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May 04, 2010

Haitian on Trial: Testing "The Earthquake Defense"

Haiti_earthquake_map Does the devastating earthquake in Haiti — and the need to send money to suffering family members there — provide a valid defense for a Haitian immigrant caught illegally crossing from Canada into Vermont?

We're about to find out.

Thirty-seven-year-old Felicier Edmond, one of more than 100 Haitian immigrants jailed for illegally crossing the Canada-Vermont border this winter, is pressing his case at a jury trial in federal court in Burlington — and the tragic earthquake is central to his defense. Edmond goes on trial May 17 and 18 for illegal re-entry. He was caught on February 5 near Newport by U.S. Border Patrol agents acting on a neighbor's tip.

(Click here for 7D background on the flood of Haitians pouring into Vermont).

According to court filings, Edmond's lawyer, David Watts of Burlington, will argue a "necessity" defense that amounts to: Edmond's family in Haiti faced a life-and-death situation after the earthquake and had insufficient funds to survive without money sent by Edmond, and that he had to return to the U.S. because he couldn't find work in Canada.

Federal prosecutors, meanwhile, have asked the judge to exclude any testimony about the earthquake — or its impacts on Edmond's family — as irrelevant and prejudicial.

In court papers, Watts portrays Edmond as a "classic first-generation immigrant" who came here "to make a better life for himself and his family."

"He worked hard at difficult underpaid employment, paid his taxes, and always supported his wife and son, a native U.S. citizen," Watts writes in a court brief.

Then the earthquake hit. Edmond's 13-year-old daughter Rose sustained a serious leg injury. His brothers and sisters, and their children, were forced to flee Port-au-Prince for the cramped confines of their parents' home six hours outside the city, in rural Haiti.

"Before the earthquake," Edmond's lawyer writes, "by combining their meager Haitian incomes and significant monthly support from Felicier, his parents and siblings and their families were barely able to get by. Since the earthquake, their humble circumstances have gone from desperate to life-and-death."

U.S. Attorney Tristram Coffin has asked the judge to exclude evidence about the earthquake and its impact on Edmond's family in part because, he says in a court filing, it would "improperly appeal to the jury's sympathy and risk improper influence."

If a desire to help one's family was a defense to illegal re-entry, Coffin writes, then "the statute would be eviscerated."

Moreover, Coffin argues that Edmond has failed to prove that his family is in a life-and-death situation, or that they couldn't survive without his money. Coffin notes that Edmond was apprehended with $705 cash in his pocket. Why didn't he send that home? And why didn't Edmond, who apparently owns a home in Ft. Lauderdale, Fla., sell his assets to support his Haitian relatives?

Finally, Coffin argues that Edmond's sworn statements to border agents contradicts his current defense.

"When asked, 'What was your intention of coming to the United States?' Edmond responded: 'It was too cold in Canada, I was trying to get back to my family and my house.'

"Were his motives as altruistic as his Motion suggests," Coffin writes, "he would have advised Border Patrol accordingly."

Starting in January, Haitians began flooding into the U.S. from Canada, in many instances in  hopes of gaining "temporary protected status" — a special protection that would prevent the U.S. from deporting them back to Haiti. The Obama administration added Haiti to the list of countries deemed unsafe for deportations following the January 12 earthquake.

Edmond appears to be that rare Haitian-immigrant case that is actually going to a jury trial. Most of the Haitian defendants appear to  be pleading their cases out. The human story presented in Edmond's defense is compelling — but whether a jury ever gets to hear it is far from certain.

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