By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
And yet, these en masse hearings continue. And though Tucson magistrates now take pleas individually, some questions are still asked of 70 people at a time or of smaller groups of seven at a time.
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," says Chemerinsky. "I haven't seen it — I don't want to offer any conclusions — but I am skeptical that you can, in 30 seconds, give someone a meaningful hearing."
However, during an interview for this article, District of Arizona Chief Judge John Roll defended the way Streamline cases are handled in the state.
"If I thought that due process suffered," he insists, "I certainly would oppose it. But I don't think that is the situation."
He points out that defendants in Streamline have waived their rights to an individual hearing and to a trial.
"Most of the individuals prefer [Streamline]," he says, "because it means they're going to have their cases resolved speedily."
Therein lies the rub, insist Streamline's disparagers. Defendants have to knowingly and willingly waive their rights. But with Streamline, defendants have little choice. Demanding a trial would mean a month or more in custody awaiting a trial date, far more time than a day or two of time served.
It's no wonder, then, that 99 percent of all Streamline defendants plead guilty. Individual plea hearings or actual trials are rarities.
Roll's rationale for the program doesn't impress Professor Murphy.
"It strikes me as sad," she says, "that the defense of a system that cannot afford to give every person the justice they're entitled is that, 'Well, at least this is faster.'
"That just points to the fundamental problem," she says. "If the system cannot accommodate the volume it seeks . . . without fundamentally compromising the principles that make the system fair to begin with, then . . . something is wrong."
Actually, the Border Patrol would like to double or triple the number of Streamline defendants. And there have been discussions about increasing the total to at least 100 a day in Tucson.
Murphy and others assert that Streamline defendants are not knowingly and intelligently waiving their rights. Similarly, the defendants' Sixth Amendment right to counsel suffers from the Streamline process, they contend.
Indeed, several federal public defenders interviewed express doubts that their Streamline clients are receiving the legal representation they need.
Juan Rocha is one. He's worked in both the Yuma and the Tucson courthouses on Streamline cases, and he says, particularly in Tucson's factory-like churn, he feels helpless to assist Streamline defendants.
"In Tucson, you're basically shepherding people to prison or to deportation proceedings," he says. "Because you're not really doing much for them."
William Fry, federal public defender supervisor in Del Rio, says the number of Streamline defendants in the Texas court fluctuates, from a low of 13 to 20 a day to a high of 80 to 110.
Because his lawyers get to interview their clients only the day before they go in front of a judge, there's little time to research the prosecution's claims against the defendant or to suss out possible citizenship claims.
"The defense lawyer in many ways has to buy a pig in a poke," Fry says. "We have to take at face value what the government says it's got on this guy when we make our decisions. And we only have a day to do it in."
In Tucson and Yuma, defense attorneys have even less time, as they meet Streamline clients on the morning of their hearings. In Tucson, lawyers can consult with their clients one-on-one. In Yuma, federal public defenders may have to address defendants in groups of four to six.
Rocha says he knew of several cases in Yuma in which the Border Patrol had, at one point, U.S. citizens in custody, ready to be presented to the Streamline judge.
Once someone is identified as a citizen, the Streamline charges can be dismissed. But determining citizenship can be complex and time-consuming. In fact, defendants may not be aware that they have a citizenship claim.
And there are other problems that arise when a lawyer doesn't get to spend enough time with a client.
For instance, charges against juveniles, those not competent to stand trial, or others who speak indigenous languages, rather than Spanish or English, are supposed to be dismissed by the prosecutor, according to an understanding between federal attorneys and defense lawyers in Streamline.
Heather Williams, a supervisor in the Tucson public defender's office and one of Streamline's most outspoken critics, says this does not always happen. The very nature of the mass proceedings and the speed with which they occur do not allow defense attorneys time to investigate each case thoroughly.
"We find people who turn out to be juveniles," she says in her office near DeConcini Courthouse. "There's a whole other proceeding that's supposed to happen if somebody's a juvenile in federal court charged with a crime. And we find out after the fact."
Because of the language gap (some defendants even speak indigenous languages such as Mixtec or Olmec), Williams says her office sometimes learns afterward that a client had no idea of what was going on during a Streamline hearing.