Hawaiian Documentary

July 19, 2006

Transcript:

Michael Grant:
Tonight on "Horizon," the first case to be prosecuted in Arizona's new human smuggling law has been partially thrown out. Maricopa county superior court judge says incriminating statements made by captured illegal immigrants does not constitute proof of a conspiracy. Tonight we talk with Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio about the law, the decision and their efforts to curb the flow of illegal immigrants into the state. And a film airing here on 8 and PBS stations nationwide sheds light on the strength of the native people of Hawaii. We'll have a candid talk with the documentary maker. That's next on "Horizon."

Announcer:
Horizon is made possible by contributions of The Friends of Eight members of your Arizona PBS station. Thank you.

Michael Grant:
Good evening. Welcome to "Horizon." I'm Michael Grant. Last week two illegal immigrants arrested and charged under the state's new human smuggling law otherwise known as the 'coyote' law were acquitted. Judge Thomas O'Toole of the Maricopa County Superior Court ruled that prosecutors didn't have sufficient evidence to move forward with those cases. Judge O'Toole said that prosecutors must have evidence independent of immigrants' statements. There are still about 30 more cases of illegal immigrants pending. Although this ruling does not set precedent, several of those arrested illegal immigrants are planning to file a motion to dismiss their charges. Immigrant advocates have said in the past the law was never meant to be used against smuggled immigrants but rather against 'coyote's, the paid human smugglers. Joining us to talk about the 'coyote' law is Maricopa County Attorney Andrew Thomas and Maricopa County Sheriff Joe Arpaio. Good to see both of you.

Joe Arpaio:
Good evening.

Andrew Thomas:
Good to be here.

Michael Grant:
This is very, very confusing. So we'll try to sort through the thing. Andrew, I think a logical first place to start, because there's been some confusion on this point. There has been the controversy about whether or not what I refer to as smugglees or the illegal immigrants themselves could be prosecuted under this law, or just the smugglers. Judge O'Toole had ruled, had he not, that this was an appropriate use of the law. In other words, both the people being smuggled and the people smuggling could be charged.

Andrew Thomas:
Yes. In fact, the 'coyote', the third defendant, was convicted at trial. And so one of the three defendants under the human smuggling law was convicted. And we are moving forward with the prosecutions. And to the extent that this descends into too much of a legal seminar I trust you'll rein us in. But there are some important legal points that should be discussed to sort of set the table as it were for our discussion.

Michael Grant:
Sure.

Andrew Thomas:
We of course in bringing these prosecutions we've dealt with a wave and it's predictable with a new law, a wave of motions to dismiss and objections that are raised by defense counsel. The first major wave was motions to dismiss based on a couple of key legal theories. Number one, that the state's conspiracy laws don't apply at all to this scenario in which you are arguably smuggling yourself.

Michael Grant:
Right.

Andrew Thomas:
The other is that under the supremacy clause of the U.S. constitution the federal government has preempted states from passing human smuggling laws. The counsel brought in by the Mexican government tried to argue he was trying to knockout the prosecutions of the illegal immigrants but in reality he was challenging the constitutionality of the overall statute because that's the only way you get from a to b. Judge O'Toole ruled in our favor on both of those measures. He found that the conspiracy law could apply to illegal immigrants under these scenarios. He also found that the state of Arizona was not preempted from passing and signing into law by the governor a human smuggling law.

Michael Grant:
All right. So you've got a law that can be prosecuted under and I want to return to the case in a minute. But, sheriff, obviously-- I mean usually you want to go after the bad guys. Can't you make a strong argument here that it really is the smuggler that is the bad guy, not the smugglee?

Joe Arpaio:
Because they're conspirators. We go after people that commit crimes and people that are associated and conspire. So they should be brought to justice too. It's just common sense. You can take all the legal-- it is common sense. When you conspire with a criminal, you should be charged also. Maybe a different charge or the same charge. Common sense. These people are conspiring. They're paying the smuggler money. And committing that violation of the law. First they're committing another violation for coming into the United States to begin with under the federal. But this is a new state law.

