Wednesday, April 19, 2006
Fritz
Folk sometimes ask me why I don’t practice law anymore. Short answer: in seven years I almost never felt like I was able to help anybody. Mostly, I worked with good people who never got the outcome that justice seemed to dictate. But sometimes even failure had some nebulous value. Here’s the story of the hardest case I ever took, and how my client lost everything but hope. Maybe that made it worthwhile for him. Maybe he did better with me than he would have otherwise. Hard to say. I hope I helped. He certainly helped me.
They thought Fritz might be a special case, but they didn’t really know what his problem was. He seemed to think that he’d won an asylum case, but when he tried to get some paperwork confirming his status an IJ told him to get a lawyer. He had come, as a result, to the SF Bar Pro Bono HIV-AIDS clinic, and they had sent him to me. From the outset I had no idea what I was getting into - but I could tell right away that it was going to be interesting.
Our first meeting was at the program offices where I was volunteering. Fritz walked in with his girlfriend and the standard tattered folder of documents. I’d had a little basic training on issue-spotting and remedial strategies, so I took the folder from him with an open mind, left it closed on the table between us, and asked him to tell me his story first.
Fritz was a skinny guy with very dark skin and tight dreads. He probably never stood taller than five-foot-seven and was shorter than that now. He had high, fine cheekbones and a broad, gentle smile, delicate features and delicate hands, but the whites of his eyes were disconcertingly muddy and stained. He wore a t-shirt and jeans, and looked to me with disarming humility and deference. His girlfriend also had dreads, but there the resemblance pretty much ended: she was significantly taller than he, a dirty blonde with pale skin and green eyes. She was large-framed and well-nourished, and sat by Fritz’s side with a look of maternal solicitude for him, and yearning hope towards me.
Fritz told his story haltingly, with a quiet voice spoken into his lap. His speech was richly inflected with a Caribbean drawl and was simple in structure and vocabulary, with occasional interjections of unintelligible patois. He frequently looked to Catherine for guidance - a refreshed recollection, a word, a nod of support.... she listened as he told a tale with which she was clearly familiar, and when Fritz’s eyes unfocused or he lost track of his facts, she stepped in and got him straightened out again.
Here, then, to the best of my recollection, is Fritz’s story: Fritz lived in Haiti as a fisherman. The Ton-Tons were extorting him for protection money; he refused and was beaten. He escaped on a leaky fishing boat to the U.S., was picked up by the coast guard off Florida, and there he requested political asylum. His case took a long time but eventually he won it. Now he needs a copy of his status documents, so he can get General Assistance - but there was some kind of legal problem. Could I help?
I reviewed his documents briefly; they seemed inconclusive. I made copies, got his contact information, and told them I’d be back in touch soon. A few days later I went to the INS and got his official file, which filled in some blanks for me: it contained a lengthy decision remanding the case to a lower court for further consideration and an appropriate ruling. Then, two years later, there was a motion to substitute out - his attorney was quitting, claiming that his client failed to communicate with him. The court put Fritz back in charge of his own case, with unacknowledged notice by mail, and held him responsible when he missed his remand hearing. An order of removal was in effect and Fritz was at grave risk of being sent back to Haiti. I needed to reopen his immigration case and get his status cleared up. A few more minutes with Fritz would probably give me all the information I’d need to take care of everything.
I called for another meeting at the volunteer offices and, in the meantime, I did a little more research - turning up one significant case that seemed very much on point, perhaps excessively so. Fritz and Cath showed up for their appointment right on time again, larded with anticipation. I apologized for the imposition on their time and asked for more information about Fritz’s situation. With the same docile submissiveness he went back to his story for me, and it went something like this:
His lawyer had told him, after the hearing, that he’d won his asylum case - which was good, because Fritz was having a tough time otherwise. After a series of scut jobs, he’d wound up out of work and homeless, squatting in an abandoned building in a bad part of town with a bunch of crackheads. He didn’t use - couldn’t afford, but more to the point, he never cared to try it, he assured me ingenuously. Something in his face made me want to believe him, even if just for that day, just for that meeting.
His story continued: the ‘heads told him he could earn some cash selling on the street. He did it for a while but then he approached an undercover cop in a sting operation and got himself extremely arrested. In court he’d had a lawyer and a translator, through whom the lawyer had advised him to plead guilty. Consequently, he’d served time in jail on a felony conviction (six months, I think). While there he’d gotten injured and they’d sent him to a hospital, where he’d been given a transfusion. That’s where he got the AIDS. He’d been living on public assistance ever since he’d gotten out of jail; he’d met Cath not long after his release and she’d been helping him keep things together. No problems since then. And with that, he raised his eyes to mine and smiled warmly through thin chapped lips, raising a feeble fist of solidarity.
I thanked him - he’d answered a lot of questions for me. But I did have one more: and with that I pushed forward a photocopy of a published opinion of the 9th Circuit Court of Appeals. “I found this while doing research for you,” I told them, trying to pick my words carefully. “This is a really important case. Not every case gets published - only the important ones - but this one is really important. Lots of people rely on it; it’s a case that established a very important right for a lot of people like you. It’s called ‘Desir v Ilchert.’”
