A Day in the Life of Public Defender Edgar Holguin: Border Patrol

El Paso sits right on the U.S. border with Mexico. When I drive along the interstate to work, the city of Juarez, Mexico, is on my left, so close that it can be hard to tell where there's a break between the two cities. Both are grimy and industrial. There are about 560,000 people in El Paso, and about a million and a half in Juarez.

I'm one of 18 trial attorneys who represent indigent persons accused of crimes. This office is one of the busiest in the country by case volume. Last year it handled more than 2,400 felony cases.

The majority of my clients are Mexican immigrants who were deported and have returned to the United States illegally. If they're caught, they wind up in the criminal justice system and face lengthy prison sentences — up to 20 years. It's not maliciousness or a desire to commit crimes that brings them back, it's a desire to work. A lot of them have a hard time understanding that they can go to jail for that.

The other clients are people who have driven drugs across the border. They're often "mules" — low-level members of large drug organizations. Usually they know nothing about the people who have hired them. They often don't even realize what they're bringing over or how much. For large amounts there's a 10-year mandatory minimum sentence; for smaller amounts, maybe two to five years.

I started here a couple of months ago, and I've got about 40 cases now. My battle is usually to reduce sentences as much as possible. I go to court in the mornings to handle a sentencing or a plea. My afternoons are spent on research or at the jail meeting with clients, doing what I can to help them understand what they're facing. This is one of the most difficult parts of my job. I explain that the laws are harsh. I talk to them about how the system is set up -and I tell them I don't necessarily agree with it.

Being Mexican-American sometimes helps, but I have to be careful. The legal system works differently in Mexico. There's a perception that attorneys are not really litigators. There's a lot of handshaking, passing of money, facilitating of things — "You don't want to go to jail, don't worry about it, I'll go talk to the judge and take care of it." It's not like that here. I do speak Spanish with my clients. If I know the area of Mexico they're from, we talk about it so they feel a little more comfortable with me. My hope is that they get a sense that I'm a person who will help them.

My family immigrated to the United States in 1976. My parents tried to make a life in Mexico but the opportunities were limited. Because my mother was born in America we were able to come over from Juarez legally. At home, we didn't discuss the problems of immigrants and border patrol abuses very much. There's a lot of fear in these towns. The border patrol is called the migra down here, short for inmigracion. They're kind of omnipresent, but I didn't fully realize that until I went to college and law school.

I took a class my junior year in which the professor focused on border problems. One case we studied took place in El Paso while I was in high school. There's a school on the border, literally on the river, that consists almost entirely of Mexican-American students. In the early '90s lots of Mexicans were trying to cross over, and when students walked to and from school the border patrol would sometimes drive up and pull guns on them or arrest them, even though they were citizens. There were always chases — through the high school, through the football fields, through the neighborhoods. The border patrol harassed people this way over a period of several years.

The work I do has made me more interested in the culture of the border. I see myself as someone who comes from a different world, and that has helped me learn who I am and what my role is here, which is, I hope, to have a positive influence.

The ethics question

Q: You're representing a client in a business negotiation. You've just received an e-mail from opposing counsel in response to a proposal you sent him. After reading the first few sentences, you realize the e-mail was intended for his client, not for you, and it reveals their strategy. What should you do?

Courts, ethics committees, and professors have presented varying opinions on what to do when this happens- and it does happen. Even the American Bar Association wasn't sure what to say in its recently amended Model Rules of Professional Conduct. Ultimately, the ABA decided a lawyer should inform the other lawyer of the errant missive. "The idea is to at least give the sucker a chance to figure out whether he can compensate for his error," says George Kuhlman, ethics counsel to the ABA. But the ABA's rules aren't binding in any jurisdiction; they're a "model" for creating conduct codes on the state level. Even so, for a lawyer to say "But it's not binding in my state" to explain why he ignored the rule probably would not be considered, well professional. Some, however, say the client comes first, no matter what. "You keep [the e-mail], you use it, you say nothing about it until and unless it becomes tactically desirable to do so", says Monroe Freedman, an ethics professor at Hofstra Law School. His reasoning is equally succinct: "Why alert the other side to what may now be your most effective tool? You have an ethical obligation to zealously represent your client and to communicate material information to him. If you ask the client, 'Should I use this?', I'd argue that in every instance the client will say yes."

Maybe so, but many lawyers would contend that the risk of being perceived as a member of the profession who ignores its universally accepted code of conduct is not a risk to be taken lightly.

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