Opinion

Opinion | Nancy Gertner

Newton judge and lawyers were right to be concerned about ICE in the courtroom

Color Advance -- Newton....5/23/2001.....Newton District Court...Judge Dyanne Kline, in the courthouse. LIBRARY TAG 05312001 GLOBE WEST
The Boston Globe
Newton District Court

Jose Medina-Perez, an immigrant, evaded ICE detention after his arraignment in the Newton District Court on drug charges and a Pennsylvania fugitive warrant, according to the Globe. While an Immigration and Customs Enforcement agent was waiting to take him into custody, he slipped out the back door of the courthouse. The details of how that happened are unclear. What is clear is that everyone — the defense lawyer, the prosecutor, and the judge — was concerned about whether Medina-Perez had been identified correctly in the fugitive warrant. The mug shot attached to the warrant didn’t match the defendant in the courtroom.

They were right to be concerned. Government computers can be wrong, even on so simple a question as who is a citizen, or who has an outstanding arrest warrant. It can be like a game of telephone: Bad information goes in and is repeated, coming out looking legitimate because a computer chewed it up. Gang databases are even more problematic, which is why the American Civil Liberties Union of Massachusetts is seeking to get access to Boston’s, an effort recently lambasted by the city’s new police commissioner, William Gross.

And the setting matters: It is one thing to use this kind of information in a criminal case, when the target has a lawyer and a chance to challenge the evidence in a proceeding subject to the highest constitutional protections. It is another thing to use the information for deportation, with few constitutional protections, no lawyer, and today’s extraordinary political pressure to deport first, respect rights later. Errors that may surface in a criminal case are exposed too late in deportation proceedings; the immigrants are long gone.

I would know. On Nov. 23, 2010, I sentenced Maximo Siri, a minor player in a drug conspiracy. The sentence was time served, which meant no further imprisonment beyond what he had already spent behind bars. After I announced my decision and Siri’s release was imminent, the assistant US attorney insisted Siri could not be freed because he had an ICE detainer. With great authority, this federal prosecutor announced that Siri was not a US citizen. Why? Because Siri’s name was not in the computer database. Siri grew more and more agitated as the prosecutor spoke. He was a citizen, he protested, no matter what the computer said.

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What was clear to me was that if Siri left my courtroom, he could well be deported before the issue was resolved. He would be forced to deal with his citizenship claims from abroad, without legal resources, through an unforgiving bureaucracy. I insisted that no one leave the courthouse that day — no defense lawyer, prosecutor, defendant — until we could find out the truth. (I hoped it would all be resolved before Thanksgiving.) The prosecutor agreed to dig further; Siri and his counsel stayed put.

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Hours and hours passed. Finally, in late afternoon, when the workday was nearly over, the prosecutor breathlessly conferred with my courtroom deputy. Siri was an American citizen; in fact, his US passport had been taken from him at the time of his arrest. The computer was flat-out wrong.

If the computer is wrong about citizenship, imagine how wrong it could be about something as subjective as gang membership. Thomas Nolan, a Boston cop for 27 years, put it this way in describing his testimony in Immigration Court regarding the Boston Regional Intelligence Center gang database: You can be “verified” as a gang member because you are in a photograph wearing a certain baseball hat, or your picture was taken with someone else who was a “verified” gang member, or because you accompany a friend who was assaulted by other “known gang members.” Even being a “victim” of a “rival group” can get you verified. Racial and ethnic profiling may also play a role; white gang membership tends to be underestimated and undercounted; the opposite is true for black and Latino youth.

Nor is Boston alone. An audit of the California gang database listed dozens of children as alleged gang members — some younger than 1 year old at the time their name was entered into the database. A Chicago database included 163 people in their 70s or 80s and 12 who were listed as 118 years old. True, these databases may be accurate sometimes, but it is right to be skeptical and seek transparency.

So the judge and defense counsel in the Newton case were justified in being troubled that Medina-Perez might be detained on the basis of flawed information. Errors like this matter in making decisions about whether someone who is detained can get bail, or ultimately gets asylum and is permitted to stay in the country. But even more, errors about who we are detaining and deporting, errors fundamental to fair treatment, can be of great consequence to our democracy — when the utter chaos that is a dysfunctional immigration system spills over into our courthouses.

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Correction: An earlier version of this article reported that the judge and lawyers in this case were concerned about whether Jose Medina-Perez had been identified correctly by ICE. They were in fact concerned about whether Medina-Perez had been correctly identified by the Pennsylvania fugitive warrant.

Nancy Gertner, a retired federal judge,
is a professor at Harvard Law School.