SAVING SERGEANT TAHMOORESSI
Sergeant Andrew Tahmooressi (Andrew) served two tours with the Marine Corp. in Afghanistan before being placed on inactive status and returning home. In March of 2014, he drove from his home in Florida to the Veteran’s Hospital in San Diego, California, to receive treatment for a Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD) as a result of an Improvised Explosive Devise (IED) that threw him from his position atop a Humvee as a Fifty Caliber Machine Gun operator. His performance in combat included an engagement for which he was given a rare promotion on the battlefield to Sergeant for valor and gallantry.
On March 31st, 2014, Andrew, with all of his worldly possessions in his truck, including three firearms legal to possess in the state of Florida, mistakenly exited the last off-ramp on Interstate Highway 5 going south into Mexico at the Tijuana border. He attempted to turn around before leaving the United States. Unable to do so before reaching the border, he asked a Mexican federal officer if he could simply go back into the United States. Instead, he was sent to secondary inspection where, when asked about what was in his truck, he freely told them about the guns and where they were located. Bringing firearms into Mexico is a serious offense for which he could receive a sentence of 21 years in prison.
I was asked by Jill Tahmooressi (Jill), Andrew’s mother, to collect evidence on this side of the border and assist in the selection of legal counsel in Mexico. The Mexican legal process took over 210 days, during which time Andrew was held in custody in two different Mexican prisons. As time passed frustration in the United States over his continued confinement grew into a media firestorm, and a political movement calling for sanctions against Mexico. This effort was supported by a variety of political pundits, celebrities and politicians, the most prominent of which were Col. Oliver North of The Freedom Alliance and future presidential candidate Donald Trump. Anger festered on both sides of the border as the continued imprisonment of an American war hero served the purposes of anti-Mexico politicians in the United States, and nationalist sentiments in Mexico stoked by the perceived interference in their criminal justice system and resentment over the thousands of Mexican citizens imprisoned in the United States.
The story that follows is but one example of the courage and effort it took to win Andrew’s release. A relentless battle fought on both sides of the border by Andrew’s mother, myself, my investigator Len Newcomb, and a courageous Mexican lawyer, Fernando Benitez.
I was nervous the first time I met Jill, but she put me at ease immediately. Picking her up at the airport in San Diego prior to our trip to Tijuana Federal Court, I was immediately struck by her calm demeanor and obvious resolve. A successful professional in her own right, she had researched my background and quickly thanked me for signing on.
Andrew had already been incarcerated for three months, and Jill’s battle to win his freedom was in full swing. My commitment was not only based upon my belief in his innocence, but also my distress at learning that he had been an inmate at La Mesa Prison.
Having regularly traveled to the suburbs of Tijuana over the last 25 years to build houses for the poor with Baja Christian Ministries (BCM), I was familiar with the Baja Peninsula and its people. My work with BCM and Prison Fellowship (PF) had even taken me into both La Mesa and Ensenada prisons. La Mesa was the most desperate place I had ever been. A 16 x 20 cell held as many as 20 men. Some of them were three to a bunk. Basic necessities of life, such as food, soap, tooth paste, and toilet paper were not provided by the prison. Relief organizations like BCM and PF regularly went into La Mesa to distribute these supplies.
I also knew La Mesa to be notorious for the control cartel members have over the other inmates. Their influence extends beyond prison walls into urban neighborhoods in both Mexico and the United States. One inmate of La Mesa was known to be in charge of organizing the entire drug trade in Ventura County, California, where I did most of my criminal defense practice.
BCM and PF were critical to Andrew’s survival as he received regular spiritual counseling from Pastor Luis Benitez Juarez. It is no exaggeration to suggest that Pastor Luis’ care and compassion may have saved Andrew’s life. Andrew’s level of despair, combined with his PTSD, had left him so despondent as to consider suicide as his only escape from the nightmare he was living.
When first incarcerated at La Mesa Prison, Andrew was surrounded by other prisoners and told that they were “hit men” in a drug cartel. They sought to extort protection money from Andrew and his family. It started like this, “the only way you are going to get out of here is on a stretcher, dead.” This didn’t work on the hardened Marine, so they went to threats of gang rape. Finally, when they told Andrew they could find out where his family lived and have his mother murdered, his PTSD kicked in. “Improvise, adapt and overcome,” this Marine Corp motto took charge of Andrew’s mind. Andrew decided he should escape from La Mesa.