Michael Grant: But if you train your enforcement resource on let's say five smugglers, you take out maybe countless thousands of illegal immigrants that are going to be smuggled. Train the resources on the smuggled immigrants, well you have captured yourself some smuggled immigrants but you haven't done anything to the five people making this thing work.

Joe Arpaio:
Out of the 249 we've arrested under this new law, and I thank the County Attorney for having the guts to interpret the law legally, and that gave me the opportunity to enforce the law. I am the only law enforcement agency doing it in the state. But if it wasn't for his interpretation we could not be arresting these people. That's one thing. But during the course since March 2, we've got about 25 smugglers, 'coyotes'. That's a good amount of 'coyotes' to arrest.

Michael Grant:
But you are tying up court time with a lot of people too. Obviously you have burned some resource on the two guys who were not convicted. Putting the law to one side, I mean is it the best expenditure, prosecutorial resource to focus on illegal immigrants instead of trying to focus on the smugglers?

Andrew Thomas:
Let me first just return the compliment. The sheriff has the guts to follow the legal opinion that we issued. And it's now-- the core of it has been upheld by the superior court judge, Judge O'Toole. So we move forward. As far as the judicial resources issue goes, the reality is we don't-- the sheriff and I don't write the criminal laws in the state of Arizona. We enforce them. The sheriff arrests and jails, and we prosecute. So if there's an argument that we shouldn't be doing these prosecutions, the remedy is to go to the legislature and the governor and get the law change.

Michael Grant:
Let's go back to the case, because I'm having a hard time understanding this ruling.

Joe Arpaio:
I can't answer the other question about resources?

Michael Grant:
You gave me a long answer.

Joe Arpaio:
Well the phoenix police brings in 200,000 misdemeanors. This happens to be felonies. Felonies are serious charges. So nobody should criticize me or the County Attorney for prosecuting felonies. This is not a little old misdemeanor, this law.

Andrew Thomas:
And it's been defined as a felony by the legislature and the governor.

Michael Grant:
I could ask if we enforce every felony. But I want to get to the details of this case because I don't want to run out of time. Can you sort of generally describe the circumstances of the arrest of this driver and these two smuglees?

Joe Arpaio:
Very simple. An alert deputy spotted some vehicles violating the law and traffic violations. He stopped the vehicle. Something was suspicious and the people inside were questioned. They admitted certain facts. The guy driving the vehicle was transporting. The law says anyone that transports is violating this law.

Michael Grant:
Or procures.

Joe Arpaio:
Or procures. We got the proper evidence. I don't want do give away all of our secrets. But we had the evidence. The County Attorney prosecuted-- a whole bunch of them already pled guilty. I guess you don't plead guilty in this country if you are not. They pled guilty.

Michael Grant:
Let me try to summarize the high points as I understand them. You got a big truck.

Joe Arpaio:
Two trucks.

Michael Grant:
Two trucks, carrying a lot of people. 54. You have obviously people without papers, indicating they're here lawfully, but you don't have to carry those. You had admissions from them that they are illegal and that they've actually paid people to transport them. Area circumstances of the arrest, does that lead to conclusion? Is this a well worn smuggling route? Was there any of that kind of evidence?

Joe Arpaio:
They travel on like interstate 85, not the main drags, at two in the morning, 3:00 in the morning. So you put everything together on the probable cause.

Michael Grant:
Okay. Now, let's go to the driver. The driver was convicted. Now in that case, was the primary charge against the driver smuggling or transporting, I guess is the determine used in the law. He was transporting illegal immigrants?

Andrew Thomas:
He was. And he was doing it for profit or commercial gain. Because he had received-- he was one of the illegal immigrants in the vehicles. But he had received a discount. So that was a gain that he had and that allowed us in part to charge him with human smuggling and we did obtain that conviction.

