REPRESENTING FOREIGN NATIONALS

CONSULAR NOTICIATION: Houston Chronicle calls on Texas Governor to Halt Medellin Execution

2008-07-23T04:50:00.001-07:00

The Houston Chronicle editorial July 22, 2008. makes it clear that the issue of Medellin's guilt or innocence is not an issue. However, they express concern as to the consequence of the State of Texas executing Medellin on August 5, 2008, quoting Justice Stevens from the Medellin opinion, "One consequence of our form of government is that sometimes states must shoulder the primary responsibility for protecting the honor and integrity of the nation," wrote Stevens. "Texas' duty in this respect is all the greater since it was Texas that — by failing to provide consular notice in accordance with the Vienna Convention — ensnared the United States in the current controversy."

The Houston Chronicle: "If Medellin is executed as scheduled on Aug. 5 without a review of his case, it will send other nations the message that they need not honor their commitment to afford detained Americans access to U.S. diplomats. If states or provinces within a nation have the right to ignore the treaty, the safety of U.S. citizens overseas will be jeopardized. The review of Medellin's case ordered by the World Court would likely have been a swift, pro forma procedure in which a Texas court reaffirmed his confession and conviction, allowing the execution to go forward. By defying international law and rebuffing President Bush and the World Court, Texas would set a precedent Americans traveling abroad will regret."

The Chronicle calls on the Texas Governor to halt the execution: " Texas Governor Rick Perry can prevent that outcome by halting the execution while the necessary court review is carried out. Medellin will still receive the sentence he deserves without creating unnecessary risk for innocent people in the future. As Justice Stevens noted, "having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another."

CONSULAR NOTIFICATION: ICJ Fixes Deadline for Briefing by US

2008-07-22T08:53:00.000-07:00

Source: ICJ Press Release

Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America)

The Court fixes the time-limit for the filing of written observations by the United States of America

THE HAGUE, 22 July 2008. The International Court of Justice (ICJ), principal judicial organ of the United Nations, has fixed 29 August 2008 as the time-limit for the filing by the United States of America of written observations on the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America) submitted by Mexico on 5 June 2008.

The Court took this decision pursuant to Article 98, paragraph 3, of the Rules of Court, after ascertaining the views of the Parties. It reserved the right, after the written observations of the United States of America have been filed, to afford the Parties the opportunity of furnishing further written explanations, as provided for in paragraph 4 of the aforementioned Article 98.In its Order indicating provisional measures of 16 July 2008, the Court stated that it was “in the interest of both Parties that any difference of opinion as to the interpretation of the meaning and scope of their rights and obligations under paragraph 153 (9) of the Avena Judgment be resolved as early as possible”. It added that it was for the Court to ensure that a final judgment on the Request for interpretation was reached “with all possible expedition”.

IMMIGRATION POLICY: Employers Pushing Back

2008-07-21T05:52:00.000-07:00

According to today's New York Times, (Opinion, July 21, 2008), employers are "pushing back" against the disarray caused by a failed immigration policy.

"There is nothing good about the country’s ever more merciless campaign of immigration enforcement. But at least there are emerging signs of resistance, from one of the most important, yet curiously disengaged, players in the debate: employers. "

"Workplace raids by federal agents have vividly exposed the widespread hiring of illegal workers, but many employers counter that they are not all scofflaws. Antidiscrimination laws bar them from looking too closely at employees’ identity papers, or checking their immigration status after they are hired. “The system is just as broken for employers as it is for immigrants,” a lawyer for two California companies told Ms. Preston."

Editor's Note: For example, see the recent prosecution of MacDonalds for "encouraging illegal aliens to reside in the US".

Click for complete editorial.

CONSULAR NOTIFICATION: Update: ICJ issues Decision

2008-07-19T01:00:00.000-07:00

Update: July 19, 2008. Legislation has been introduced in the US Congress to prevent the executions: HR 6481.

"To create a civil action to provide judicial remedies to carry out certain treaty obligations of the United States under the Vienna Convention on Consular Relations and the Optional Protocol to the Vienna Convention on Consular Relations. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ‘Avena Case Implementation Act of 2008’. SEC. 2. JUDICIAL REMEDY. (a) Civil Action- Any person whose rights are infringed by a violation by any nonforeign governmental authority of article 36 of the Vienna Convention on Consular Relations may in a civil action obtain appropriate relief. (b) Nature of Relief- Appropriate relief for the purposes of this section means-- (1) any declaratory or equitable relief necessary to secure the rights; and (2) in any case where the plaintiff is convicted of a criminal offense where the violation occurs during and in relation to the investigation or prosecution of that offense, any relief required to remedy the harm done by the violation, including the vitiation of the conviction or sentence where appropriate. (c) Application- This Act applies with respect to violations occurring before, on, or after the date of the enactment of this Act."

Update: July 16, 2008:
http://obtainingforeignevidence.blogspot.com/2008/07/vienna-convention-icjs-decision-usa.html
ICJ issues decision, requesting that the US take all measures necessary to ensure that five Mexican nationals are not executed pending its final judgment.
Previously posted:

Hearings are Underway on June 19 and June 20 at the ICJ regarding Mexico's Request for a Suspenion of Execution of Five Mexican Nationals.
*****
On June 5, 2008, Mexico instituted proceedings before the Court by filing a Request for Interpretation and a Request for the Indication of Provisional Measures of Protection. "This case concerns a request by Mexico that the Court interpret paragraph 153(9) of its Judgment rendered in the Case Concerning Avena and Other Mexican Nationals to provide guidance as to the scope and meaning of the remedial obligations incumbent upon the United States. Mexico hereby designates Mr. Juan Manuel Gómez-Robledo, Ambassador, Undersecretary for Multilateral Affairs and Human Rights of the Mexican Ministry of Foreign Affairs, Mr. Joel Antonio Hernández García, Ambassador, Legal Adviser to the Mexican Ministry of Foreign Affairs, and Mr. Jorge Lomónaco Tonda, Ambassador of Mexico to the Kingdom of the Netherlands, as its Agents in this case."
For additional information see,
Mexico's requests are now posted on the ICJ website:·
5 June 2008Request for Interpretationhttp://www.icj-cij.org/docket/files/139/14582.pdf · 5 June 2008Request for the Indication of Provisional Measureshttp://www.icj-cij.org/docket/files/139/14580.pdf

IMMIGRATION RELATED CRIMES: Aggravated Identity Theft - 9th Circuit Requires Knowledge

2008-07-18T19:37:00.000-07:00

On July 17, 2008, the Ninth Circuit in USA v Miranda-Lopez ruled that, that the crime of aggravated identity theft, 18 U.S.C. § 1028A(a)(1), requires proof that, among other things, the defendant knew that the means of identification belonged to another person. It is not enough to prove only that the defendant knew he was using a false document. See United States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. 2008).

DRUG SEIZURE AT AIRPORT- Convictions Reversed

2008-07-18T15:26:00.000-07:00

2nd Circuit, USA v Lorenzo and Lorenzo, July 18, 2008.

