Sanctuary doesn’t extend to courts
San Francisco’s public officials constantly say the city must remain a sanctuary for immigrants living in the country without documentation so they’ll come forward if they’re a victim of or witness to a crime.
But some who have come forward have found the city’s courtrooms anything but a safe harbor.
Maria, a housekeeper from Honduras living in San Francisco without documentation, called police in May 2015 to report that she had been sexually assaulted. During the investigation and trial of the suspect, she said, Public Defender Jeff Adachi’s office used tactics so aggressive toward her they made her trauma even worse.
A public defender’s investigator interviewed her landlord, who then told Maria she had to move, she said. Adachi’s office included her full name, date of birth and immigration status in public court records. And in court, an attorney from Adachi’s office insinuated she was testifying only to try to obtain a type of visa available to crime victims.
“I felt like he was trying to intimidate me,” Maria, 37, said in Spanish through an interpreter of the cross-examination. (The Chronicle isn’t using her full name because she fears being singled out by federal immigration agents.)
Adachi is a vocal advocate for the rights of unauthorized immigrants in most circumstances and a firm supporter of San Francisco’s sanctuary city laws. But the question posed by cases like Maria’s is whether his staff is hypocritical in using tough tactics in court — even if entirely legal — against crime victims living here illegally.
Anyone who’s watched “Law & Order”
“It goes against the grain of what we’re trying to do as a city and a county.” District Attorney George Gascón, on public defender’s questioning of unauthorized immigrant who report crimes
knows criminal defense attorneys can get rough — it’s part of their job. And those accusing someone of a crime and testifying in court should expect to be challenged.
But District Attorney George Gascón says Adachi’s office is “aggressive to a fault” when it comes to cross-examining immigrants living here without permission who report crimes. Gascón said the strategy is especially problematic under President Trump, whose pledge to deport millions of immigrants has many retreating into the shadows.
“Certainly it goes against the grain of what we’re trying to do as a city and a county,” Gascón said. “We tell people that their immigration status is not going to be reported, and we encourage people to go to the police and cooperate with authorities on the one hand, and on the other hand they’re in the middle of a courthouse testifying and all of a sudden their immigration status becomes the issue.”
Adachi dismissed the complaints as “ridiculous.”
“The law pretty clearly says that’s part of our duty, to ask the question,” Adachi said. “Part of what we do is investigate the motivations for a witness to make a claim . ... The idea that we’re somehow acting improperly in questioning witnesses about this is meritless.”
Asked whether it’s hypocritical to be the champion of unauthorized immigrants at City Hall — he recently obtained more money to hire immigration attorneys — while using tough tactics against them in court, Adachi said, “In one word, ‘no.’ ”
“That’s doing our jobs as defense attorneys,” he said. “It has nothing to do with my support of immigrant rights.”
Court records from several cases tried in San Francisco over the past few years show Adachi’s attorneys regularly quizzed immigrants living here illegally about a special visa available to crime victims, apparently to cast doubt on their credibility. The attorneys have pressed their questioning about the visas, regardless of whether the alleged victim had applied for the visa and even if the victim testified he or she didn’t know about the visa when reporting the crime.
The U visa program was created by Congress in 2000 to encourage immigrants living in the country illegally to report crimes. Victims of more than 20 different serious crimes can apply for the visa if a law enforcement official certifies they have been helpful in the prosecution of the crime.
Under California rules, law enforcement officials must provide the certification if the immigrant asks for it and qualifies. The visa allows the holder to live and work in the country legally for three years and potentially obtain permanent residency. The visas are capped at 10,000 per year, and there is a backlog nationally of more than 60,000 petitions for them. The San Francisco district attorney’s office certified 225 U visa applications in 2016 and 264 the year before. It does not track the results of those applications.
Adachi’s office regularly calls immigration experts to the stand to testify about the vast array of benefits, including forgiving the illegal crossing of the U.S. border and potential residency for family members, the U visa provides. His investigators interview the victims and their acquaintances about the victim’s immigration status and whether they know about the U visa. As in Maria’s case, his office sometimes enters the victim’s full name, immigration status and other identifying details in public court records.
In a case against Jeffrey Bugai, who in 2015 was sentenced to 65 years to life for posing as a police officer to sexually assault recent Central American immigrants, the public defender’s office asked a victim about his U visa knowledge. When the victim said he only learned of the U visa on television long after reporting the crime, the defense attorney asked him what channel, what program, what time and whether it was in the morning or night.
