Friday, August 1, 2008

More evidence about injustice of Postville surfaces.

Last week, Dr Erik Camayd-Freixas, the court appointed interpreter who blew the whistle on the flagrant abuses of civil rights that marked the aftermath of the ICE raids in Postville Iowa last May, testified before the House Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law.

Additionally, The ACLU has acquired a copy of a Government "manual" distributed to defense lawyers assigned to represent the immigrant workers arrested in the meat packing raids. The manual contians prepackaged scripts for plea and sentencing hearings as well as documents providing for guilty pleas and waivers of rights to be used by both the judges and attorneys in expediting procedures as quickly as possible with little regard for due process.

"This document provides further evidence of the government's disturbing pressure cooker tactics for mass guilty pleas that assumed guilt instead of protecting the constitutional presumption of innocence," said ACLU Immigrants' Rights Project Director Lucas Guttentag. "Along with the workers, fairness and due process were the victims of the Postville prosecutions."

The government "manual" provided for the workers to waive all their legal rights and in the overwhelming majority of cases, to plead guilty to charges of falsely using identity documents for employment. It was an important tool used to rush defendants through the criminal justice and immigration systems without a criminal trial or immigration proceedings. The plea forms in the "manual" included a requirement barring immigrants from pursuing any legal claims or procedures under the immigration laws.

…. The troubling system implemented by the U.S. Attorney's Office and the Department of Homeland Security appeared designed to undermine fairness and due process by criminally prosecuting the workers under circumstances that undermined their ability to understand or protect their rights.


View Government Manual (PDF)

When viewed together these two important pieces of evidence paint a vivid picture of the gross abuses of power and disrespect for basic constitutional protections that marked the aftermath of the Postville raid

What follows are the prepared remarks of Dr Camayd-Freixas from the congressional hearing:



July 24, 2008 at 11:00am
1310 Longworth House Office Building



Good morning, Chairwoman Lofgren, and distinguished members of the Subcommittee. My name is Dr. Erik Camayd-Freixas. I was one of 26 interpreters who started the court hearings at Waterloo on May 13, 2008, and one of approximately 16 interpreters who stayed the whole two weeks, until May 22.

The role of the Interpreter is defined in Rule 604 of the Federal Criminal Code and Rules(1989) as both an Officer of the Court and the Court’s Expert Witness. In that impartial capacity, I wrote my essay, Interpreting after the Largest ICE Raid in US History, which I respectfully submit for the congressional record. I finished the essay on June 13, with the intention of sending it to an educational trade journal for translators and interpreters.

I first sent my essay to the court and to the group of interpreters with whom I worked in Waterloo. After proper consultation and several requests, I granted permission to forward the essay to family and friends. Immediately, I began to receive, on a daily basis, scores of e-mails of support from attorneys, academics, other interpreters, and people in all walks of life around the country. Distributed by people over the Internet, in two weeks my essay had been read by thousands, had made it to Congress, and later to the media.

The essay can be found at the end of this statement.

In my capacity as the court’s expert witness I observed that the arrest, prosecution, and conviction of 297 undocumented workers from Postville was a process marred by irregularities at every step of the way, which combined to produce very lamentable results.

It is important to note that the initial appearances, plea hearings, and sentencing hearings were presided by different magistrates and judges, and that the interpreters were the only officers of the court who were present at every step of this fast-tracking operation,including the individual interviews in jail, which were not accessible to judges or prosecutors.

This unprecedented operation was a learning experience for all concerned. It was also a pilot operative to be replicated at a similar or smaller scale throughout the country. In this context, it is the duty of the interpreter, as the court’s expert, to ensure that the court is not misled, and to bring to the court’s attention any misunderstandings and impediments to due process.

While on location, I was only able to give the court a sketchy oral report. Only after careful research, analysis, and reconstruction of the events was I able to make a detailed written report in the form of the abovementioned essay. Moreover, I had to do this after the cases were already closed, so as not to influence their outcome, which is the rationale for the confidentiality clause in the interpreter’s code of ethics.

It is also important to note that I maintained an impartial position throughout the proceedings and I remain impartial today. All my judgments were arrived at from such impartial perspective, in the same way that judges or juries can emit impartial judgments and conclusions of fact.