The Court reversed and remanded for entry of judgments of acquittal. Click for full opinion.

" BACKGROUND The present prosecutions arose out of a controlled delivery of narcotics initiated after officers with Customs and Border Protection (“CBP”) discovered over three kilograms of cocaine hidden in defendant Francisca Leerdam’s suitcases during a routine customs examination at John F. Kennedy International Airport (“JFK Airport”) on October 13, 2005. The evidence at trial consisted largely of, inter alia, Leerdam’s testimony as to the
events surrounding the October 13, 2005 trip and a previous trip she made to the United States a month earlier, and the testimony of various agents involved in the customs search and controlled delivery; the Lorenzos offered no evidence. "

“A defendant bears a heavy burden in seeking to overturn a conviction on grounds that the evidence was insufficient.” United States v. Cruz, 363 F.3d 187, 197 (2d Cir. 2004).

"The government’s argument focuses on various events that purportedly link Julio to this conspiracy. However, the evidence highlighted by the government, when considered in the aggregate, still lacks a critical element–-any indication from which a jury could reasonably infer that Julio knew of the nature and specific object of the conspiracy. First, although there is ample evidence demonstrating the existence of the conspiracy, and that Julio was present at and participated in events that furthered the conspiracy, there is insufficient evidence to show that he did so knowingly and with the specific intent to further a cocaine smuggling and distribution conspiracy. "

WHITE COLLAR CRIME AND CRIMINAL IMMIGRATION: Prosecution of MacDonald Franchise Results in Plea

2008-07-18T05:30:00.000-07:00

As reported by Market Watch, " McDonald's Franchisee Admits to Two Felony Counts - Agrees to Pay $1 Million Fine One current and one former top executive for a franchisee that owns 11 McDonald's restaurants in and around Reno, Nev., and the corporation itself pleaded guilty in federal court in Las Vegas today to federal felony immigration offenses for encouraging illegal aliens to reside in the United States. These charges stem from an investigation by U.S. Immigration and Customs Enforcement (ICE) into allegations the company knowingly hired illegal alien workers. "

"The government and Mack Associates agreed that the corporation will pay a $1 million fine -- $500,000 for each count, the maximum allowed -- and be placed on probation during the period that the fine is outstanding. The court accepted this agreement and sentenced Mack Associates today to one year of probation and ordered the corporation to pay the agreed upon fine, with $300,000 payable immediately and the balance to be paid within nine months. The plea agreement details how Mack Associates' management employed individuals they knew were in the country illegally, including two restaurant managers, by furnishing them with names and Social Security numbers belonging to other individuals. In addition, Jimmy Moore, 47, the franchisee's former vice-president, pleaded guilty to one felony count of inducing an illegal alien to remain in the United States. At sentencing, Moore faces a maximum penalty of up to five years in prison and a $250,000 fine. A third defendant in the case, Anntoinette Richmond, 44, the corporation's controller, has been charged with one misdemeanor count of continuing employment of an unauthorized alien."

IMMIGRATION CONSEQUENCES: California Appellate Court Upholds Denial of Motion to Withdraw Plea Based on Unanticipated Immigration Consequences

2008-07-17T04:49:00.001-07:00

People v. Abergel, 2008 Cal. App. Unpub. LEXIS 5630 (2008), the appellant , an Israeli national, had sought to set aside his conviciton for a drug offense. The Appellant filed various affidavits, including an affidavit of his trial counsel. Even the trial court's reduction of the offense to a misdemeanor and later dismissal did not allow Mr. Abergel to reenter the United States.

"In 2005, on appellant's motion under Penal Code section 1203.4, the superior court reduced appellant's conviction to a misdemeanor, and then set aside his plea and dismissed the case. This dismissal did not, however, eliminate the federal immigration consequences of the conviction. (See Ramirez-Castro v. I.N.S. (9th Cir. 2002) 287 F.3d 1172, 1174.) "

" In a declaration in support of his motion, appellant stated that to his best recollection no advisement of the immigration consequences of his plea was given when he pled. He had believed that after compliance with the conditions of probation there would follow no criminal or immigration consequences. Had he known of those consequences, including perpetual exclusion from the United States, he would not have pled "guilty." Similarly, he would have asked counsel or the court about the exact immigration consequences of the plea, and upon knowing them he would have refused the plea agreement. Appellant also described his family, business, and other ties to the United States.Appellant later filed a second declaration, in which he stated that when he entered the disposition and pled, he had been in the United States for about one and one-half years and barely understood English, and his comprehension of the proceeding was "minimal." He was never asked if he needed an interpreter. Appellant further declared that his attorney had advised him to plead so as to receive a one-year sentence. Under it, he would spend only three months in confinement, in addition to the three months he had already served, whereas if he were convicted he would receive a 10-year sentence. In essence, the attorney's advice was that if appellant pled guilty he would "go home"; but instead he was deported.Appellant also filed a declaration by Alex Kessel, who had been his attorney for the original proceedings, including the plea. Kessel stated that although he could not recall the specific course of proceedings ] in appellant's case, in 1991 it was his normal custom and practice to advise clients "in a general sense of the immigration consequences of their guilty plea." Before they pled, he generally advised them "consistent with the language of Penal Code Section 1016.5." Kessel added that in 1991 he believed from experience that convicted persons would not "categorically" be subjected to deportation proceedings.

The Court ultimately rejected the claim:

"Finally, we observe that appellant's position appears insufficient on the merits. First, notwithstanding appellant's legal argument, there is no factual showing Kessel either advised appellant he would not be deported, or otherwise affirmatively misadvised him. Second, appellant has not shown that his attorney was responsible for any claimed failure by appellant to comprehend the consequences of his plea at the time it was taken. The record reflects that appellant was fully advised of those consequences, and that he twice stated that he understood them. As to the requirement that a defendant claiming ineffective assistance of counsel must also show prejudice (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050-1051), there is nothing presented in appellant's argument that suggests appellant would have received a more favorable result if he had taken the case to trial."

IMMGRATION DETENTION: New Report on Detainee Abuse in Tacoma

2008-07-16T05:19:00.000-07:00

A new report on the treatment of detainee claims that detainees have been mistreated at a privately-run Tacoma facilityJuly 16, 2008, SeattleTimes.

