United States v. Valenzuela-Bernal, 458 U.S. 858 (1982)

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.

Today’s holding flaunts a transparent contradiction. On the one hand, the Court recognizes respondent’s constitutional right, under the Compulsory Process Clause of the Sixth Amendment, to the production of all witnesses whose testimony would be relevant and material to his defense. Ante at 867-869. But on the other hand, the Court holds that the Government may deport illegal alien eyewitnesses to respondent’s alleged crime immediately upon their apprehension, before respondent or his attorney have had any opportunity to interview them -- thus depriving respondent of the surest and most obvious means by which he could establish the materiality and relevance of such witnesses’ testimony. Ante at 872-873. Truly, the Court giveth, and the Court taketh away. But surely a criminal defendant has a constitutional right to interview eyewitnesses to his alleged crime before they are whisked out of the country by his prosecutor. The Court’s decision today makes a mockery of that right. Accordingly, I dissent.

The premise of the Court’s holding is that

the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal alien witnesses,

ante at 872; this governmental power is conditioned only upon the Executive’s "good faith determination" that those witnesses possess "no evidence favorable to the defendant in a criminal prosecution," ibid. The Court sets up this asserted "responsibility" of the Executive Branch as a counterweight to its responsibility for "apprehending and obtaining the conviction of those who have violated criminal statutes of the United States." Ante at 863. Thus, the Court presents this case as involving a governmental "dilemma," ante at 865, in which the Executive Branch is caught between the conflicting demands of its "dual responsibility," ante at 864. This supposed "dilemma" is a pure figment of the Court’s imagination, repudiated by our precedents and by common sense.

The Executive Branch has many responsibilities, any of which may conflict with its duty to enforce the federal criminal law. For example, the Executive Branch has an obvious and imperative obligation to preserve the national security. But when the Executive Branch chooses to prosecute a violation of federal law, it incurs a constitutional responsibility manifestly superior to its other duties: namely, the responsibility to ensure that the accused receives the due process of law. The Government simply cannot be heard to argue that the criminal defendant’s rights may be infringed because of the Executive Branch’s "other responsibilities": given the vast and manifold character of those responsibilities, to accept such an argument would be to accede to the rapid evisceration of the constitutional rights of the accused.

This point is hardly a novel one. In Jencks v. United States, 353 U.S. 657 (1957), we noted that "the protection of vital national interests may militate against public disclosure of documents in the Government’s possession." Id. at 670. But at the same time we noticed:

[I]n criminal causes, " . . . the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. . . ."

Id. at 671, quoting United States v. Reynolds, 345 U.S. 1, 12 (1953). We also quoted with approval from the opinion of the Court of Appeals for the Second Circuit in United States v. Andolschek, 142 F.2d 503 (1944), in which Judge Learned Hand said:

While we must accept it as lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons, we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess; it must be conducted in the open, and will lay bare their subject matter. The government must choose; either it must leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully.

Id. at 506.{1}

The principle affirmed in these precedents is directly applicable to this case. Of course, the Government has a responsibility to execute our national immigration policy. But that responsibility does not conflict in the smallest degree with the Government’s "duty to see that justice is done" to the criminal defendant whom it has chosen to prosecute. If the Government wishes to pursue criminal remedies against the accused, then its other "responsibilities" must yield before the rights to which an accused is constitutionally entitled.

Of course, the Government’s duty to enforce the immigration laws should not be deferred indefinitely. But no inordinate delay is necessary in cases such as the one before us. The Southern District of California long ago adopted a procedure to enforce the Mendez-Rodriguez doctrine announced by the Court of Appeals for the Ninth Circuit in 1971.{2} The Southern District’s procedure represents a practical and sensitive accommodation between a criminal defendant’s constitutional rights under the Compulsory Process Clause and the Government’s policy of prompt deportation of illegal aliens. Under that procedure, illegal alien eyewitnesses are held in custody for a short period of time -- about 10 days -- after appointment of counsel for the criminal defendant. At the end of that period, the United States magistrate holds a material witness bail review hearing, pursuant to 18 U.S.C. § 3149. In the intervening time, counsel for the defendant may interview the witnesses, and determine whether they can provide testimony material to the defense. At the hearing, both prosecution and defense are required to show the materiality of each of the detained witnesses, or they are released and deported. Brief for Respondent 7; Brief for United States 13-14, 18. If this traditional Southern District procedure had been adhered to in the present case, the Government would have clearly discharged its constitutional obligation to afford respondent an opportunity to develop evidence bearing upon the materiality of the testimony of the witnesses to his alleged offense. In contrast, the Court permits the Government to adopt a wholly unilateral procedure that deprives respondent and future criminal defendants of any such opportunity.

The Court suggests that a criminal defendant should be able to "demonstrate either the presence or absence of the required materiality" even without having had an opportunity to interview the detained eyewitnesses. Ante at 871. But this notion has been flatly rejected by our precedents. Roviaro v. United States, 353 U.S. 53 (1957), denied the Government’s claimed privilege to withhold the identity of its informer, "John Doe," from the petitioner.{3} Roviaro, like respondent in the present case, was "present throughout the commission of this crime." Ante at 871; see 353 U.S. at 64 ("So far as [Roviaro] knew, he and John Doe were alone and unobserved during the crucial occurrence for which he was indicted"). But the Court in Roviaro refused to say, as the Court does today, that a criminal defendant "can establish no Sixth Amendment violation without making some plausible explanation of the assistance he would have received from the testimony" that he seeks. Ante at 871. Rather, the Court in Roviaro required disclosure simply because John Doe’s testimony "might have been helpful to the defense." 353 U.S. at 63-64 (emphasis added).

Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner’s identity or the identity of the package [of heroin]. He was the only witness who might have testified to petitioner’s possible lack of knowledge of the contents of the package that he "transported" . . . to John Doe’s car. The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused, rather than the Government, to decide.

Id. at 64 (emphasis added). Like Doe in Roviaro, the illegal aliens deported by the Government in the present case "played a prominent part" in respondent’s alleged offense -- if, indeed, they did not help to set it up without the knowledge of respondent. And they, like Doe, might have testified to respondent’s "possible lack of knowledge" respecting essential elements of the crime charged against him.{4} Under Roviaro, respondent, not the Government, was entitled to decide whether or not the illegal alien eyewitnesses in this case could give testimony material and relevant to the defense.

I dissent.