As the government struggles to stay on top of the surge in prosecutions of those accused of entering the country illegally, prosecutors are making errors they normally wouldn’t.
Prosecutors have let things get to the day of trial before realizing there were problems with key witnesses. Bottlenecks in processing and transportation from detention have resulted in more than 50 cases being dismissed simply because defendants didn’t make it to their hearings in time.
In other instances, prosecutors have mistakenly brought juveniles into the federal adult criminal system.
In the month of June, at least three boys under the age of 18 were detained with adults in Border Patrol stations upon their arrest near the border, and then brought for initial appearances in criminal court.
“One boy was incarcerated with adults all weekend because he was arrested on a Friday,” wrote defense attorneys in a letter to Chief District Judge Barry Moskowitz about the implementation of Operation Streamline on June 22. “The government’s screening process is not functioning – our attorneys identified these individuals merely by looking at them, and it was obvious that they were juveniles. The government needs to put greater protections in place to identify juveniles.”
The government handles juveniles it suspects crossed the border illegally much differently than adults.
When minors are apprehended at the border without a guardian, they are handled by the Department of Health and Human Services. They spend some time in facilities run by the agency and if they can be released to a sponsor, normally a relative of the child, they will be. They also enter immigration proceedings.
Up until just a couple weeks ago, minors apprehended along with their parents were separated from their families as their parents faced criminal prosecution. A federal judge ordered the government to stop separating parents from their children, so families apprehended at the border are now sent to immigration proceedings.
In general, when juveniles are charged with crimes in San Diego, they are handled by state prosecutors. Most of the teens who have been caught smuggling fentanyl across the border, for example, are handled by the San Diego district attorney’s office. There are also rules in juvenile court proceedings that protect defendants’ privacy. Their hearings aren’t open to the public and their court records are confidential, for the most part.
One of the boys mistakenly brought into federal court on criminal charges had a bond set at $1,000 during his initial hearing on June 8. His case was dismissed four days later, after his defense attorneys and prosecutors realized the mistake.
It happened again nearly a week later. That case involved a boy who spoke an indigenous language from a region along the border of the Mexican states of Guerrero and Oaxaca called Amuzgo.
While the judge asked the attorneys involved about bond, the defense attorney present, Eric Fish, argued the boy should be released without having to post bail.
“He appears to be a minor,” Fish said. “He also has no criminal history and no deportation history whatsoever.”
After Fish’s initial statements were translated into Spanish and then into Amuzgo for the boy, Magistrate Judge William Gallo asked, “Mr. Fish, you mentioned something about (the boy) perhaps not being an adult. Is that based upon his physical appearance?”
“I have no information beyond his physical appearance,” Fish said. “I’m just looking at him and he looks like a minor to me.”
Fish went to talk to the boy, and the U.S. attorney’s office said it would dismiss the case.
That following Monday, June 18, yet another juvenile was brought in. Attorneys interrupted the judge, according to a recording of the hearing, who was reading the boy his rights through a Bengali interpreter, to ask for the case to be dismissed.
The judge moved to dismiss the case.