The report's findings, released during a news conference Tuesday by the law school's human-rights clinic in collaboration with the immigrant-rights group OneAmerica, is intended to draw attention to conditions at the privately run Tacoma facility. The findings come as immigrant detention has become the fastest-growing form of incarceration in the U.S., the study's authors noted. Gwynne Skinner, a visiting professor from Willamette University College of Law in Oregon who oversaw the study, said the alleged conditions violate international human rights. Seattle University students interviewed 41 detainees — one-third of them refugees — four attorneys and one family member to gauge their experiences at the center. The real names of the detainees were not used in the report. Many of their complaints stemmed from overcrowding and ranged from overzealous strip-searches to delays in receiving medical care. "As Americans concerned with upholding our Constitution and assuring justice and human rights, we should remember that America is degraded when the government fails to uphold those very rights that make us a great country," said Pramila Jayapal, executive director of OneAmerica, formerly Hate Free Zone.
Officials with the U.S. Immigration and Customs Enforcement, which pays the detention center's operator, GEO Group, $95 a day for each detainee it houses, said the report is "filled with inaccuracies and vague allegations."
Lorie Dankers, spokeswoman for ICE, said the detention center meets, or in many cases exceeds, its own as well as national detention standards.
(For more information about the rport, contact Katherine Hedland Hansen, Communications Director, Seattle University School of Law, at (206) 398-4108, or hedlankd@seattleu.edu; or Jackie O’Ryan, Communications Director, OneAmerica, (206) 300-5059, or Jackie@WeAreOneAmerica.org.

DETENTION OF ENEMY COMBATANTS

2008-07-15T17:40:00.000-07:00

The Fourth Circuit issued an opinion today in the case of Al-Marri, as reported by the New York Times:

" July 16, 2008 Court Backs Bush on Military Detentions By ADAM LIPTAK. President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision. But a second, overlapping 5-to-4 majority of the court, the United States Court of Appeals for the Fourth Circuit, ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., must be given an additional opportunity to challenge his detention in federal court there. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled."

"The decision was a victory for the Bush administration, which had maintained that a 2001 Congressional authorization to use military force after the Sept. 11 attacks granted the president the power to detain people living in the United States. The court effectively reversed a divided three-judge panel of its own members, which ruled last year that the government lacked the power to detain civilians legally in the United States as enemy combatants. That panel ordered the government either to charge Mr. Marri or to release him. The case is likely to reach the Supreme Court. How helpful the decision will be to Mr. Marri remains to be seen, as the majority that granted him some relief was notably vague about what the new court proceeding should look like. In that respect, Tuesday’s decision resembled last month’s decision from the United States Supreme Court granting habeas corpus rights to prisoners held at Guantánamo Bay."

SENTENCING AND FOREIGN CONVICTIONS: Can be basis for upward departure

2008-07-15T05:49:00.000-07:00

Case in Brief: United States v Port, 2008 U.S.App. LEXIS 14720 (8th Cir.)

The district court identified the allowable and impermissible uses of foreign convictions. It then properly used the uncontested fact of the foreign convictions as part of the qualitative analysis of whether the actual criminal history computation accurately represented Port's risk of recidivism. See U.S.S.G. § 4A1.3(a)(4)(A) ("[T]he court shall determine the extent of a departure under this subsection by using, as a reference, the criminal history category applicable to defendants whose criminal history or likelihood to recidivate most closely resembles that of the defendant's."). Port's foreign convictions demonstrate a clear risk of recidivism given the close relationship between his present offense and his prior offenses and given Port's failure to cease participation in fraudulent enterprises even after his incarcerations for similar offenses. The district court did not abuse its discretion in taking these offenses into consideration as rationales for the upward departure.

To the extent Port challenges the district court's departure as a "jump" to criminal history Category III without an explicit discussion of whether a departure based on Category II would suffice, his argument is without merit. The district court made clear that it felt Category III itself might be under-representative as to Port. Further, we have previously held that such a discussion is not always required.

FILMS AND DOCUMENTARIES OF NOTE: La Sierra

2008-07-15T04:23:00.000-07:00

La Sierra : "More than 30,000 people have been killed over the last ten years in Colombia’s bloody civil conflict, in which left-wing guerillas fight against the government and illegal right-wing paramilitary groups. Recently, as guerillas and paramilitaries sought to control marginal city neighborhoods, urban gangs aligned themselves with each side. In this way, the national conflict was translated into a brutal turf war that pitted adjacent barrios against each other. The documentary La Sierra explores life over the course of a year in one such barrio (La Sierra, in Medellin), through the prism of three young lives

Edison, aka “The Doll,” is a paramilitary commander in La Sierra. At the age of 22, he is also the de facto mayor of the neighborhood and a playboy who has fathered six children by six different women. Openly dedicated to and excited by his life of violence, he is also an intelligent and charismatic young man. As we follow him through the armed conflict, its victories and setbacks, he shares his dreams for himself and his children, and explains his attachment to what he calls “my war.” We follow his life up to the moment he is gunned down in the street, and then witness his family’s suffering and faith in the face of tragedy.
Cielo, age 17, was displaced from the countryside in sixth grade, when her brother and father were murdered by guerillas. A mother at the age of 15, she was widowed when the father of her son (a gang member) was killed. Now Cielo is devoted to a new boyfriend, a paramilitary, who she visits in jail every Sunday. With little or no money to her name, Cielo goes downtown to beg and sell candies on the buses, resisting her friend’s suggestion of prostitution. After her rocky relationship with her boyfriend unravels, Cielo finally gives in and takes a job in Medellin’s red light district.
Jesus, 19, is a mid-level paramilitary member. Badly wounded when a homemade grenade blew up in his hands and face, Jesus presents himself as ready for death at any moment and hoping for little more than the opportunity to continue indulging his taste for marijuana and cocaine. But as the war in La Sierra comes to a end, and the paramilitaries begin a government-sponsored disarmament process, Jesus dreams of beginning a life without war.La Sierra is an intimate, unflinching portrait of three lives defined by violence, and a community wracked by conflict. Over the course of a year these lives, and the life of the barrio itself, each undergo profound changes, experiencing victory, despair, defeat, death, love, and hope. In a place where journalists are seldom allowed, Scott Dalton and Margarita Martinez spent a year filming, interviewing, and building trust. The result is a frank portrayal that not only includes startling scenes of graphic violence and its aftermath, but also reveals intimate moments of love and tenderness, and shows the everyday life that manages to coexist with conflict.

TERRORISM TRIALS: BOP restrictions on defendant's communications do not implicate 6th Amendment

2008-07-14T05:04:00.001-07:00

United States v. Kassir, 2008 U.S. Dist. LEXIS 52713 (S.D. N.Y.)

Dicussion of the BOP restrictions for defendant pending trial pursuant to BOP SAMs (Special Administrative Measures). The Court rejected the defendants argument that : " the SAMs violate his Sixth Amendment right to counsel because "the limitation on counsel's ability to rely on paralegals, investigators, and other staff to meet with the defendant, or to share information freely with them prevents counsel from having their staff or the investigator employed by the defense communicate as they see fit with experts or witnesses." These claims have no merit.

