Defense in sanctuary trial hangs on a twig and jury compassion

Even the government prosecutor, Donald Reno, concedes that the 11 sanctuary workers on trial here are blessed with ``creative counsel.'' Throughout almost four weeks of jury selection, defense lawyers flooded Mr. Reno and US District Judge Earl H. Carroll with motions to dismiss or delay the case. The judge, however, has denied all of the motions, and opening arguments from the prosecution and defense are scheduled to begin today.

The defendants include two priests, a nun, a minister, and seven religious lay workers. They say they were merely doing their humanitarian duty aiding Guatemalans and Salvadoreans fleeing torture and murder in their homelands. The government has charged the sanctuary workers with conspiring to smuggle, transport, and harbor illegal aliens.

Prosecution is expected to proceed on very narrow grounds. Special Assistant US Attorney Reno calls it a simple case of smuggling illegal aliens. The government's case will rest largely on the testimony of Jesus Cruz, the undercover informant for the Immigration and Naturalization Service (INS) who spent 10 months gathering evidence against the sanctuary workers.

Reno has stripped the indictment of any counts that might enable the defense to cast doubt on Mr. Cruz's credibility. Citing ``prosecutorial discretion,'' he has also said he will not use the tapes Cruz secretly recorded.

Some trial observers were predicting tough going for the defense. In a number of pretrial rulings Judge Carroll forbade testimony on US and international laws regarding refugees, religious motivation, conditions in Central America, and a ``good faith'' belief that the people being held were legitimate refugees.

But at the end of court Wednesday, the judge did grant some relief for the defense. Over Reno's objections, Carroll ruled that ``advice of counsel'' argument was permissible. Thus, defense attorneys can try to show that their clients were told that what they were doing was legal. Attorney Robert Hirsh calls advice of counsel ``one little twig'' on which the defense will hang. He and the other defense attorneys hope to bring out the states of mind and the intentions of the defendants, and that the juror' s compassion will play a vital role in their decision.

The defense has already asked Judge Carroll to excuse himself because they claim he is prejudiced against the defendants and because he owns stock in a company with a Salvadorean subsidiary. They have moved for dismissal because the indictment is technically faulty. And they have requested that the case be dismissed, citing discriminatory treatment of their clients in light of the fact that asylum in the US was offered to Salvadorean President Duarte's family.

Although the judge denied all three of these motions, he did listen to almost five days of argument on one dismissal motion. The motion was based on claims that the sanctuary movement is being selectively prosecuted.

The defense alleged that the government knows of Arizona ranchers and growers who regularly recruit undocumented workers from Mexico yet fails to prosecute them. But when an Arizona Farm Workers official, Lupe Sanchez, presented evidence to the INS of such activity at the Whitewing Ranch near Dateland, Ariz., he was told the owners would not be prosecuted. Whitewing is owned by a company in which -- the defense pointed out -- Judge Carroll owns almost 300 shares.

The defense also produced letters from the former US attorney for the district of Arizona, Michael Hawkins, assuring growers that they would not be prosecuted for providing housing for their illegal workers. Mr. Hawkins testified by phone from Phoenix that, while he had written such assurances, he had never offered growers any blanket immunity from prosecution.

In order to prove a selective prosecution, the defense must show that: (1) their clients were treated differently than others similarly situated (such as the growers); and (2) that the prosecution is discriminatory.

Attorneys attempted to prove that the prosecution was discriminatory, by arguing that the defendants were targeted by the government because they are outspoken critics of US foreign policy and of the current administration's policy on refugees.

Judge Carroll is expected to deny this selective prosecution motion as well, but the defendants and their lawyers remain confident of acquittal. Their confidence appears to ignore the specifics of the case, while concentrating on faith in the jurors' compassion.

So much of what happens depends on the ``emotional relationship'' between the judge, jury, lawyers, and defendants, says attorney Hirsh. Hirsh, representing the Rev. John Fife, says the case is really quite simple. ``The question is, Are these people criminals or not?'' he says. Hirsh and his fellow counselors are betting that the jury will say they're not.

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