I had occasion to observe and document the following problems in the judicial process:

1) The compound and quarters where the detainees were kept were not certified by the DOJ or the Bureau of Prisons.

2) The court failed to maintain a physical separation and operational independence from the ICE prosecution.

3) There was inadequate access to legal counsel.

4) The court failed to provide a level playing field for the (centralized) prosecution and the (fragmented) defense.

5) At initial appearance there was no meaningful presumption of innocence.

6) Many defendants did not appear to understand their rights, particularly the meaning and consequences of waiving their right to be indicted by a grand jury.

7) There was no bail hearing, as bail was automatically denied pursuant to an immigration detainer.

8) The heavier charge of aggravated identity theft, used to leverage the Plea Agreement, was lacking in foundation and never underwent the judicial test of probable cause.

9) Many defendants did not appear to understand their charges or rights, insisting that they were in jail for being in the country illegally (and not for document fraud or identity theft), and insisting that they had no rights.

10) Many defendants did not know what a Social Security Number is or what purpose it serves. Because “intent” was an element of each of the charges, many were probably not guilty, but had no choice but to plead out.

11) The denial of bail, the inflated charge, and the leveraged Plea Agreement combined to create, for the many sole providers whose families were put in jeopardy, a situation of duress under which the pleas were obtained. Under these circumstances, the pleas, in many cases, may have been coerced.

12) At sentencing, the judges had no discretion to administer justice, as they were presented with a binding and coerced Plea Agreement.

13) It was a foreseeable effect that, for the many sole providers whose families were put in jeopardy, the recommended prison sentence would in fact result in a cruel and unusual psychological punishment.

In order to accurately interpret the meaning and spirit of the message, the interpreter has to identify with and “become” each speaker. Seeing from within the perspective of the other is a common procedure in legal interpreting. When I assumed the perspective of most defendants, I found the charges and rights to be incomprehensible; I felt that a great injustice was being done; and I found their mprisonment, with their families in jeopardy,to be an intolerable burden.

I will now concentrate briefly on the defendants’ inability to understand their charges and rights. This was due to the interplay of four factors:

1) It was unclear to what extent the numerous ethnic Mayans understood Spanish as a second language.

2) There are vast cultural differences between Mexican and Guatemalan rural cultures, on the one hand, and American legal culture on the other.

3) It is my expert opinion as an educator that, due to their lack of schooling and low rate of literacy, most of the defendants had a level of conceptual and abstract understanding equivalent to that of a third grader or less. They needed much more time and individualized legal counsel than could be remotely provided by this fast-tracking process under the average ratio of 17 clients per attorney.

4) The court was put in a position of interdependence with the prosecution, which resulted in the court sending very mixed messages. For example, telling defendants in chains, without right of bail, and who are being fast-tracked without regard for individual circumstance, that they have the presumption innocence.

In general, the defendants were not able to understand the far-fetched, abstract, and derivative concept of “identity theft,” because they felt they had not literally stolen from anybody, but had in fact purchased the documents necessary to obtain work, paying up to $300 for them.

Similarly, many had trouble understanding the charge of Social Security fraud because they felt they had not done anyone any harm. They simply understood that both were arbitrary charges brought by the government for the sole reason that they were in the country illegally and that, therefore, they had no rights.

They further understood that, because they were in the country illegally, they had no chance of ever wining at trial, and that its outcome was predetermined. They had lost all confidence in our justice system. Some even distrusted their own court appointed lawyers, who had come to deliver a forcible Plea Agreement that offered them no viable option. If they pleaded not guilty, they could end up waiting longer in jail, without bail, for a trial they felt they could never win.

Whatever rights they were told they had made absolutely no difference, so they kept insisting that they had no rights because they were here illegally. With their rights being meaningless or denied, and without understanding the nature of the charges against them, they were unable to aid in their own defense.

Their decision, both to waive grand jury indictment or other rights and to plead guilty, was solely based on which was the fastest way to get back home and look after their families. Nothing else had any real meaning.

Download PDF of Dr Camayd-Freixas' Testimony

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