CULTURAL DEFENSE AND SENTENCING: Former Consular Official Asks Court to Consider Cultural Issues in Sex with Minors Abroad

2008-07-13T05:24:00.000-07:00

According to Associated Press, Gons Gutierrez Nachman, a former US Consular official pending sentencing for having sexual relations with minors while outside the United States, will ask the Court for leniency based on cultural differences in the countries where he engaged in such condut. A psychological evaluation might support his proposition that that "cultural differences led Nachman to believe that sexual contact with teenage girls was acceptable, and that should have an impact on what kind of sentence he receives. "

In a letter Nachman wrote from jail to the director of the Foreign Service pleading with him to intervene and get the charges dropped, Nachman explained the cultural differences as he sees them. "In the Congo, women develop quickly, both physically and emotionally, due to the substantial responsibility society places on them from early childhood," Nachman wrote. "In Kinshasa, the vast majority of teenagers are sexually active with men that are substantially older. ... Their main concern is marrying young girls to men with financial stability, a concern dating thousands of years and cutting across cultural lines."

"The case has been unusual on several fronts. It includes allegations that Nachman pressured attractive female visa applicants in Brazil for sex. Nachman admitted that he had sex with two women whom he met in the visa application process, but he denied coercing them and he was never charged in the matter. "

CRIMINAL IMMIGRATION: Interpreter Speaks Out about Mass Pleas In Iowa

2008-07-11T03:29:00.000-07:00

The New York Times July 11, 2008, reports "An Interpreter Speaking Up for Migrants", Julia Preston.
(See related story, 270 Workers Sentenced in Federal Court to Five Months)

" In 23 years as a certified Spanish interpreter for federal courts, Erik Camayd-Freixas has spoken up in criminal trials many times, but the words he uttered were rarely his own. Then he was summoned here by court officials to translate in the hearings for nearly 400 illegal immigrant workers arrested in a raid on May 12 at a meatpacking plant. Since then, Mr. Camayd-Freixas, a professor of Spanish at Florida International University, has taken the unusual step of breaking the code of confidentiality among legal interpreters about their work. In a 14-page essay he circulated among two dozen other interpreters who worked here, Professor Camayd-Freixas wrote that the immigrant defendants whose words he translated, most of them villagers from Guatemala, did not fully understand the criminal charges they were facing or the rights most of them had waived."

"He suggested many of the immigrants could not have knowingly committed the
crimes in their pleas. “Most of the clients we interviewed did not even know what a Social Security card was or what purpose it served,” he wrote. He said many immigrants could not distinguish between a Social Security card and a residence visa, known as a green card. They said they had purchased fake documents from smugglers in Postville, or obtained them directly from supervisors at the Agriprocessors plant. Most did not know that the original cards could belong to Americans and legal immigrants, Mr. Camayd-Freixas said."
Ms. Smith went repeatedly over the charges and the options available to her
clients, Professor Camayd-Freixas said.

He cited the reaction of one Guatemalan, Isaías Pérez Martínez: “No matter how many times his attorney explained it, he kept saying, ‘I’m illegal, I have no rights. I’m nobody in this country. Just do whatever you want with me.’ Professor Camayd-Freixas said Mr. Pérez Martínez wept during much of his meeting with Ms. Smith. Ms. Smith, like more than a dozen other court-appointed defense lawyers, concluded that none of the immigrants’ legal options were good. Prosecutors had evidence showing they had presented fraudulent documents when they were hired at Agriprocessors. In plea agreements offered by Mr. Dummermuth, the immigrants could plead guilty to a document fraud charge and serve five months in prison. Otherwise, prosecutors would try them on more serious identity theft charges carrying a mandatory sentence of two years. In any scenario, even if they were acquitted, the immigrants would eventually be deported.

Worried about families they had been supporting with their wages, the immigrants readily chose to plead guilty because they did understand that was the fastest way to return home, Professor Camayd-Freixas said. “They were hoping and they were begging everybody to deport them,” he said.

TERRORISM PROSECUTIONS: Acquitted in Trial, Government now Prosecutes Sami Al-Arian

2008-07-11T01:00:00.000-07:00

July 11, 2008 Update: Dr. Al-Arian granted bail on contempt charge, but still detained for removal.

"Dr. Sami Al-Arian Granted Bail In a set back for the government, Dr. Sami Al-Arian was granted bail by Judge Leonie M. Brinkema today. Over the objections of the government and the pre-trial services, Judge Brinkema agreed that Dr. Al-Arian was not a flight risk and no danger to the community. The government has suggested that it may now block release by having Immigration officials hold Dr. Al-Arian for deportation — despite the fact that it is trying to hold him for years under a criminal sentence rather than deport him. "

See also the Blog of Jonathan Turley regarding the questions asked by Judge Brinkema, which may signal that the Court is skeptical about the Government's continued prosecution of Dr. Al-Arian.

Previously Posted June 28, 2008:

The US Government added new criminal contempt charges against former Professor Sami Al-Arian, who was acquitted at trial of the primary terrorism related charges. Dr. Al-Arian plead guilty to a lesser offense, and has served his sentence. He was also sentenced to a year in jail for refusing to testify to a federal grand jury in Virginia. Dr. Al-Arian was pending removal from the United States. However, the Government has now indicted him on criminal chrages for such refusal. However, his attorney has provided signed affidavits verifying that Dr. Al-Arian has no information regarding the subject of the grand jury. For additional information, see Washington Post, June 27, 2008, or the website, "Free Sami Al-Arian".

See also the Blog of Dr. Al-Arian's attorney Jonathan Turley.

In March 2008, former professor Ashqar acquitted at trial in Chicago was sentenced to 11 years for refusal to testify before a federal grand jury. For additional information, see New York Times.

IMMIGRATION CONSEQUENCES: Attorney Obligation to Advise of Immigration Consequences

2008-07-10T19:32:00.001-07:00

The Aspen Daily News reported the case of a Salvadorean immigrant, whose fate rests with a Judge who must decide whether he received ineffective assistance of counsel in the matter of a drug offense. The article provides a nearly perfect example of the dilemma faced by clients, and the complexity of advising an immigrant client. Good result in a criminal case does not equal good result for a client's future.

"Orellano-Santos had five “bindles” of the drug, totaling 9.43 grams, hidden in various places on his body. He originally faced drug-trafficking charges carrying an all-but-certain state prison term. But by November of that year, his attorney was able to broker a deal with the district attorney’s office that recommended that Orellano-Santos not spend a moment in a county jail.

When he consulted Glenwood Springs-based attorney Ted Hess to question why he was denied his temporary visa, Hess explained that because he had pled guilty to the felony drug charge, he was no longer eligible for any temporary status. ...... The complaint alleges that his attorney did not inform him that pleading down to the cocaine possession felony meant he would lose his temporary visa. Colorado requires defense lawyers to inform defendants with questionable immigration standings of the adverse deportation consequences of entering a guilty plea, in addition to the standard Sixth Amendment rights of the accused. Six other states have similar requirements of attorneys or judges. A 1987 Colorado Supreme Court ruling states that when a defense lawyer “is aware that his client is an alien, he may reasonably be required to investigate relevant immigration law.”

“People are in this position all the time,” Hess said this week. “It’s kind of a backwater of the criminal justice system, where the collateral consequences turn out to be much worse than the actual punishment for a crime.” The full article can be found at: Aspen Daily News.

