Fellow prosecutors, if you ever want to piss off a judge, I highly recommend overstating your case during the earliest phases of the litigation. (I might or might not have done this a time or two during my early years.) Come out with a self-congratulatory bang, declare your case overwhelming and an all-but-guaranteed winner, and then enjoy your loss of credibility as it dawns on the judge that she’s been hoodwinked.
And if you really want to lose the judge, do your overhyping as ostentatiously as possible, preferably in broad public view. Maybe issue a splashy press release. Or perhaps convince the U.S. attorney to make a public announcement. Better yet, see if you can get the attorney general of the United States to stand behind a podium and proclaim your case a surefire conviction. Maybe even poison the public with inflammatory allegations about the defendant that go far beyond the actual charges in the indictment. Sit back and watch as the judge turns fully against you. It never fails.
Witness, for example, the rapid unraveling of the Justice Department’s case against Kilmar Abego Garcia. This one slid under the radar, coinciding as it did with the outbreak of military conflict in the Middle East. While Attorney General Pam Bondi’s boastful announcement of the Abrego Garcia indictment garnered live national media coverage, it went largely unnoticed a few weeks later when the defense team stripped the bark off the prosecution’s case.
Earlier this week, a federal magistrate judge heard arguments and ruled that Abrego Garcia is entitled to pre-trial bail. He won’t walk free, of course; the prosecution is appealing the bail ruling and, even if they lose again, Abrego Garcia will likely remain in the custody of immigration officials. But the judge’s decision is a sharp rebuke to the prosecution.
Abrego Garcia’s criminal defense team (which is handling the case pro bono) includes Sean Hecker, David Patton, and Jenna Dabbs. The first two were Southern District of New York federal defenders, while Dabbs was a colleague of mine at the SDNY U.S. attorney’s office. I’ve seen all three at work in the courtroom; they’re wicked good. And they made a convincing argument that the prosecution’s case against Abrego Garcia is a mess.
Let’s be clear about what the Justice Department has (and has not) actually charged here. The indictment contains two counts: knowingly transporting illegal aliens across state lines, and conspiring with others to do the same. Nonetheless, DOJ dropped into its indictment and press statements casual assertions that Abrego Garcia was an MS-13 gang associate; that he transported guns and drugs; that he “abused” female passengers and solicited child pornography; and that he took part in a murder. Tellingly, the Justice Department has chosen not to back up its most sensational allegations with actual criminal charges; all that stuff about guns and drugs and child porn and murder just hangs out there in the public ether, but none of it is actually charged.
The magistrate judge who granted bail to Abrego Garcia found that the prosecution’s core allegations rest upon multiple layers of hearsay, linguistic contortion, and evidentiary sleight of hand. For example, prosecutors argued that Abrego Garcia was not entitled to bail because his offense involved a minor victim. An FBI agent testified that, during a 2022 traffic stop in Tennessee, one of the people in a car driven by Abrego Garcia was 15 years old.
Yet, as the judge noted, that contention rested upon three layers of hearsay. Some unknown person hand-wrote a note about the passenger’s purported 2007 date of birth; somebody else photographed that note; a local cop saw the photograph of the note, interpreted it, and then relayed his assessment to the FBI agent who actually testified. The prosecution curiously chose not to call the local cop as a witness at the hearing, when it certainly could have. And, as the judge found, it’s not even clear whether the handwritten note says “2007” or “2001” (in which case the passenger was an adult). Worse yet, the government admitted it has been unable to identify or locate the purported minor on whom their argument rested. It’s just some nameless kid out there, maybe.
The defense team also cast doubt on the government’s cooperating witnesses. The prosecution’s star witness, we’ve now learned, is the acknowledged ringleader of the human smuggling operation – and a twice-convicted felon who has been deported from the United States five times and was released early from a 30-month prison sentence in exchange for his cooperation against Abrego Garcia. Another cooperating witness is also a felon and a prior deportee; worse, he’s a relative of the first cooperator (which suggests they’d have the opportunity to align their testimony). I’m certainly not queasy about the reality of cooperating witnesses; I routinely called murderers as cooperating witnesses against mob bosses and others. But it’s a disastrous idea to call the leader of a criminal enterprise to testify down the chain of command against an underling, particularly if the boss has credibility issues.
Suddenly, the prosecution looks wobbly. Start with the unavoidable reality that this case was politically supercharged from the moment the Trump administration erroneously deported Abrego Garcia to El Salvador – the one place he could not legally be sent. Some sizable number of potential jurors in Tennessee surely see him as a symbol (and perhaps a victim) of the Trump administration’s inept, overzealous immigration policies. The jury will inevitably include a handful of people who may want to send a political message with a not-guilty verdict. The chances of a hung jury loom large.
And, as we’ve seen, the prosecution’s evidence appears flimsy. Remember that criminal trials are not about who’s got a more believable or compelling story. They’re about whether the prosecution can prove its case beyond a reasonable doubt, to the unanimous satisfaction of twelve jurors. “He’s probably guilty” isn’t nearly enough.
Seemingly in recognition of the infirmity of its criminal case, the Justice Department has already begun to construct an off-ramp for itself. Prosecutors informed the Court this week that, in light of the bail ruling, the government intends to deport Abrego Garcia to some country other than El Salvador. Timing remains fluid; prosecutors told the judge there are “no imminent plans” for the deportation. But they’ve now laid the groundwork for a full-scale retreat. At any given point before trial, prosecutors might gravely inform the judge that the defendant has been removed and, in light of that unfortunate circumstance, the Justice Department deems it unnecessary to complete the prosecution.
This is not, of course, how things ordinarily work. Show me one other case where the government has improperly deported an illegal alien and then brought him back to the United States on a routine criminal charge and then re-deported him before trial. But little about this case is normal. It’s prosecution as political cover now, and the Justice Department seemingly has overplayed its hand.
