a van and driven back across the border, as are most illegals nabbed by the Border Patrol, Acevez was trundled down to the Metropolitan Correctional Center in San Diego to be held as a material witness against the woman accused of helping him sneak into the United States.

The accused smuggler, a 28-year-old Mexican national named Maria del Jesus Verduzco de Velez, spent just one day in custody, according to federal court records. Arrested Aug. 11 in Calexico, she posted bond the next day. The U.S. Attorney’s office dropped the charges against her on Aug. 16.

There were no charges to drop against Acevez; federal authorities in the San Diego area generally don’t arrest aliens for illegal entry. Yet court records show that Acevez remained locked in the high-rise federal jail until Sept. 27.

Then, nearly seven weeks after the release of the woman he was being held to testify against, inquiries by jail officials and defense attorneys led to the issuance of a court order that set Acevez free.

Though there are no statistics on the magnitude of the problem, lawyers who work with the thousands of aliens processed through federal courts in San Diego each month say Acevez’s case is a symptom of a chronic condition. In a small but persistent number of instances, they contend, material witnesses--overlooked in a cascade of paper work and an endless flow of prisoners--are left to languish in jail long beyond their usefulness to the courts.

“They’re not very high in anybody’s priorities. That’s the tragic part,” said Judy Clarke, executive director of Federal Defenders of San Diego Inc., the nonprofit group that defends indigents in the federal courts. “We’ve had a pattern of these problems, and they’re not being solved.”

Clarke recently sent U.S. Atty. Peter Nunez a letter detailing 27 cases in the last two years of witnesses detained from three days to as long as seven weeks after the cases in which they were to testify were resolved with a dismissal or guilty plea.

“It has become increasingly clear that a serious problem with releases continues to exist,” she said in the mid-November letter. Clarke described the situation as “barbaric,” and urged Nunez to review release procedures and study alternatives to the jailing of material witnesses.

Nunez said last week he was aware of occasional oversights that leave witnesses in jail needlessly. When alerted to such problems, he said, “We take it very seriously and try to deal with it.”

But Nunez and other federal officials say the problem is being exaggerated. The cases are “isolated incidents” among the 2,000 or more material witnesses held each year, Nunez said, and they do not justify any “fundamental change” in the way material witnesses are treated.

“For reasons neither Judy nor I nor anyone else can figure out, for years it has appeared to be cyclical,” he said. “We go for months and months at a time without any of these problems, and then there are three or four or five instances over a three- or four-month period.”

Material witnesses can remain free awaiting court appearances if they make bail or if a relative in California agrees to post bond for them. On most days, however, from 35 to 50 are in custody, and attorneys say the court system can lose track of the jailed witnesses at numerous junctures in the legal process.

Take the case of an accused alien smuggler who pleads guilty at his first court appearance.

Under that circumstance, the material witnesses held by the Border Patrol to testify against the defendant are never required to appear in court. In fact, the magistrate hearing the case may not know there are witnesses in custody, said attorney Al Smithson, who coordinates a panel of lawyers appointed to represent material witnesses in San Diego federal courts.

If the magistrate is unaware of the witnesses, he will not name a lawyer to represent them, Smithson said. And, naturally, the magistrate will not sign an order releasing the witnesses.

In the meantime, the witnesses will wait in the Metropolitan Correctional Center, the 23-story federal jail downtown, where the average cost of holding a prisoner is $43 per day. It’s only when the witnesses complain to jail personnel about the length of their stay, Smithson said, that lawyers and court officials begin unraveling their cases and discovering that they should have been freed.

“There’s no sort of automatic check and balance system in effect,” Smithson said. “It just seems like in a day and time such as this, where we have computers capable of doing so many things, that there should be a way to create a check and balance system that could tell us this.”

Witnesses also can languish in jail if an assistant U.S. attorney forgets to give a judge an order for the witness’s release or if the document somehow is lost between the courtroom and the jail, Smithson said.

“The orders for releases come about in a number of different forums,” he said. “They don’t go through any one particular person in the court system.”

Officials of the many agencies that have contact with material witnesses--the Border Patrol, the Immigration and Naturalization Service, the U.S. Marshal’s office and the jail--said last week they were not aware of a problem with needless detention of witnesses.

Some of the officials, though, acknowledged that the enormous numbers of aliens that stream through San Diego courts and the multiplicity of agencies that deal with them make it possible that some witnesses will fall through cracks in the system.

“When you’re dealing with multiple agencies and lots of people, I guess the probability is large,” said Ed Pyeatt, a Border Patrol spokesman. But Pyeatt said policies requiring contact between the agencies and careful monitoring of the witnesses’ status help guard against miscues.

No one complains that the material witnesses are being locked away in a pit.

They are kept separate from other prisoners in the well-scrubbed 12-year-old jail, according to Warden Tim Keohane. Rather than being in cells behind bars, they sleep in “open dorm” accommodations--large rooms with brown floors, narrow windows and white walls lined with bunk beds.

The witnesses have unlimited access to a day room, go to the rooftop gym to box and play basketball, and get free medical and dental care. They can take classes or work in paying prison jobs. They receive $1 for each day they are incarcerated. And like other prisoners, they line up for three meals that cost the government a total of $2.25 per day.

But critics say those witnesses being held longer than necessary are being denied their most fundamental rights.

Imprisonment “is the second most severe penalty we impose on people,” said Gregory Marshall, legal director of the San Diego chapter of the American Civil Liberties Union, which is studying the issue. “The only more severe one is death, and that happens very rarely.”

Nunez said his office was investigating each instance identified by defense attorneys as a supposedly late release, verifying the accuracy of the allegations and looking for patterns that would indicate a problem with the mechanism for processing material witnesses.

“If we can find some kind of glitch in the system, we’ll eliminate it,” he said.

The attention, said Clarke of Federal Defenders, is long overdue.

“They’re human beings, and they’re sort of shuffled off,” she said. “When you have a pattern of these releases, you begin to think they’re just being ignored.”