IMMIGRATION POLICY: Case of Undocumented Guatemalan Charged with Rape Fuels Debate

2008-07-09T03:21:00.000-07:00

The Governor of Rhode Island has cited the case of a Guatemalan accused or rape, in his criticisms of Providence Mayor.
"Here in the smallest state, one of the nation’s biggest issues drew two top elected leaders into a personal, politically charged debate about illegal immigration this week.

The exchange, between Republican Governor Carcieri and Democratic Providence Mayor David N. Cicilline, was prompted by the arrest of Marco Riz, an illegal immigrant from Guatemala who has been living in Providence. Riz, 26, is charged with kidnapping a 30-year-old woman on June 8 outside a Warwick supermarket and raping her in Roger Williams Park in Providence.

A federal Immigration and Customs Enforcement spokesman criticized the Providence police for not checking on Riz’s immigration status when they arrested him twice last year. But the Providence police said they notified the local ICE office about Riz’s arrests and the federal agency never took the action needed to ship him back to Guatemala.

Carcieri entered the fray Monday. In a news release, the governor “decried the City of Providence’s continued refusal to work with federal Immigration and Customs Enforcement officials to prevent illegal immigrants from committing reprehensible crimes against Rhode Island citizens.”

For the complete article, See the Providence Journal June 26, 2008.

IMMIGRATION DETENTION: Another death in ICE custody

2008-07-07T12:37:00.000-07:00

From the Florida Immigrant Advocacy Center, July 7, 2008, Contact: Cheryl Little, 305/573-1106 ext. 1001, clittle@fiacfla.org

ANOTHER IMMIGRANT DIES IN ICE CUSTODY:
FAMILY AND ADVOCATES DEMAND INVESTIGATION

News Conference

DATE: Tuesday, July 8, 2008
TIME: 2:00 PM
PLACE: Jacques Dessalines Center
8325 NE 2nd Avenue (Miami)
WHO: Family, Lawyers, Community Leaders

Miami, FL – Twenty-three year old Haitian Valery Joseph was pronounced dead on June 20, 2008 at the Glades County Detention Center. On July 8, 2008 Mr. Joseph should have been celebrating his 24th birthday. Instead, his family and community leaders will be attending a press conference to demand an investigation into his untimely death.

More than 70 immigrants have died in the custody of Immigration and Customs Enforcement (ICE) since 2004. Florida Immigrant Advocacy Center’s (FIAC) Executive Director Cheryl Little said, “Lack of access to adequate medical care is among detainees’ chief complaint. DHS officials have not kept pace with the exploding ICE population, and there is little oversight or accountability. The ICE detention system is designed to fail detainees like Valery Joseph.” Jean Robert Lafortune, head of the Haitian Grassroots Coalition, adds “We express a deep concern about the sudden death of Valery Joseph. It seems ICE detainee access to medical care is a systemic problem, and we are working with members of Congress to ensure a full investigation into Mr. Joseph’s death.” FIAC represents Mr. Joseph’s family and has requested his medical records.

Recently detainee lack of access to medical care has gained the attention of Congress. Two recent Congressional hearings have highlighted serious deficiencies in medical care and deaths in ICE custody. Little testified before Congress in October 2007 about ICE detainees’ lack of access to adequate medical care. (Testimony Before the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law Committee on the Judiciary: “Detention and Removal: Immigration Detainee Medical Care”). In June 2008 Congress introduced a bill (HB 5059), “The Detainee Basic Medical Care Act of 2008,” that would require ICE to provide medical care that complies with national and international standards and that all deaths in detention be reported to Congress and the public. The Department of Homeland Security’s Office of the Inspector General released a report on deaths in ICE custody just ten days after Mr. Joseph’s death.

INTERPRETER HEARSAY: Important New Case Oregon Supreme Court

2008-07-05T06:02:00.000-07:00

IN THE SUPREME COURT OF THE STATE OF OREGON, July 3, 2008
" The primary question this case presents is whether a translated statement is hearsay and, if it is, whether the statement comes within an exception to the hearsay rule. The trial court ruled that the victim's translated statements were admissible under an exception for reports of sexual abuse, and the jury convicted defendant of one count of sexual abuse and acquitted him on the remaining 10 counts. A divided en banc Court of Appeals affirmed. State v. Rodriguez-Castillo, 210 Or App 479, 151 P3d 931 (2007). The lead opinion in the Court of Appeals reasoned that the statements were not admissible under the hearsay exception on which the trial court had relied. Id. at 489. It concluded, however, that the statements were admissible under OEC 803(28), the residual exception to the hearsay rule. Id. at 496. We allowed defendant's petition for review and now reverse the Court of Appeals decision."

Defendant and his wife lived with their three daughters and their niece in Lincoln County. In June, defendant's uncle, his two sons, and his 13-year-old daughter (the victim) moved into defendant's home. For several weeks, the two families shared the same home. Defendant and his family then moved to California for the summer and returned in October. When defendant and his family returned, the victim began to act differently. The victim reported to a friend, family, and the police that defendant had touched her inappropriately. The specificity and the details of the victim's reports of abuse varied, however. The most detailed and complete report of the abuse occurred during the victim's second interview with a detective.

Because that interview also gave rise to the evidentiary issue that divided the Court of Appeals, we first set out what the victim reported during that interview. We then describe the charges that resulted from the victim's reports of abuse and the evidentiary ruling that gave rise to the Court of Appeals decision.

The victim primarily speaks Spanish. The detective who interviewed her speaks only English. To allow the two of them to communicate, a bilingual middle-school tutor, Pedro Perez, served as an interpreter during the second interview. During that interview, the victim described, through Perez, three incidents of abuse to the detective. The victim reported that the first incident occurred one night while defendant's wife was sleeping in one bedroom with their children, the victim's father and her younger brother were sleeping in the other bedroom, and the victim's older brother was sleeping on the couch in the living room. The victim and defendant were also in the living room watching television. She was on another couch and defendant was on the floor. She said that "defendant touched [her] chest, he touched [her] down below, both places, with his hand." When asked if he touched her "on the outside of her body or the inside of her body," she said, "On the inside." Defendant then "grabbed her around the waist, and wanted her to stand up, and he pulled her by the hand and dragged her into the kitchen" where he exposed his genitals and tried to get the victim to touch them.

* * *
The state charged defendant with one count of first-degree sexual penetration, one count of second-degree sexual penetration, one count of private indecency, and eight counts of first-degree sexual abuse. (1) At trial, the state called the detective to tell the jury the statements, set out above, that the victim had made to him through Perez. Shortly after the detective began recounting what the victim had said during the second interview, defendant's counsel objected on the ground that the detective's testimony was double hearsay; that is, the detective was telling the jury what Perez told him the victim had said, and the evidence was being offered for the truth of the matter asserted -- to prove that defendant sexually abused the victim.

