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| Washington state courts may shield immigrants' status amid Trump fears | |
| (about 5 hours later) | |
| The assault took place in March. Ariella and her family were new arrivals to the US, but her husband didn’t know her real reasons for coming: her secret conversion to a religious group that was brutalized in their home country. Ariella had already filed for asylum. | The assault took place in March. Ariella and her family were new arrivals to the US, but her husband didn’t know her real reasons for coming: her secret conversion to a religious group that was brutalized in their home country. Ariella had already filed for asylum. |
| When her husband found out, he screamed that he would kill her and began to rain blows down on her. | When her husband found out, he screamed that he would kill her and began to rain blows down on her. |
| Police in Seattle charged her husband with felony harassment and two counts of domestic assault. And that’s when Ariella was confronted with an impossible choice: safety from her husband, or safety from the risks of revealing the particulars of her immigration status in open court. | Police in Seattle charged her husband with felony harassment and two counts of domestic assault. And that’s when Ariella was confronted with an impossible choice: safety from her husband, or safety from the risks of revealing the particulars of her immigration status in open court. |
| Ariella is far from alone in facing such a choice. But that could soon change in the state of Washington, where a groundbreaking effort is under way to limit what juries hear about a witness’s immigration status. Prosecutors and immigration rights activists say the information can bias jurors and discourage immigrants, especially the undocumented, from using the legal system. | Ariella is far from alone in facing such a choice. But that could soon change in the state of Washington, where a groundbreaking effort is under way to limit what juries hear about a witness’s immigration status. Prosecutors and immigration rights activists say the information can bias jurors and discourage immigrants, especially the undocumented, from using the legal system. |
| In June, the state supreme court agreed to consider a unique proposal: a new rule making immigration status inadmissible in court “unless status is an essential fact to prove an element of a criminal offense or to defend against the alleged offense or to show bias or prejudice of a witness”. | In June, the state supreme court agreed to consider a unique proposal: a new rule making immigration status inadmissible in court “unless status is an essential fact to prove an element of a criminal offense or to defend against the alleged offense or to show bias or prejudice of a witness”. |
| The rule, first proposed several years ago, would make Washington the first state in the country to place special limits on the mention of immigration status in criminal cases, and only the second state, after California, to impose similar limits in civil court. After hearing public arguments, the court could adopt, modify or reject the rule as early as September. | The rule, first proposed several years ago, would make Washington the first state in the country to place special limits on the mention of immigration status in criminal cases, and only the second state, after California, to impose similar limits in civil court. After hearing public arguments, the court could adopt, modify or reject the rule as early as September. |
| But the proposal has received fierce pushback from Washington’s criminal defense attorneys and divided immigrants rights’ groups. Public defenders say they are overburdened enough, and they fear the rule will allow prosecutors to engage in courtroom “gamesmanship”. | But the proposal has received fierce pushback from Washington’s criminal defense attorneys and divided immigrants rights’ groups. Public defenders say they are overburdened enough, and they fear the rule will allow prosecutors to engage in courtroom “gamesmanship”. |
| Proponents of the change say it can’t come soon enough. With the Trump administration urging mass deportations of unauthorized immigrants, law enforcement officers nationwide are facing historic struggles to convince vulnerable victims – particularly immigrants who are survivors of domestic violence or sexual assault – to turn to the legal system. | Proponents of the change say it can’t come soon enough. With the Trump administration urging mass deportations of unauthorized immigrants, law enforcement officers nationwide are facing historic struggles to convince vulnerable victims – particularly immigrants who are survivors of domestic violence or sexual assault – to turn to the legal system. |
| “The fear and mistrust have increased,” said Andy Miller, a prosecutor from eastern Washington and one of the proposal’s biggest proponents. “We don’t want people to be afraid to call the police and report crimes, but they are.” | “The fear and mistrust have increased,” said Andy Miller, a prosecutor from eastern Washington and one of the proposal’s biggest proponents. “We don’t want people to be afraid to call the police and report crimes, but they are.” |
| Ariella’s asylum attorney believes the rule could have changed her life. After her husband was charged, his attorney fought to introduce her asylum application in open court. He believed it would contain accusations of violence against her husband and show she made the assault up to support her asylum claim. | Ariella’s asylum attorney believes the rule could have changed her life. After her husband was charged, his attorney fought to introduce her asylum application in open court. He believed it would contain accusations of violence against her husband and show she made the assault up to support her asylum claim. |
| In reality, said her attorney, all it contained were the names of friends back home who had witnessed her conversion – a potential kill list in the wrong hands. | In reality, said her attorney, all it contained were the names of friends back home who had witnessed her conversion – a potential kill list in the wrong hands. |
| Ariella, whose name has been changed, begged Seattle’s domestic violence prosecutor to drop her case, and he did. | Ariella, whose name has been changed, begged Seattle’s domestic violence prosecutor to drop her case, and he did. |
| “We want people to get help,” said David Martin, the prosecutor and one of the rule’s backers. “It’s an issue of access to justice.” | “We want people to get help,” said David Martin, the prosecutor and one of the rule’s backers. “It’s an issue of access to justice.” |
| Criminal defense attorneys, however, see the proposal as little more than a way to unfairly disadvantage their clients. | Criminal defense attorneys, however, see the proposal as little more than a way to unfairly disadvantage their clients. |
