In the shadows and wonders of the US legislation system, through the eyes of a fearless lawyer

 Boston, USA. 29 September 2016

Not everybody who enter a district court for an arraignment would imagine leaving the courtroom without any charge, but being caught by immigration officers right after. This is what happened to Josè Ondino Paz-Cartagena, last September 9, 2016, in front of Brighton District Court. The man was charged in 2009 for distribution of drug, possession, and violation within 1000 feet distance from a school. After seven years, he was finally in front of the judge for the arraignment related to these old charges.

On the stairs in front of the neoclassical entrance of the court, the defendant was not the only one unprepared for the unexpected turn of the events. While two officers of the law enforcement agency for immigration, the ICE (Immigration and Customs Enforcement agency) were arresting him, Ms Frances Tucker, the attorney of Mr Paz-Cartagena, could almost believe what was going on in front of her eyes. “I have never seen anything like this in 26 years of work!” she stated a few minutes after the arrest, still astonished. “He has probably been living as undocumented immigrant in the US for more than ten years without the ICE could find him!” she says.

 

Ms Frances Tucker on that Friday morning was in Brighton District Court for one of her duty days that brings her once or two times pro month to serve as public defender in the district courts of West Roxbury and Brighton. She has been working in the last years both as private lawyer and public defender hired by the state. In Massachusetts, after a new legislation, the staff of public defenders paid by the government is composed of 75% private attorneys that do public defend work on some specific duty days.

As public defender, Ms Tucker represents indigent defendants that can not afford to hire a private attorney. Every person legally in US has the right to a fair trial in district and federal courts, standing equal before the law. She had never met her defendant Mr Paz-Cartagena, but his case at the beginning did not seem anything exceptional. On the contrary, it was similar to thousands of other cases that could be dismissed thanks to a recent major scandal of the judicial system in Massachusetts. The suspected drug he carried with him was tested in the labs of Ms Annie Dookhan, that turned out to have tampered the tests for many years, resulting in her arrest in 2013 for perjury, evidence tampering, obstruction of justice falsifying drug tests in criminal investigations

If Ms Tucker had the chance to help his client be dismissed for this old charges, little can she do after his arrest by the ICE. She is very skeptical about the possibility to see him again, and she wonders how it could have been possible for the man originally from Honduras to remain about ten years in US as undocumented immigrant, without being found by the ICE. A few days after the arrest, she stated: “I am in the dark about whether I will see him again.  The next court date set is for a pretrial but unless I find out where he is I cannot ask the court for a habe (habeas corpus petition to bring a prisoner to court). In any event, the federal immigration authorities have taken the position that they are not subject to state court authority and usually do not respond even if they receive a habe to bring a prisoner to court”.

 

The very opaque and non-transparent procedures of ICE have been highlighted recently in Massachusetts, especially thanks to an investigation led by a reporter of the Boston Globe, Ms Maria Sacchetti. The results of the investigation portray a very close, almost inaccessible system that makes the ICE the most secret law enforcement agency of US. For the people who enter the ICE system, usually a nightmare begins, that could end with a protracted imprisonment, a hearing held by the immigration courts and eventually in many cases deportation. This is what probably is awaiting Paz-Cartagena. The surprising facts emerged from the investigation of the Boston Globe is that quite often are themselves the detainees to waive and ask for deportation. If the trial takes longer than expected, they prefer to waive in order to escape as soon as possible from the detrimental conditions of the immigration jails. Ms Tucker says that very often, in such a critical standpoint, people find money to pay the substantial fee of “five figures” for the immigration lawyers. However, if indigent immigrants facing deportation can not afford to pay for a private lawyer, they are left alone in front of the immigration court.