His plan was impulsive in design, but extraordinary in execution. As the prison guards later reported, “he scaled the fence like a Ninja,” got to the top, cleared the razor wire, and dropped down to the other side. A rifle shot echoed off the prison walls, but Andrew was undeterred. Having made it over the main fence, he sprinted for the exterior chain link fences that surrounded the perimeter of the prison. He scaled the first with ease throwing himself over and landing on his feet. One fence to go, but the guards were on him. As he reached the top of the second fence, he felt someone grab his foot, but he managed to pull away and again throw himself over the razor wire. When he landed a squad of guards surrounded him. Thrown to the ground, Andrew prepared himself for the promised beating.
Clubbed in the back, kicked in the ribs, forced to his knees; then repeatedly slapped back and forth across the face. Blood flowed freely from his lips and nose, but Andrew resolved himself to endure it like a Marine captured by the enemy. In fact, as he later reported, “I was grateful that his punishment left no permanent injury.”
Placed in handcuffs and hog-tied, they carried him like a side of beef on a pole back to the prison. There he was held spread eagle by restraints to the four posts of a bunk in an isolation cell. Andrew remained tortured like this for two weeks.
Isolation can be the cruelest of punishments, particularly for someone suffering from PTSD. Finally allowed to move about in his cell; in a moment of despair Andrew took out the one light bulb, broke the glass and attempted to cut an artery in his neck.
Jill received a phone call from William Whitaker, Unit Chief of the United States Consulates Office in Tijuana, Mexico. “Mrs. Tahmooressi, Andrew tried to kill himself. He is okay, though he was found in a pool of blood. He broke a light bulb and cut his neck, but he’s going to live. He’s in the prison infirmary now under constant surveillance.”
Jill took in this revelation like the professional she is, but soon left her office for the privacy of her car. Clutching the steering wheel, the tears she had held back for so long began to flow. Next came the gut wrenching wails of a wounded animal in agony. As she emptied herself of grief, a new emotion took root in her consciousness, a sense that she was not alone. “As the pain poured out, peace flowed in. A blanket of warmth surrounded me; it surpassed all understanding.” Jill then cried out to God in prayer. A mother’s prayer for the life of her only son.
Jill’s paralyzing fear now faced new courage. No longer would she live in terror of the next horror she heard about Andrew. A resolve to take action set in, no more sitting idle and hoping for the best, she would find a way to save him.
The next day Jill received a phone call from Andrew. Pressure from the Consulates’ office and concern about negative publicity in the U.S. made it happen. Before long the inevitable question, “Were you really trying to kill yourself?” “Yes,” was his only reply. Jill made no further inquiry, rather she broke into prayer. Andrew would later report, “My mom prayed over me and it gave me the strength to escape out of that life-threatening situation.” Andrew had hope, hope that he would survive, and that he might even be set free someday.
Jill reasoned her best strategy involved the news media and politicians. Andrew’s background and current circumstances made for a compelling story and worthy cause. She started with Congresswoman Debbie Wasserman-Schultz, her representative in Florida and a few local media-outlets. The story of an Afghan war hero wrongfully held in a Mexican prison got picked up across the nation. Fox News covered it daily. Various Fox commentators, and Greta Van Susteren in particular, championed Andrew’s release. The publicity and political influence caused Andrew’s transfer to El Hongo Prison in Tecate. A modern maximum-security facility, Andrew wouldn’t get another chance to escape, but they could keep him away from the other inmates. Andrew was still in prison, but for the time being he was safe.
- - -
El Hongo prison rises out of the Mexican desert like a cold lifeless monument to despair. It is a modern megalopolis surrounded by an exterior concrete gray wall, some fifteen feet tall, further enclosed by a chain link fence with razor wire at the top. The area in between is designed to create a kill zone visible to the towers strategically distanced apart, so that the marksmen have a clear shot at any inmate caught within.