| “Let’s say my client has an alibi, and his alibi is, ‘I was in Ice [Immigration and Customs Enforcement] detention,’” said Kevin March, a criminal defense attorney and a member of the Washington Defenders Association. The current text of the rule could place procedural hurdles in the way of using that alibi in court. “That might be rare, but I don’t think the rule contemplates situations like that.” | “Let’s say my client has an alibi, and his alibi is, ‘I was in Ice [Immigration and Customs Enforcement] detention,’” said Kevin March, a criminal defense attorney and a member of the Washington Defenders Association. The current text of the rule could place procedural hurdles in the way of using that alibi in court. “That might be rare, but I don’t think the rule contemplates situations like that.” |
| Judges already have the power to bar evidence that could unduly prejudice a jury, March added. “I worry that prosecutors will be using this rule as a barrier to admitting otherwise relevant and important evidence.” | Judges already have the power to bar evidence that could unduly prejudice a jury, March added. “I worry that prosecutors will be using this rule as a barrier to admitting otherwise relevant and important evidence.” |
| The proposal has proved divisive among immigrants’ rights groups too, some of which agree it stacks the deck against criminal defendants. Because a criminal conviction can lead to deportation, these critics say, the measure could wind up hurting immigrant communities. | The proposal has proved divisive among immigrants’ rights groups too, some of which agree it stacks the deck against criminal defendants. Because a criminal conviction can lead to deportation, these critics say, the measure could wind up hurting immigrant communities. |
| “You’re tying the hands of justice, and the stakes are simply too high,” said Francis Adewale, a public defender in Spokane. “People need to listen to the voice of the community: ‘You can’t protect us better than we can protect ourselves.’” | “You’re tying the hands of justice, and the stakes are simply too high,” said Francis Adewale, a public defender in Spokane. “People need to listen to the voice of the community: ‘You can’t protect us better than we can protect ourselves.’” |
| The proposal’s supporters say there should be exceptions. When a witness for the state receives a U-visa, for example – which grants legal status to crime victims so they can assist the prosecution – defense attorneys should be able to show that the witness benefits from their testimony. | The proposal’s supporters say there should be exceptions. When a witness for the state receives a U-visa, for example – which grants legal status to crime victims so they can assist the prosecution – defense attorneys should be able to show that the witness benefits from their testimony. |
| But they deny the proposal is unnecessary, likening it to rape shield laws preventing defense attorneys from using a rape accuser’s sexual history to discredit her. | But they deny the proposal is unnecessary, likening it to rape shield laws preventing defense attorneys from using a rape accuser’s sexual history to discredit her. |
| “There are certain types of evidence that have particular potential to be abused,” Jorge Baron, the executive director of the Northwest Immigrant Rights Project, said recently. “And we’ve found that immigration status falls into that category.” | “There are certain types of evidence that have particular potential to be abused,” Jorge Baron, the executive director of the Northwest Immigrant Rights Project, said recently. “And we’ve found that immigration status falls into that category.” |
| Prosecutors say the current rules have emboldened some defense attorneys to act first and ask forgiveness later. | Prosecutors say the current rules have emboldened some defense attorneys to act first and ask forgiveness later. |
| As an example, Miller pointed to a domestic violence homicide case in which the defense, before trial, questioned the immigration status of two witnesses. | As an example, Miller pointed to a domestic violence homicide case in which the defense, before trial, questioned the immigration status of two witnesses. |
| “Are you here illegally?” the attorney asked, according to a transcript. | “Are you here illegally?” the attorney asked, according to a transcript. |
| The judge ruled the witnesses did not have to answer, but one of them was visibly spooked, Miller said. Later, at trial, Miller was “convinced [the witness’] testimony was not as strong as it could have been”. (The defendant was convicted.) | The judge ruled the witnesses did not have to answer, but one of them was visibly spooked, Miller said. Later, at trial, Miller was “convinced [the witness’] testimony was not as strong as it could have been”. (The defendant was convicted.) |
| There is comparatively little conflict over the proposed rule for civil courts. Approached for comment, the state’s largest organization of civil defense attorneys said it had not even discussed the rule. | There is comparatively little conflict over the proposed rule for civil courts. Approached for comment, the state’s largest organization of civil defense attorneys said it had not even discussed the rule. |
| That portion of the proposal says in a civil proceeding, “immigration status … of a party or witness shall not be admissible except where immigration status is an element of a party’s cause of action” or falls under another set of narrow exceptions. | That portion of the proposal says in a civil proceeding, “immigration status … of a party or witness shall not be admissible except where immigration status is an element of a party’s cause of action” or falls under another set of narrow exceptions. |
| Joe Morrison, an attorney for Columbia Legal Services and the civil rule’s strongest advocate, said the proposal is meant mainly to provide relief for those in abusive employment situations. Eastern Washington is home to a large agricultural sector that relies heavily on, and sometimes exploits, immigrant workers. | Joe Morrison, an attorney for Columbia Legal Services and the civil rule’s strongest advocate, said the proposal is meant mainly to provide relief for those in abusive employment situations. Eastern Washington is home to a large agricultural sector that relies heavily on, and sometimes exploits, immigrant workers. |
| “If I could tell people, ‘Look, this isn’t going to come up at all,’ I think you’d have a lot more people asserting their rights,” Morrison said. | “If I could tell people, ‘Look, this isn’t going to come up at all,’ I think you’d have a lot more people asserting their rights,” Morrison said. |
| As he spoke, Morrison was looking over a set of questions for his clients – a group of agricultural workers who say they were poisoned by pesticides – submitted by the defense. The very second question asked for his clients’ names, dates of birth and social security numbers. | As he spoke, Morrison was looking over a set of questions for his clients – a group of agricultural workers who say they were poisoned by pesticides – submitted by the defense. The very second question asked for his clients’ names, dates of birth and social security numbers. |
| “The case has nothing to do with immigration status,” he said. “The purpose is intimidation. It’s to send a message.” | “The case has nothing to do with immigration status,” he said. “The purpose is intimidation. It’s to send a message.” |