 

Ms. Frances Tucker expresses her opinion about the prospective future of her defendant: “The ICE officers told me that had been “keeping an eye on him.”  I don’t really know why, he only has one old case.  Nevertheless, the Obama administration has been deporting more people than ever.  I expect he will be sent to his home country of Honduras relatively quickly despite his being in the U.S. for about 10 years”. Trying to figure out where her defendant is, Ms Tucker reached out the Committee for Public Counsel Services (CPCS), the Public Defender Agency of Massachusetts, that has an immigration unit in charge of assisting the attorneys. The CPCS is in charge of providing legal representation to those unable to afford an attorney, through its 500 staff attorneys and 3,000 private attorneys. The CPCS informed her that is possible to find people detained in jail waiting for the deportation process hearing through an online database of ICE. On the web, ICE claims that through this online database (locator.ice.gov/odls/homePage.do) is possible to find “a detainee who is currently in ICE custody, or who was released from ICE custody for any reason within the last 60 days”. However, apparently it is not possible to find in the list people such as Cartagena-Paz, confirming the doubts of Ms Tucker about the possibility to easily discover what happened to him and where he is located. In her opinion, he could be detained in Plymouth, or in one of the other private jails that through contracts with the government host people awaiting a trail. In the obscure shadows of the ICE procedures even in the case that immigration courts rule for deportation of detainees, sometimes the country of origin denies the possibility to take back the prisoner. Many of the detainees are released in the US after the end of the sentence if the origin country has refused to accept them back. At the same time, many undocumented immigrants with minor crimes, civil charges, or even without any, are detained in jails, in inappropriate conditions and contributing to the economical burden on the state and the problem of overcrowding.

 

Ms Tucker is committed and fearless when it comes to her job and to represent her defendants. It does not matter if his client could apparently seem one of the victims of an unfair deportation system, or if on the contrary the grounds for his arrest and subsequent deportation could be motivated. As public defender, her aim is simply to provide her legal assistance to her clients, and help them to walk through the tortuous path of the judicial system. It does not matter if previous records could suggest that the person is actually guilty of criminal charges. During her work, her efforts are aimed to protect her clients in each specific case she has to deal with. In fact, through a deeper investigation into the case of Mr Paz-Cartagena, is possible to find out that already in 2003 he was charged with assault and battery, having stabbed somebody. He then plead guilty and probably was released on bail. Even if Ms Tucker has long experience in the field, sometimes she can just guess how the intricate jungle of the legal system and the law enforcement agencies work together. In the case of Cartagena-Paz, in 2009 he was arrested again for the charges related to drug trafficking. He could not afford to pay the bail on him of $ 1,000, but he was released from jail after a couple of weeks because of overcrowding. After a warrant on him on October 2009, he  did not show up in front of the court. Even if it could be possible that the warrant was sent to a wrong or no longer valid address, since that moment the ICE could have been controlling him. Any interaction that needs a legal certification, such as for example a divorce or the issuing of a driving license, could have then brought him back into light, allowing the ICE to find him, and start following him. On August 2016 a new warrant requiring him to stand in front of the court was issued. Ms Tucker guesses that the client decided to show up in the court hoping to be dismissed because of the tainted results of the drug tests.

 

Even after these 26 years of work and countless number of cases, Ms Tucker continuously find new grounds of commitment to her job, and still she can be surprised as the events unfold in unexpected ways. Brighton District Court seems to be one of the most interesting places where to work. “All the weirdest cases happen there!” she utters, after she has started to work on a case of a man charged with criminal harassment. A young woman accused him because she was scared of his attempts to approaching her in some occasions they met in their neighborhood. The man is now in jail, and in the opinion of Ms Tucker he could not be charged just for having tried to have a date with the woman. It does not matter if seven years ago he committed an attempt of rape, and he was released on bail for $ 10,000. The new case is what she has to work on, without any moral judgement on the behaviors and acts of her defendant. And this is what she does.

 

After all these years and all the more or less complicated and controversial cases, Ms Tucker still stands fearless and fierce in front of the judges, even if she could enjoy her time of retirement. She says “I could stop working on this. But I don’t really want to stay at home and watch television for the whole day!”.  Working in the court could give much more surprises and be much more thrilling.


REFERENCES

The New York Times, Kirk Semplemay 29, 2014, Public Defender System for Immigrants Facing Deportation Would Pay for Itself, Study Says – http://www.nytimes.com/2014/05/30/nyregion/study-favors-free-counsel-to-navigate-deportation.html?_r=0

The Boston Globe, Maria Sacchetti articles

ICE webpage, https://locator.ice.gov/odls/homePage.do

CPCS, https://www.publiccounsel.net/

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