Thread: Benton-Franklin judge questions jury pool about immigration in pursuit of justice

Benton-Franklin judge questions jury pool about immigration in pursuit of justice

Kristin M. Kraemer, Tri-City Herald Reprint

Some of the prospective jurors blame immigrants for taking jobs from Americans, bringing drugs, gangs and violent crime into the country, hiding behind a language barrier and overall "bleeding our system."

PASCO, Wash. - "Do you believe that immigrants are causing problems in America?"
For some, the answer may be as simple as "Yes" or "No."

But when asked of 227 prospective jurors on two recent Franklin County murder trials, their responses covered the spectrum on the hot-button national issue.


It's the first time the question has been posed to a Benton-Franklin Superior Court jury pool in the hope that people would be honest with their answers, instead of a seating a biased jury and risking a conviction being overturned.

Judge Robert Swisher, who drafted the questionnaire, said it is proof the system works when potential jurors can be candid on such questions and admit they have a problem and won't be fair.

Some of the prospective jurors blame immigrants for taking jobs from Americans, bringing drugs, gangs and violent crime into the country, hiding behind a language barrier and overall "bleeding our system."

"If they are here illegally, they burden our services and cost us all, and then want full benefits of our country," wrote a 47-year-old man. "They shouldn't be here in the first place and don't deserve the same rights as citizens!"

But others pointed out that America was founded by immigrants from all over the world and "has been made great by our rich and diverse heritage."

"I feel that most are trying to better their lives and the lives of their families. There are going to be some that cause problems, but that goes for American citizens also," said a 27-year-old woman.

The topic was raised on jury questionnaires for the trials of Gregorio Luna Luna and Jose Garcia-Morales. Of the total responses for both cases, 20 percent said it's the illegal or undocumented immigrants that are the problem.

In Luna Luna's case, the jury pool was evenly split, with 49 percent believing immigrants are to blame for a part of society's ills and 50 percent disagreeing.

Garcia-Morales' jury pool felt more strongly about immigrants, with 58 percent agreeing they cause problems and 37 percent not blaming them.

"Look around you. Americans are being taxed to support illegal and even legal immigrants in this country. Where does it end? The opportunity to come to the U.S. is enough. After that, it's up to them to support themselves," wrote a 43-year-old man on Luna Luna's trial. "If the federal, state and local governments would enforce our current immigration laws, this alleged crime may not have even happened."

For years, the bicounty court and Tri-City lawyers have used lengthy questionnaires in high-profile cases to broach sensitive subjects, such as mental health and alcoholism, in an attempt to bring any juror bias or concern to the forefront. The idea is to shorten the jury selection process by quickly eliminating a number of people based on their answers.

As Swisher prepared for Luna Luna's February trial, he remembered an incident that happened during jury selection on an unrelated federal case and decided to put the question of immigration out there.

Swisher explained to the Herald that after reviewing the Supreme Court case, Rosales-Lopez v. United States, he believed it was his responsibility to address racial or ethnic prejudice to ensure the defendant received a fair and impartial trial.

"Because he was a Mexican citizen, I put in that other question. I put the whole thing together," the judge said. "I think the court has an affirmative duty to make inquiries into that area, so I don't think there's any challenges to it."

Prosecutors and defense attorneys on the case did not object.

"I think everybody tries to make sure everybody is unbiased or would tell us they're unbiased, and the more questions we can ask of hot topics, the more chances we have of getting our client a fair trial," said lawyer Shelley Ajax, who represented Luna Luna and Garcia-Morales.

The Herald looked at the completed questionnaires -- 137 in Luna Luna's case and 90 for Garcia-Morales. Both of the men were convicted, and the general questionnaires are public record.

Both cases were in Franklin County, but the Tri-Cities has seen its share of controversy on immigration issues.

Last year, Loren Nichols unsuccessfully ran for the Kennewick City Council on the platform that anyone entering the U.S. illegally should be shot and that all illegal immigrants should be ordered out of the city and the country.

Kennewick Councilman Bob Parks has been vocal about making English the official language of Kennewick and Washington, as well as ending the practice of allowing undocumented immigrants to get Washington driver's licenses.

Washington State Patrol Trooper James E. Saunders was killed in Pasco during an October 1999 traffic stop. The suspect, a Mexican national, was a convicted drug dealer who had been deported from the United States three times before he gunned down Saunders.

And Luna Luna, whose trial led to the new immigrant questionnaire, was sent back to his native Mexico in May 2010 after repeatedly assaulting and threatening his former live-in girlfriend. He was back in Washington within 22 days, and stole a friend's car so he could drive to the Tri-Cities and kill her.

During the trials for Luna Luna and Garcia-Morales, a number of online Herald commenters questioned why Franklin County had to foot the bill, ultimately leaving taxpayers to pay for their lengthy prison terms. Some online commenters and prospective jurors suggested the criminal cases should be handled by the Mexican courts, or the men should just be dropped over the border.