Defendant acknowledged that the victim's out-of-court statements were admissible under an exception to the hearsay rule for reports of abuse. See OEC 803(18a)(b) (authorizing the admission of some out-of-court statements regarding abuse if the declarant is available for cross-examination). He contended, however, that Perez's repetition of those statements to the detective added another layer of hearsay that did not come within any exception to the hearsay rule.

The state responded that the premise of defendant's argument was wrong; in the state's view, Perez's repetition of the victim's statements to the detective did not add another layer of hearsay. The state did not argue that, if Perez's statements added another layer of hearsay, those statements were admissible under an exception to the rule against hearsay. (2) Specifically, the state did not argue (and the trial court did not decide) whether the detective's repetition of Perez's out-of-court statements was admissible under the residual exception to the hearsay rule. See OEC 803(28) (setting out criteria necessary to come within that exception).
After considering the parties' arguments, the trial court overruled defendant's objection, apparently on the ground that both the victim's out-of-court statements and Perez's out-of-court statements were admissible under OEC 803(18a)(b) as reports of abuse. The detective then repeated the victim's statements to the jury, and the state introduced additional evidence to prove defendant's guilt.
***

On appeal, a divided en banc Court of Appeals upheld the trial court's evidentiary ruling but on a different ground. The lead opinion assumed that Perez's repetition of the victim's statements to the detective added another layer of hearsay, and it concluded that Perez's statements were not admissible under OEC 803(18a)(b), as the trial court appears to have ruled. Rodriguez-Castillo, 210 Or App at 489. However, a majority of the court concluded that Perez's statements were admissible under the residual exception to the hearsay rule, OEC 803(28) -- an exception that neither the state had argued before the trial court nor that the trial court had considered. See id. at 496 (lead opinion) (upholding the trial court's evidentiary ruling on that ground); id. at 513 (Edmonds, J., concurring). (4) We allowed defendant's petition for review to consider the evidentiary issue that divided the Court of Appeals.

The detective's testimony reduces to the following paradigm: During the detective's interview with the victim, the victim told Perez that defendant had sexually abused her. Perez then translated and repeated those statements to the detective, who ultimately repeated them to the jury for the truth of the matter asserted; that is, the state offered the detective's testimony to prove that defendant had sexually abused the victim on three separate occasions. In any other context, the detective's testimony would be double hearsay. See State v. Derryberry, 270 Or 482, 488, 528 P2d 1034 (1974) ("[t]he testimony of the police officers that they heard [defendant's friend] say that he heard the defendant say that he stole the furniture was 'double hearsay'"); Christopher B. Mueller and Laird C. Kirkpatrick, 5 Federal Evidence § 8:136 at 244 (3d ed 2007) (describing layered or double hearsay). Mueller and Kirkpatrick provide the following "fairly common" example of double hearsay in their treatise on evidence:
"[A]ssume that M learns from L that K said that the light was green. If M testifies about L's statement describing what K said and the purpose is to prove that the light was green, then M's testimony involves layered (double) hearsay."
5 Federal Evidence § 8:136 at 244. To paraphrase that example, the detective's testimony was double hearsay because the detective testified about Perez's statement describing what the victim said and did so to prove the truth of the matter asserted -- that defendant had sexually abused the victim.

Under OEC 805, the detective's testimony was admissible only if the state could show that each out-of-court statement either came within an exception to the hearsay rule or did not constitute hearsay. See OEC 805 (stating that rule); Hansen v. Abrasive Engineering and Manufacturing, 317 Or 378, 388-89, 856 P2d 625 (1993) (same). The parties agree that, although the victim's out-of-court statements were hearsay, they were admissible under the exception for reports of abuse set out in OEC 803(18a)(b). (5) The parties disagree whether Perez's repetition of the victim's statements to the detective adds another layer of hearsay and, if it does, whether his repetition of her statements comes within an exception to the hearsay rule.

The state contends initially that Perez's statements are not hearsay either because Perez was merely a "language conduit" between the victim and the detective or because Perez was the victim's agent. The state argues alternatively that, if Perez's statements constitute a second layer of hearsay, then the Court of Appeals correctly concluded that his statements came within the residual exception to the hearsay rule. We begin with the state's argument that Perez's repetition of the victim's statements to the detective did not constitute hearsay because Perez served as a "language conduit" between the victim and the detective.
In making that argument, the state notes that OEC 801(3) defines hearsay as an out-of-court "statement * * * offered in evidence to prove the truth of the matter asserted." It then notes that OEC 801(1)(a) defines a statement as "[a]n oral or written assertion." The state reasons that, in translating a person's statements from one language to another, an interpreter is not asserting anything. Rather, an interpreter is merely converting a speaker's statements to another language and conveying the converted statements to another person. The state concludes that, because Perez's statements were not assertions, they were not hearsay.

The premise of the state's argument -- that, in converting the victim's statements from Spanish to English and repeating them to the detective, Perez was not making an independent assertion -- is difficult to square with both the detective's testimony and established case law. When the detective told the jury that the victim said that defendant had assaulted her, he based his testimony on two separate statements: (1) the victim's statement to Perez that defendant had assaulted her and (2) Perez's statement to the detective that the victim had said that defendant had assaulted her. Each statement asserts a related but separate proposition. The first statement asserts what defendant did. The second statement asserts that the victim said that he did it. The second statement in this case asserts no more and no less than the second statement asserted in the "fairly common" example of double hearsay from Mueller and Kirkpatrick that we quoted above. See Mueller and Kirkpatrick, 5 Federal Evidence § 8:136 at 244 (describing a "fairly common" example of double hearsay).

In many cases, a second person may seek only to repeat what another person said and thus may intend to serve only as a conduit, but it does not follow that the second person's repetition of the first person's statement does not add another layer of hearsay. In Hickey v. Settlemier, 318 Or 196, 199, 864 P2d 372 (1993), for instance, a reporter for a television news program repeated the defendant's words during a broadcast. The plaintiff sought to introduce a videotape of the broadcast at trial, and this court held that the reporter's out-of-court statement repeating the defendant's words was inadmissible hearsay. Id. at 204-06. That was true even though the reporter was merely repeating what the defendant had said, much as Perez did in this case. (6)