Michael Grant:
What are the elements of that crime? Just simply the transportation and also the compensation?

Andrew Thomas:
Right. If you are transporting or procuring transportation for somebody you know is not a United States citizen or who has immigrated into the nation legally, then you can be prosecuted. You do have to show for the underlying offense that the person did it for profit or commercial gain. But you can also show that people conspired with that person or others in the chain of conspiracy to get the people up to that point which they were arrested. And we felt we had done that in these cases. And we're gonna continue to put on our evidence and hopefully we'll get a different result. Hopefully we'll get a pre-trial ruling from Judge O'Toole for the cases that remain before him. Because we did have a disagreement on whether the evidence was there. And then we go on from there.

Michael Grant:
Okay. Now let's move to the two people, well the two people charged in this particular case who were being transported. They had admitted that they had paid for their transportation. And they obviously were illegal. But the judge, before those statements come in, as the judge put it, you have to have independent evidence of the conspiracy. Before the statements are admitted. Now we walked through some of the facts with the sheriff seemingly indicating that there was certainly something fishy going on. Can you explain, Andrew, why the judge said okay the case can go forward against the driver, but there's not sufficient circumstantial or factual evidence independent of the statements to go forward against the two smugglees?

Andrew Thomas:
It's not clear to me or others in the office at this point as to how the distinction was drawn in terms of the corpus delicti evidence versus the 'coyote', vis-a-vis the two illegal immigrants whose cases were dismissed. Just to explain the theory a little bit. The theory of corpus delecti which is criminal, it's something that's required to prove a criminal case --

Michael Grant:
The body of the crime?

Andrew Thomas:
Yes.

Andrew Thomas:
What it means is you don't want people coming in and confessing to crimes they fantasized about, they've just made up, or they're doing it because they've been sort of pressured into doing it or what have you. There has to be some independent evidence of the crime. A confession alone is not sufficient to prove guilt.

Michael Grant: Right.

Andrew Thomas:
But all kinds of evidence can be used and that's standard.

Michael Grant:
You used expert evidence, did you not, from the border of patrol that sort of went into some of the things that I was talking to the sheriff about.

Andrew Thomas:
That's correct. We had the deputy sheriff testified. We also had a border patrol agent who testifies who was at the scene said there were all sorts of telltale signs indicating this was a classic smuggling operation based on his experience, scraps of carpet that indicated people had been walking through the desert, Pedialyte which is used to ward off dehydration. A lot of other things like that in addition to the fact that you have just the circumstances of the stop and all and the arrest. So you had all of that. And the standard for corpus delecti is very low. I mean basically you just want to make sure there's some evidence in addition to the confession. And all three of these people --

Michael Grant:
That a crime has occurred.

Andrew Thomas:
Yeah that a crime has occurred. All three people freely confessed after they were read their lights. So it was frustrating we aren't able to put on to the jury the fact they had confessed and the other evidence.

Michael Grant:
Sheriff, given the ruling, what currently is your office doing in relation to any additional cases while you have this uncertainty about whether or not the smugglees can be successfully charged?

Joe Arpaio: We were work closely with the prosecutors. Every case we run it by the assistant County Attorney. So we keep abreast of that. We're not making many changes. We just want to lock up more.

Michael Grant:
But are you still arresting?

Joe Arpaio:
Of course. We just did yesterday. Over the weekend we arrested five more procuring marijuana. So instead of paying money they're taking it out by smuggling 100-pounds of pot into this area. So we're going full force. I am very comfortable with the legal representation. And we work together. And I feel very comfortable we're gonna convict people in the future regardless of what one judge says.

Michael Grant:
Incidentally, with the situation up in Wickenburg, I know yesterday, what, a lot of people under heat stress had been found in the desert up there?