In an ongoing case against a man accused of multiple accounts of sexual assault against an underage girl living here illegally, the public defender’s office has subpoenaed the district attorney for any records related to U visa applications, including any conversations between victim’s advocates and the girl.
And in a case this year that ended in a hung jury, a man was accused of misdemeanor battery against a woman who entered the country illegally. The district attorney persuaded the judge to disallow a reference to her immigration status and the U visa program, which she hadn’t applied for, because it “can only be used, intentionally or unintentionally, to intimidate and dissuade her and to jeopardize her safety,” according to court records.
Adachi’s tactics are unquestionably legal, and there have been no complaints made about them to the California Bar Association. Ernie Lewis, executive director of the National Association of Public Defenders, said “a bedrock and fundamental” part of a public defender’s job is to investigate witnesses’ biases and motives to fabricate a story. “To do less would be to provide ineffective assistance of counsel,” he said.
Gascón said he has talked to district attorneys in other California counties and that Adachi’s tactics “appear to be unique to San Francisco.” Spokespeople for the district attorneys’ offices in Alameda County and Santa Clara County said prosecutors can’t remember a case in which public defenders in those counties used such tactics.
Santa Clara County District Attorney Jeff Rosen said in a statement: “These are members of our community who help us solve crimes and take dangerous people out of all of our neighborhoods. The trust that we must maintain with our immigrant communities is a matter of life or death.”
Michele Hanisee, a deputy district attorney in Los Angeles and president of the Association of Deputy District Attorneys, had not heard of the tactics and said she had not seen them in L.A. She called their use “pretty sleazy.”
Jackie Ortiz, deputy chief of victim services for the San Francisco district attorney’s office, said her staffers are regularly subpoenaed by Adachi to appear in court and report when a victim may have been informed of the U visa program. She said it’s “really hard to stomach” the notion that crime victims fabricate getting abused by their partners, sexually assaulted, stabbed or raped to get visas.
Adachi’s office pointed to one case from 2012 in which a woman accused her boyfriend, a construction worker here illegally, with no criminal history, of domestic violence. He was charged with felony assault with a deadly weapon and other lesser charges. The jury acquitted him of all charges after deliberating for just two hours, and Adachi’s office believes the woman made up the story to obtain a U visa.
Peter Santina, an attorney in Adachi’s office, said that under the U.S. immigration system, the U visa is sometimes the only way an immigrant without documentation can obtain legal status.
“I’m sure 9 times out of 10, it’s used in a completely proper way,” he said. “But like anything, there is always the possibility of someone exaggerating and embellishing in order to get a tremendously important benefit. It’s our job to ask about any potential benefit.”
Santina was the public defender who cross-examined Maria, the housekeeper who reported being sexually assaulted in 2015. Court records show she notified the police after waking in the middle of the night to find a naked man on top of her, covering her mouth with one hand and cupping her breast with the other.
She was able to turn on the bedside light and make noise. The man fled. Maria moved out, but then her new landlord told her an investigator from the Public Defender’s Office was asking about her.
“My landlord said, ‘I think you’re involved in problems — you need to get another room,’ ” Maria said. She moved again.
Maria was paired with a victim advocate at the district attorney’s office, which reported in court documents it provided her with counseling, relocation expenses and information about the U visa program.
In the 2016 trial, Santina quizzed Maria at length about U visas, whether she watched Spanish-language television — which often features ads about U visas — as well as about crossing the border into the U.S. illegally in 2014 and about why she didn’t want to return to Honduras.
She testified that she only learned about U visas when told about them by the district attorney’s victim advocate after reporting the crime. Santina countered, “But the truth is that you already knew what it was.” He then asked her about watching Spanish-language television and stated, “You have seen references on Spanish-language television to the fact that victims of crime can get a visa.”
Maria responded, “Well, I don’t have an understanding, and I’m not sure about anything.” A reading of the transcript shows Maria cried and repeatedly said she didn’t understand what was going on.
Santina is adamant he did nothing improper in his questioning — and that avoiding asking Maria the tough questions would be “illegal and immoral.” He said Maria changed her story several times on the stand, and it was problematic that the district attorney’s victim advocate had told her she could qualify for a U visa after sentencing.
“The jury had a good chance to observe her demeanor, and the jury’s verdict showed they found her to be not credible on the important issues of the case,” Santina said.
The jury found the defendant guilty of misdemeanor assault against Maria, but not guilty of the more serious sex charges. She did apply for a U visa after the trial, but doesn’t yet know if she will receive one.