San Francisco Chronicle: How to ensure undocumented have voice in courts

By Heather Knight

The recent column about the tough tactics that Public Defender Jeff Adachi’s office employs against undocumented crime victims and witnesses testifying against his clients got a lot of heated reaction on both sides.

“That’s outrageous!” said some. “It’s outrageous you even wrote about this!” said others.

State Sen. Scott Wiener, the ever-pragmatic legislator who as a city supervisor even managed to make banning public nudity a businesslike affair, has offered a sensible solution.

He has introduced a bill that would require that any attorney — for the prosecution or the defense, in a criminal case or civil — who wants to question a witness about his or her immigration status present the list of questions to the judge in chambers first. The judge would then rule on whether the questions may be asked in court.

Court records show Adachi’s attorneys have quizzed immigrants living in the country without documentation about whether they were testifying against the defendant just to obtain a special visa available to crime victims. They did this regardless of whether the witness applied for the visa and even if the witness said he or she didn’t know about the visa when reporting the crime.

Adachi’s attorneys sometimes put the victim’s full name, immigration status and date of birth in public court records, potentially making them easy targets for federal immigration agents. Adachi defended the practices, saying they’re part of his office’s duty to defend its clients.

Wiener said he only learned of the tactics in The Chronicle. He said he understands why Adachi’s office uses them, but he doesn’t agree with them.

“While I understand why an attorney, in order to win a case, might be tempted to inquire about immigration status, as a matter of public policy it’s a terrible idea,” Wiener said. “The minute people feel unsafe going to court and testifying, our public safety is harmed.”

The idea for the bill came from the office of District Attorney George Gascón, who called Adachi’s tactics “egregious.”

“We need to create safeguards,” he said. “We want to make sure they are forced to alter their tactics.”

Adachi said he wouldn’t oppose Wiener’s bill. He said the judge often makes a ruling in advance about whether a line of questioning is admissible, and this would “simply codify existing practice.”

Wiener’s bill is being co-authored by Assemblywoman Lorena Gonzalez Fletcher, D-San Diego. But even if public defenders don’t oppose the bill, it’s not a sure thing. California voters in 1982 passed a tough-on-crime initiative requiring a two-thirds vote in the Legislature to pass any law that would prevent evidence from being entered in a criminal trial.

Nothing’s ever easy, is it?

Read Heather Knight's column on the San Francisco Chronicle website.