Fritz’s face lit up. “Yeah, that’s me! That’s my case!” I probably gaped openly. This was the case that first established a right to asylum in the absence of overt government persecution, if the government was implicated by its failure to prevent private wrongdoing. The Ton-Tons were not the government, it was true, but they were thugs profiting by, and actively perpetuating, a régime so corrupt as to merit the coining of the term “kleptocracy.” When the Haitian government failed so utterly to protect Fritz from the mob, while effectively getting by on ill-gotten mob cash, it became part of that mob itself. And that, in turn, gave Fritz a good case for political asylum. The case was remanded to the Immigration Judge for a ruling consistent with these findings. Victory was ours.
Except that this case had been in the works for years, during which time Fritz had been having increasingly hard times. His lawyer had told him about the appellate victory, but then Fritz lost his job and his apartment, and completely lost touch with everybody while he was in jail. He never understood that he needed to go back to court to wrap up his asylum case. And now his immigration file showed that his lawyer had withdrawn, the case was never completed, and the IJ had ordered removal. That meant “kick him out.” Fritz was in trouble. We needed to get this fixed up quickly.
“But there’s a problem,” I continued. “It’s your conviction. You can’t get asylum if you’ve got a conviction for dealing coke on your record. Let’s talk about what happened.”
The conversation was sketchy - he didn’t seem to understand well what had happened when he’d gone to court. He certainly had had no idea that his guilty plea would automatically get him kicked out of the country. I set another follow-up appointment with them and then went to the Hall of Justice to check some more records. I copied his file and took it home, looked over it at leisure. Fritz had been assigned to a public defender who’d gotten him a translator; they’d consulted and he’d pled guilty. Case closed.
There was not much there for me to work with, so I went to the PD and asked for his file too. He was adamant there’d been no error in the proceedings, but in view of the potential consequences he would agree to violate his usual policy and let me see his records - but I wouldn’t find anything there, he assured me. The files were sparse, but they did identify the translator as certified in French, not in Haitian creole. I asked the attorney about this and was assured that French and Hatian Creole were sufficiently identical as to be interchangeable for the purposes of translation in court.
I thanked him and refocused my research on the subject of Hatian Creole, the primary expert in which was a professor at some improbable midwestern farm-belt college. I contacted him and he provided a declaration and some reference materials, asserting unequivocally that Hatian Creole was not French, and that a French translation would be mostly unintelligible to a Creole speaker. Fritz and I then arranged to go back to court to try to have his conviction vacated.
Success would mean that the conviction was cancelled and the case would be as if it had never been prosecuted - a clean slate for both sides. The DA would be entitled to re-file the charges, but that seemed unlikely, since three years had elapsed since the original trial. Anyway, we agreed that it was better to fight the conviction even if it might just be reinstated later, than to give up without trying.
But time was now getting to be a concern. Fritz was starting to look really thin, and his voice was often a mere whisper. I’d had to move our visits from the volunteer offices to the tenderloin flop-studio that he shared with Cath, or, on bad days, at his hospital bed at the big AIDS clinic at General Hospital. But he garnered the energy to come with me to court, wearing his best polo shirt and least-worn chinos. We argued that the French translator was incapable of providing Fritz with a sufficient level of understanding of the charges against him and their consequences on his asylum case. Creole and French were not identical. Fritz hadn’t known what was going on when he pled guilty.
The judge agreed and remanded the case back to the DA for a decision on reprosecution. The evidence had already been destroyed, though, and the arresting officer had moved away. They declined to refile - case dismissed. No conviction. No impediment. That meant it was time to file to re-open the asylum case. That meant coming back to the immigration court and convincing them that Fritz deserved the relief he’d won years prior, despite his failure to complete the process before. This part could get tricky.
Turns out it wasn’t tricky at all. It couldn’t have been simpler. I was putting together the Petition to Reopen when Cath called and asked me to visit Fritz at Mt Zion hospital. I wondered, why was he there - when General had the world-famous AIDS clinic? It made sense, though, once I got there.
Fritz was barely alive. His body was wasted to a skeleton and his eyes hung clouded and sightless in the hollow orbits of his skull. He had some palliative IVs going but treatment was clearly no longer an option. He was closer to death than any living person I’ve ever seen. I sat by his side and caught him up on his case, chatted aimlessly about life and the city.... Fritz occasionally mumbled incoherently, almost involuntarily, and never acknowledged my presence. I didn’t think he’d have been able to turn his head toward me, if he’d even known I was there.
I placed my hand over what was left of his and made an apology to him on behalf of a universe that never let him have a chance. His hospital roommate rasped at me with a broken lungless voice, “He doesn’t need that now! You’re too late! You were always too busy and now it’s too late!” His goading taunts excoriated me as I left the ward; they rung in my ears as I drove home and hid in my bed.
Fritz was dead within two days. I attended a small memorial service for him in the National AIDS Grove in Golden Gate Park. It was a nice gathering, and I was glad to see Cath and some of the other advocates again, and to recall some happier memories than my last visit with Fritz. He’d been cremated and Cath planned to take him back to Haiti, to his old village. It made sense to me. With all he’d been though, it was still the only place that he could truly call home. This nation he’d risked his life to enter never really made him feel very welcome. His name is not engraved on the spiral of names in the Grove’s memorial plaza, but it sure as hell is engraved on me.