The state argues alternatively that Perez's statements were not hearsay because Perez was the victim's agent. That argument rests on the premise that, when Perez was translating the victim's statements, he was acting as her agent. The state then reasons that, because Perez was the victim's agent, Perez's statements are admissible as if they were the victim's statements.
Even if we assume that Perez was acting as the victim's agent, the Oregon Evidence Code recognizes a more limited agency exception to the rule against hearsay than the state advocates. OEC 801(4) excepts from the definition of hearsay certain out-of-court statements that otherwise would come within that definition. Specifically, OEC 801(4)(b)(A) provides that a party's out-of-court statement is not hearsay if it is offered against the party. As a corollary to that rule, the evidence code provides that "[a] statement by the party's agent * * * concerning a matter within the scope of the agency * * * [and] made during the existence of the relationship" is also not hearsay when it is offered against the party. OEC 801(4)(b)(D). The rules of evidence recognize an "agency exception" only for statements that a party's agent makes and then only when the statement is introduced against the party. The victim is not a party in this case, and her statements were not introduced against her. We may not expand the specific exception for statements that a party's agent makes to include statements that anyone's agent makes. See US West Communications v. City of Eugene, 336 Or 181, 188, 81 P3d 702 (2003) (explaining that courts may not rewrite statutes to insert what the legislature has omitted).
The victim's statements that defendant had abused her would have been admissible under OEC 803(18a)(b) if she had made them to the detective and he had been able to testify to them without Perez's intervention. That did not happen, however. Instead, the victim told Perez what happened, and Perez told the detective. Perez's statements to the detective added another layer of hearsay but not the kind of hearsay that is admissible under OEC 803(18a)(b). Accordingly, the detective's testimony was admissible only if Perez's out-of-court statements came within some other exception to the rule against hearsay.
On that issue, the state relies on only one hearsay exception. It argues that the Court of Appeals correctly held that the statements were admissible under the residual exception in OEC 803(28), which provides:
"The following are not excluded by [the rule against hearsay], even though the declarant is available as a witness:
"* * * * *
"(28)(a) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that:
"(A) The statement is relevant;
"(B) The statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts; and
"(C) The general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence.
"(b) A statement may not be admitted under this subsection unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that such statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it."
OEC 803(28) directs trial courts to determine in the first instance whether (1) the statement has equivalent circumstantial guarantees of trustworthiness as other hearsay exceptions; (2) the statement is relevant; (3) the statement is more probative than any other evidence that is reasonably available; and (4) the general purposes of the evidence code and the interests of justice would be served. Although relevance presents a legal issue, the determination whether other evidence is reasonably available and whether the statement contains circumstantial guarantees of trustworthiness may require factual inquiries, as discussed below. And the determination whether admitting the evidence in a particular case would best serve the ends of justice is the sort of discretionary decision that customarily has been entrusted to trial courts in the first instance.
Given those considerations, other courts that have considered this issue have held that the question whether evidence should be admitted under the residual exception ordinarily may not be raised for the first time on appeal. As Mueller and Kirkpatrick explain,
"Because of the notice requirement, and because it is peculiarly important in the case of the [residual] exceptions that the judge consider the evidence and apply the exception in the first instance, resort to this provision for the first time on appeal as the basis for challenging or supporting rulings below is inappropriate."
5 Federal Evidence § 8:140 at 272 (summarizing federal decisions interpreting the federal counterpart to OEC 803(28)) (footnote omitted).
We think that admonition applies equally in this case. The state never argued before the trial court that Perez's repetition of the victim's statements was admissible under OEC 803(28); as a result, defendant did not have an opportunity to offer evidence on the various criteria that OEC 803(28) directs trial courts to determine, and the trial court never considered whether the state's evidence satisfied those criteria for admission. Not surprisingly, when the Court of Appeals considered, for the first time on appeal, whether the translated statements were admissible under OEC 803(28), the lead and the dissenting opinions differed over the first criterion -- whether those statements had sufficient "guarantees of trustworthiness." See OEC 803(28) (stating that criterion).
The lead opinion concluded that the statements were trustworthy based on evidence that it gleaned from various parts of the trial record. It noted that Perez explained that he spoke Spanish "quite well," that Perez works as a bilingual middle- school tutor, and that the victim's trial testimony was consistent with the detective's recitation of her out-of-court, translated statements. 210 Or App at 494. The dissenting opinions reasoned that the ability to speak a second language is quite different from the ability to serve as an interpreter, that there was no evidence that Perez was a qualified interpreter, nor was there any evidence that he had employed one of two accepted methods of interpretation. Id. at 528-30 (Brewer, C. J., dissenting). Rather, as the dissenting opinions reasoned, "[i]t is possible that [Perez] summarized or paraphrased the victim's statements instead. When asked whether he had accurately translated the conversation, Perez responded only, 'I think so. I think it's -- yeah, as far as I -- as far as I know.'" Id. at 530.

We need not decide whether the lead or the dissenting opinions have the better of the argument in order to resolve this case. Because the state did not argue before the trial court that it was relying on OEC 803(28) as the basis for admitting the detective's statements, neither defendant nor the state presented any evidence on the criteria set out in that rule. Moreover, the trial court did not have an opportunity to rule on the criteria that OEC 803(28) directs it to consider. It follows that we are not in a position to rule as a matter of law that the detective's statements were admissible under OEC 803(28). (7) See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001) (appellate courts may not rely on an alternate ground for upholding a trial court's ruling when the record either is not adequate or would have been developed differently if the alternate ground had been raised at trial). Accordingly, we hold that, in this procedural posture, the state may not rely on the residual exception to uphold the trial court's ruling.
The remaining question is whether erroneously admitting the detective's testimony was harmless -- i.e., whether there was "little likelihood that the particular error affected the verdict." State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (stating standard). As the court explained in Davis, the correct focus of that inquiry "is on the possible influence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and compelling." Id. In determining the possible influence of the error on the verdict, the court has considered the nature of the erroneously admitted evidence in the context of other evidence on the same issue. See State v. Gibson, 338 Or 560, 576-77, 113 P3d 423 (2005) (pursuing that inquiry). It has asked whether the jury would have regarded the evidence as duplicative, cumulative, or unhelpful in its deliberations. Davis, 336 Or at 33-34.