Joe Arpaio:
I am a little disappointed. Because we're having trouble catching these guys. The word has gotten out in Mexico. I don't know how that happened. But it's all over don't come through Maricopa county. But this is something that happened on the west area of our county. I am a little surprised. But then I am not surprised. We got about 90, 95. An alert deputy sheriff working our program spotted a car, a vehicle. Stopped it then that led into about 90 illegals in the desert. No water, no food, four days without food and water. So we were able to rescue them and turn them over to ice only because we could not prove any type of violation under the new state law. But if we could have, they would be in jail tonight instead of a free ride back to Mexico in an air conditioned bus.

Michael Grant:
In other words, they didn't make incriminating statements the same way this set of defendants did?

Joe Arpaio:
That's right. We weren't able to get the transportation part of evidence.

Michael Grant:
All right.

Michael Grant:
Andrew, let's go back to how does-- I know you mentioned you are going to pursue it. But how are you going to pursue it? It seems to me you could face the same dilemma on every case. I mean absent a signed smuggling contract, it may or may not be difficult to put together the right kind of evidence. So how do you move forward on these cases in the future?

Andrew Thomas:
Well, first of all, substancetively, we believe and will continue to press forward with the cases because we believe that the evidence is there to show corpus delecti and all of the evidences of the crime. This judge for some reason took a different interpretation. I am concerned because if that interpretation of the corpus issue were applied to all conspiracy cases it would make it almost impossible to prosecute any conspiracy case. That's the concern I have. But I think as we work through these issues hopefully we're going to get-- and it may be something that just this judge has a particular issue with the way the case was presented. He has made a statement along those lines. So what we want to do is get a pre-trial hearing before the judge. Get all the remaining defendants who were before this particular judge and get a pre-trial ruling. So one way or another either if he rules against us we can appeal it. Or if he rules for us we can proceed with the trials. But I should emphasize there are many other superior court judges who have been assigned these cases. As it stands right now, each of them would determine for themselves --

Michael Grant:
Whether or not they think there's sufficient evidence?

Andrew Thomas:
Yes. And I'm hopeful with the original judge we can work through whatever issues there are that seem to have been a hold up there.

Michael Grant:
Any change at all in arrest or interrogation techniques to try to strengthen the case in light of what happens in this case?

Joe Arpaio:
That was the first case. Now we have experts. We don't rely on border patrol. We do our own interpretation. We increased our Hispanic language staff. As far as the general mechanics, I don't think we're changing much. I think we got good cases.

Michael Grant:
Any indication on timing? I mean how soon you might go up to the court of appeals on this issue?

Andrew Thomas:
Well we're trying to get a hearing before the first judge in the near future. And then with the other judges, you know, each judge of course runs his or her own courtroom. So we'll do it as the issues come up. But we're prepared to do that. We fully believe that the law should be enforced. I am not going to decline to make the resources available from our office just because it's a little additional work to have these hearings. It is a new law, in fairness, and it's appropriate for all these issues to be sorted out. I trust they will be. In proper fashion.

Michael Grant:
All right County Attorney Andrew Thomas thanks for joining us. Sheriff Joe Arpaio, good to see you.

Andrew Thomas:
Thank you.

Michael Grant:
Take care. Native people in the United States, namely American Indians and native Alaskans, have a long history of fighting for their rights as indigenous people. Native Hawaiians have been making a similar effort. But their struggle has largely gone unrecognized. A film airing on PBS stations focused on the spiritual strength, community identity of Hawaiians. And about programs to reestablish native language and cultural customs. Producer Merry Lucero sat down with the filmmaker and Hawaiian state official about how Hawaiians are seeking to extend official U.S. recognition of native Hawaiian political rights.

Merry Lucero:
The identity of many native populations is inherently tied to their homeland and their spiritual culture.

Edgy Lee:
I think that's how you understand who people are. By looking at what their spiritual base is.

Merry Lucero:
Filmmaker lee of "the Hawaiians: reflecting spirit" brings to life the spiritual depth of the Hawaiian people.