"They should kick them out of the country so we can take care of the people that are legal and really need our help," said a 56-year-old male juror.

For Benton County Prosecutor Andy Miller -- whose office handled the cases because Franklin County Prosecutor Shawn Sant previously defended both men -- it was never a valid option to leave it up to Mexico's way of justice, whether in the courts or on the streets.

It's important to remember that when dealing with pending cases, the focus must be kept on legal issues and not politics, he said.

"I think if a major crime occurs in the United States, it needs to be investigated and prosecuted, and we need to see that justice is done," Miller told the Herald. "The 14th Amendment gives the right to a lawyer and a jury trial, and all those rights extend to people who are here illegally accused of a crime. That is part of our constitution, whether people agree with it or not."

On the jury questionnaires, people also were asked if they could overlook the defendant's status and treat him like any other person in this country's judicial system:

"The 14th Amendment to the U.S. Constitution as well as the State of Washington law require that you give Mr. Garcia-Morales, who is a citizen of Mexico, a fair and impartial trial. Can you fairly and impartially try this case and base any decision you make on the evidence introduced during the trial and disregard the race and nationality of Mr. Garcia-Morales?"

By the numbers, 82 percent did not have a problem with that in Luna Luna's case, and 81 percent said they could be objective if seated on the Garcia-Morales jury.

Yet, some took a hard-line stance on why they shouldn't be selected.

"He doesn't speak the English language, which tells me that he thinks he is above the law and doesn't need to leave," a 33-year-old man said in Luna Luna's case.

One woman said she's sick of illegals, while another didn't trust herself to be fair if the defendant is not a citizen.

"If he has to testify at all and it all is done through a translator, I might hold it against him," a 54-year-old man said on Garcia-Morales' case.

Both defendants required Spanish-speaking court interpreters for all hearings.

Defense attorney Karla Kane said she was on the case with Judge Swisher last year that ultimately triggered the immigration question.

Kane asked the entire jury pool if there was "absolutely anything else, any reason" why they wouldn't be able to give their full attention to the case. That's when a man raised his hand and said he needed to know if that defendant was a U.S. citizen, otherwise he did not know why he should care about the case and couldn't be fair, Kane recalled.

When the lawyer asked if any other people felt that way, several more hands went up. Her client on that case was a citizen, so it wasn't even an issue, she said.

Kane said the immigrant questions are like a double-edged sword -- it's important to get it out there and reveal what people are thinking, but it also may lead potential jurors to think there is an issue when one doesn't exist.

"I want to know all the bad things so I can at least question people. I know that they have that slight prejudice, even if it's not enough to challenge and get them booted off," said Kane, who also represented Luna Luna. She admits being shocked by some of the juror responses.

Well-known Tri-City immigration lawyer Tom Roach gives credit to Swisher for addressing the topic.

"That question on the jury form forces people to focus on their own potential biases and say to themselves, 'You know, I can't be objective about this case,' which is the way the system, the American system of jurisprudence, is designed to operate," he said.

It is irrelevant whether the defendant before them is legal or illegal; Swiss, German, Mexican or Dutch; wearing pink underwear or not, Roach said. What matters is if he committed the crime for which he is accused.

"I think it's a really important step in the right direction, especially in a community like this that we have where lots of people are either legal U.S. citizens or green card holders, or in some cases they're illegal," he told the Herald.

There are 11 million undocumented individuals, or illegal aliens, living in the United States, Roach said, noting that's equivalent to the number of people in Washington and Oregon combined. Most polls show 20 percent of Americans are in favor of immigration reform, 20 percent are against legalizing the immigrants who are here and 60 percent are in the middle, he said.

One of the biggest arguments against immigrants is they're taking up jobs in this depressed economy, yet Roach said they're doing work that Americans refuse to do. Immigrants are cutting the asparagus, picking the apples and wine grapes, and milking the cows, he said.

"Around here, it stupefies me -- we're in the middle of ag country and people don't get it. Seventy percent of the food on your plate, three meals a day, has passed through the hands of illegals," Roach said.

And as for the debate about taxes, he said everyone pays sales taxes. He acknowledged that illegal aliens may not be filing annual returns but said 72 percent of them are paying federal income taxes and into Social Security and Medicare, all of which is deducted from their wages. The only difference, he said, is that their employer doesn't know their true status and is treating them like a legal worker with a paycheck.

A 70-year-old farmer in a jury pool wrote on his questionnaire that immigrants are causing problems "no more than any other segment of the population."

And while several jurors told the court that all people should be following the law, a 29-year-old woman summed up their thoughts: "Immigrants are not the problem. There's good and bad people everywhere."

source: Benton-Franklin judge questions jury pool about immigration in pursuit of justice - Northwest McClatchy - bellinghamherald.com

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