US Attorney's Office Made Thousands Of Improper Prosecutions To Achieve 'Zero Tolerance'

Speaker 1: 00:00 Last year, the u s attorney's office began criminally charging thousands of people crossing the border illegally. In July, a federal court found that over 4,000 of those convictions were improper and should be tossed out in court. KPBS reporter Max Rivlin Nadler looks at the, into the decisions that led up to this disastrous outcome for the US attorney's office in the southern district of California. Speaker 2: 00:25 It was may of last year when then u s Attorney General Jeff sessions came to the border wall here in Santa CGO to announce the Department of Justice's new zero tolerance policy. Speaker 3: 00:35 If you crossed the border unlawfully, then we will prosecute you. Is that simple? Speaker 2: 00:42 Previously, the US Attorney's office had not made much of a priority of prosecuting misdemeanor illegal entry by the time of session's announcement. However, prosecutions for illegal entry had already begun decline in the district, overwhelming the courts in nearby federal jails with people who had previously been quickly turned over to the custody of immigration and customs enforcement. It was then that the chief judge in the district finally allowed for the creation of operations, streamline a fast track prosecution program that aims to arraign convict and sentenced border crossers in a matter of minutes. So starting last July, some people caught illegally crossing the border. We're brought to a converted garage beneath the federal building to meet with their attorneys before being brought to a courtroom to plead guilty and mass to misdemeanor illegal entry. At first, prosecutors were charging upwards of 50 people a day, but last month, the ninth circuit ruled that almost all of the prosecutions during the first year of the program were in proper prosecutors. The court found had charged individuals under the wrong statute. Chuck Labella is a former US attorney in the district who's now in private practice. Speaker 3: 01:51 I sympathize with the prosecutors. I sympathize with what their, oh, they're up against and what they're bringing is to do, but you've got to, you got gotta fly, right, that you know, just because we want to shove these people through the system, but we don't, we don't cut corners in the criminal justice system. You just don't do that. Speaker 2: 02:06 The mistake that prosecutors had made according to the ninth circuit was that they charged misdemeanor illegal entry under a subsection meant to only apply to people who allude inspection at ports of entry, not between them. The vast majority of people caught crossing the border do so by hopping over a border fence or crossing through the desert. TheU s attorney's Office did not respond to repeated requests for comment for this story. A source close to the office, however, tells KPBS that the decision to charge under the wrong law was made by prosecutors concerned about defendants arguing that because they were being watched by border patrol agents when they crossed the border, they didn't actually allude inspection. Proving that a border crosser wasn't being watched generally requires border patrol agents and other officials to testify using the other section of the law. They wouldn't have to prove that Ruben Camper Khan was the executive of the federal defenders of San Diego until shortly after operation streamline was installed in the district last summer. He believes this charging decision is one of the many ways prosecutors have tried to deprive immigrants of their right. To a fair shot at justice. Speaker 4: 03:14 You know, if there's anything that would be more exemplary of a denial of due process and denying somebody the substantive defense that the law allows you, I can't think of it. Speaker 2: 03:25 Over the past year, more than 4,000 people were charged in properly. According to the ninth circuit's decision for over 400 immigrants convicted under the wrong subsection, who are now appealing their cases, the charges can most likely be quickly dropped after a request by their lawyer for the thousands who have not appealed their cases. The Path ahead is much more complicated because they've already been deported today. Operation Streamline has slowed down considerably and operates it nowhere near the prosecution rates once envisioned by former attorney general Jeff sessions. But the impact of these decisions by both officials in Washington and prosecutors in San Diego will leave a mark on the u s attorney's office says former office chief labella. Speaker 3: 04:05 It's a blemish on law enforcement when a court of appeals reverses saying you're using the wrong statute and you're using the wrong statute because it's easier rather than it's the right statute. Um, yeah, it's an embarrassment for law enforcement. Speaker 2: 04:18 TheU s attorney's office has until September 6th to appeal the ninth circuit's decision. Max Riverland Adler KPBS news. Speaker 5: 04:29 Uh.