Edgy Lee:
I think a lot of native cultures are misinterpreted and misunderstood and not given the benefit of what it is about, you know what knowledge people have and retain.

Merry Lucero:
Like many native people, Hawaiians fight to break stereo types often depicted in pop culture.

Oz Stender:
People have an image of Hawaii as being hula dancers and grass huts and sunshine. While that's part of it, but the spiritual part of the people, that story's not been told.

Edgy Lee:
These images that came from Hollywood in early movies and travelers are really very short of what the truth is about the people here. That's what's so fun for a filmmaker; I and I think I speak on behalf of the other writers and producers, to be able to educate the greater part of the world to understand that when you come to visit Hawaii you really should understand who the people are. And because it makes the place so much richer, if you understand what this is all about.

Merry Lucero:
Lee says like many native populations, economic issues force Hawaii people from their own homeland.

Edgy Lee:
Hawaii is not ever going to be Hawaii if there are no Hawaii people there. Less than 7,000 pure blooded native Hawaiians exist today. Many people live abroad. Some in this area. They're forced to live abroad because it's near impossible to live in the Hawaii islands.

Merry Lucero:
The trustee of the office of Hawaiian affairs says several programs for Hawaiian indigenous people have been challenged as race based.

Oz Stender:
We're in federal court right now at the ninth circuit level. We've gone through the district court system. We're at the federal court level where the entitlements of Hawaiians are being challenged.

Merry Lucero:
He says a current congressional bill would protect Hawaii's indigenous people.

Oz Stender:
80% of the population of Hawaii is not Hawaiians. Hawaiians are a minority in their own state and have very little opportunities to protect themselves and to govern themselves. So it's important that the bill gets passed so Hawaiians can deal with that issue and put us on the same plain as the native Alaskans and American Indians.

Edgy Lee:
If you were in 19th century America, and you knew you saw what was happening to the Native Americans, and you knew you could do something to turn the tide, would you ? Well here we are today. There's a bill before congress. There are ways in which we can help the struggle of the native Hawaiian whose culture is in some believe teetering.

Oz Stender:
It's about justice. If the Alaskan natives had been recognized as being indigenous to these people and therefore deserve different treatment, and the American Indians had been recognized over 500, nearly 600 tribes have been recognized of being indigenous people of this land. And therefore have special treatment. We believe that Hawaiians are being discriminated against for not having the same recognition in these native peoples have.

Merry Lucero:
He says the issue at its root is similar to what immigrants have been recently marching for... Civil rights. And believes Hawaiian native people are being treated as immigrants in their own homeland.

Oz Stender:
Hawaiians have been demonstrating for over 50 years on that very issue trying to be recognized as-- while we are people of this country, we are also people of our own nation. And we should be recognized as such. So the immigrants that are marching against the country about the immigration law have a cause and they have a reason. And the reasons are not much different from our own cause and our own reason to be recognized as a people of this country.

Michael Grant:
The bill for native Hawaiian federal recognition mentioned in the story was proposed by U.S. senator Daniel Akaka of Hawaii. There is opposition by a group that wants statewide hearings and education on the issue. The bill has stalled in congress for the past six years. The documentary "The Hawaiians: Reflecting Spirit" airs tonight at 10:00 right here on 8. If you would like a transcript of tonight's show or would like to know about future topics log on to our website. You'll find it at azPBS.org and click on "Horizon". Now a look at tomorrow's show.

Mike Sauceda:
The survivor of the republic gubernatorial primary faces an uphill battle in the general election race against democratic governor Janet Napolitano. But, if that candidate does become governor, he'll face big issues such as immigration. Learn more about the republicans running for governor as all four candidates participate in a debate Thursday at 7:00 on "Horizon."

Michael Grant:
Thanks very much for joining us on a Wednesday evening. I'm Michael Grant. Have a great one. Good night.