The state identifies four bases for saying that the detective's testimony was merely duplicative or cumulative of other evidence in the record. First, it notes that the victim reported the abuse to a friend, her family, and her teachers. She told those people that defendant had touched her inappropriately. (8) Her reports were no more specific than that, however. She did not say where, when, or how often defendant had touched her. By contrast, the victim gave the detective a detailed narrative of three incidents of sexual abuse, which we have set out above. Those statements went far beyond her nonspecific reports of abuse to her friend, family, and teachers.
Second, the state notes that the victim testified to all three incidents at trial. The victim's trial testimony, however, is not as complete as her out-of-court statements to the detective. For example, regarding the third incident (which allegedly occurred the night that defendant's wife was away and defendant came home from work early), the victim responded "yes" when the prosecutor asked if "anything happen[ed] that night." When asked what happened, the victim said, "Well, I don't know, and I can't lie because I don't know what happened." The prosecutor reminded the victim that she had just said that something had happened and asked her why she had said that. The victim responded, "He touched me -- because he touched me, but I don't know where."
The trial court took a break. When the trial resumed, the victim returned to the stand and responded briefly to a series of specific questions. She said that defendant sat next to her and touched her. When asked where he touched her, she did not answer. The prosecutor then handed her a diagram of a young girl. The victim indicated on the diagram that defendant had touched her vagina and, when asked, said that he had touched her on top of her clothes. The victim's trial testimony can only be described as sparse and halting in comparison to her statements to the detective. We cannot say that, in light of her testimony at trial, her statements to the detective were merely duplicative or cumulative. (9)
Third, the state notes that a social worker who interviewed the victim told the jury what the victim said to her during their conversation. As the state candidly acknowledges, however, the victim's statements during that interview "were rather confused." Her statements go back and forth between the second and third incidents without distinguishing between them. She does not appear to refer to any touching during the first incident, although she acknowledged in response to leading questions from the social worker that defendant had exposed himself to her, presumably during the first incident. Again, we cannot say that the victim's statements to the detective were merely cumulative. Rather, the victim's statements to the detective provided the most complete, detailed narrative of the three incidents that the jury heard.
Finally, the state called an officer who speaks Spanish, who had interviewed defendant without the aid of an interpreter, and who had videotaped the interview. When the officer started to translate the videotape for the jury, the trial court stopped him from doing so because, as the trial court explained outside the presence of the jury, the officer's Spanish was "very poor." (10) The officer explained that he had difficulty with simultaneous translation. The state accordingly selected a few specific statements and asked the officer to translate those statements. Essentially, the officer testified that defendant denied, then admitted, and then denied that, on one occasion, he had put his hand inside the victim's pants and touched either the top of her pubic hair or the outside of her vagina.
Defendant also testified. He said that he had not touched the victim's breasts or vagina. He testified, however, that one night, when his wife, the victim's father, and her older brother were home, he was watching television. He said that the victim came in, lay down beside him, took his hand and put it on her stomach. Then, she pushed his hand down her pants. He explained that his hand may have touched the top of her pubic hair but that he had not touched her vagina. Defendant testified that he tried to explain what had happened to the officer, but the officer did not speak Spanish "very well; 50, 60 percent." Defendant testified that their difficulty communicating occurred either because of the officer's limited Spanish or because the officer was trying to get him to say that he had touched the victim's vagina. Additionally, defendant called an expert, who testified that the officer's Spanish was "poor."
Although the issue is closer, we cannot say that any error in admitting the detective's testimony was harmless in light of defendant's admission to the officer. The state introduced evidence that permitted the jury to find that defendant had touched the victim's vagina on two separate occasions -- once when his wife was home and once when she was away for the night. Because the jury convicted defendant of touching the victim's vagina on one occasion and acquitted him of touching it on the other (and the instructions and jury verdict forms provide no basis for determining which incident gave rise to the conviction), there is some question whether the jury relied on the admission that the officer recounted in finding defendant guilty. But, even if we assume that the jury found the officer's testimony more credible than defendant's and convicted him on that basis, we cannot say that erroneously admitting the detective's statements had little likelihood of affecting the jury's verdict; that is, we cannot say that the erroneous introduction of the victim's detailed narrative did not affect the jury's decision to disbelieve defendant's trial testimony regarding his admission and to credit the officer's version of defendant's admission. Because the error was not harmless, the Court of Appeals decision and the trial court's judgment must be reversed, and the case remanded for further proceedings.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

Four judges reasoned that Perez's statements were admissible under OEC 803(28), the residual exception to the hearsay rule. Rodriguez-Castillo, 210 Or at 496 (lead opinion). One judge agreed with the lead opinion's reasoning on that issue but did not join its opinion because he would have analyzed a separate issue differently. Id. at 513 (Edmonds, J., concurring). Three judges disagreed with the lead opinion's reasoning on the evidentiary issue but did not reach the question whether any error was harmless because those judges would have reversed on a different issue. Id. at 528 and n 11 (Brewer, C. J., dissenting). One judge disagreed with the lead opinion's reasoning on the evidentiary issue and would have held that the erroneously admitted evidence was not harmless. Id. at 530-31 (Wollheim, J., dissenting).

Because Perez could not remember what the victim had said, he was unable to testify regarding her statements to him.

The state appears to rely on the fact that Perez was translating the victim's statement to argue that Perez's out-of-court statement is not hearsay. As we understand the state's argument, it contends that Perez's role as an interpreter made his out-of-court statements trustworthy. The fact, however, that an out-of-court statement may be trustworthy does not mean that it is not hearsay. Rather, the premise of most hearsay exceptions is that a category of statements, although hearsay, is sufficiently trustworthy to be admissible without the ability to cross-examine the declarant.

There are other issues regarding whether the state may rely on the residual exception. One issue is whether, because the victim was available to testify, the detective's recitation of the victim's out-of-court statements were "more probative on the point for which [they were] offered [i.e., to prove that defendant sexually assaulted the victim] than any other evidence that the proponent can procure through reasonable efforts." See OEC 803(28)(a)(B) (stating that requirement); Laird C. Kirkpatrick, Oregon Evidence § 803.28[3][c] at 813 (2007) (explaining that, "[a]rguably, this rule also contains an unavailability requirement as a practical matter, because a showing must be made that the hearsay statement is more probative on the point for [which] it is offered than any other evidence which the proponent can procure through reasonable efforts").

8. Initially, the victim told her friend and family that defendant had raped her. However, when her family explained what rape means, the victim corrected her report and said only that defendant had touched her inappropriately.

9. As noted above, defendant objected to the detective's testimony regarding his second interview with the victim. He did not object to the detective's testimony regarding his first interview with the victim. That interview was more sparse and halting than the victim's trial testimony. Accordingly, it does not provide a basis for saying that the ruling admitting the testimony to which defendant did object was harmless.

10. The trial court explained that, based on what the court-certified interpreters were telling it, the officer was paraphrasing what defendant had said and his translation was "off. It's not a good translation." The court previously had ruled that the state could not have the court interpreters translate the videotape for the jury, and the state was unable to get a court-certified interpreter to translate the videotape. Accordingly, it relied on the officer to translate.

GUANTANMO: Appellate court rules that Tribunal Erred re Enemy Combatant Status

2008-06-30T16:39:00.000-07:00

The D.C. Court of Appeals in Parhat v Gates ruled today in favor of a Guantanamo Detainee.

GARLAND, Circuit Judge: A Combatant Status Review Tribunal has decided that petitioner Huzaifa Parhat, a detainee at the United States Naval Base at Guantanamo Bay, Cuba, is an “enemy combatant.” This is the first case in which this court has considered the merits of a petition to review such a decision under the Detainee Treatment Act of 2005. The Act grants this court jurisdiction to “determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” We conclude that the Tribunal’s decision in Parhat’s case was not valid.

First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions. To the contrary, as noted in Part III, many of those assertions are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source. And as we have also noted, Parhat has made a credible argument that -- at least for some of the assertions -- the common source is the Chinese government, which may be less than objective with respect to the Uighurs. Other assertions in the documents may ultimately rely on interview reports (not provided to the Tribunal) of Uighur detainees, who may have had no first-hand knowledge and whose speculations may have been transformed into certainties in the course of being repeated by report writers.

For a discussion of the facts and the Court's opinion, see the New York Times July 1, 2008.