At El Hongo, Andrew’s mental and spiritual health improved as he received regular visits from local missionaries. Andrew grew bolder in his faith, even to the point of walking around the prison yard with Pastor Luis singing Onward Christian Soldiers.
We journeyed into Mexico to get a briefing from Andrew's current lawyer and State Department officials at the American Consulate in Tijuana. This time we were accompanied by Efren Cortez. Efren worked for an international security company whose CEO had been following Andrew’s story in the press. Concerned for Jill’s safety while in Mexico, the CEO offered to have Efren act as our driver, interpreter and security officer. Efren served in both Afghanistan and Iraq as an Army Ranger. A veteran of 500 combat missions, Efren was capable, competent, and fearless. His mere presence gave us courage.
The meeting at the Consulate didn’t go well. It soon became apparent that Andrew's lawyer was in way over his head. “He never crossed into Mexico; he was in the neutral zone when he was stopped.” I noticed Mr. Whitaker cringe at this assertion. I then asked, “Is there such a thing as a neutral zone?” Whitaker quickly answered, “No, there is not.” He then followed me into the men's room for an off the record conversation. There I was told our lawyer had never read the court file, and that he had already missed a crucial deadline for filing a motion to dismiss.
When we got back to the car, I explained this to Jill, and she quickly accepted my recommendation to get a new lawyer. We went back into the consulate to ask for a recommendation. The first guy we called thought it too hot to handle, “I don't do political cases.” The second, Fernando Benitez, already knew the case, and agreed to see us that day.
Fernando Benitez was the real deal. He had all the outward trappings of success, large dark wood paneled conference room in his downtown Tijuana office, and a small army of junior lawyers and assistants; he obviously knew what it took to win. In his mid-forties, Fernando stood just under six feet, with dark well-trimmed and slightly graying hair and matching beard. Speaking impeccable English, he could not have been more presentable. But what impressed me most about Fernando was his willingness to listen. Jill and I had countless questions which Fernando patiently answered in detail. His enthusiasm for Andrew's case was obvious, and his courage undeniable. Jill soon made the decision – which would later prove pivotal – to hire Fernando Benitez. He would see Andrew's case to its conclusion.
The Consulate had made arrangements for Jill to visit Andrew at El Hongo. Efren and I followed the State Department suburban carrying Jill and other Consulate staff. When we arrived, we were told only Jill would be allowed in and she would have to endure a strip search before entering. Efren and I were outraged, it seemed to me nothing less than an intimidation tactic. Jill was resolute, telling us, “not to worry, I'm a nurse, I'm used to bodily inspections.” Still, Efren and I seethed at the thought of this beautiful lady having to endure such an indignity to visit her son. Perhaps it was best we wait outside.
As it turned out we would not be alone. There were two lean-to shacks, one on each side of the road. One functioned as a small store, set up just next to a drainage pipe from the prison spewing raw sewage onto the desert floor. The second, as a sort of bus stop, where four men and a woman sat waiting for something. We had parked near the bus stop, and I thought we might walk around the perimeter of the prison to get a better look at it. We didn't get far before two guards with M-16s approached us concerned we might be casing the joint. We returned to the car to wait however long it took for Jill to return. The crew at the bus stop gave us the once over as we passed by.
They could have been cast in The Good, The Bad and The Ugly, as all of the men had the hardened look of the recently incarcerated. One man – the youngest and strongest – was of particular concern. As we walked by, I noticed he held a seven iron in his right hand and was rhythmically slapping it into his left. As we reached the car the woman called to us, “Why are you here?”
I took the bait, explaining who we were there to see. She knew Andrew’s story, and that he was at El Hongo, so I didn't have to give details.
“I've been coming to this prison for 20 years to visit my son.” I heard Efren rustling around behind me, I had violated his rules of engagement.
“See those vans over there? I take some of the men home, let 'em stay with me if they have nowhere to go.”
“That's gotta be a lot of men, over 20 years.”
“Not really, they don't let too many out, maximum security and all. When I get a new one, I drop someone off in Tijuana, I try to get 'em on their feet.”
Impressed, but thinking of Efren, I just nodded.
“Look at this guy, he just did ten years, no family, no clothes, got nothin'.”
I noticed the tall, thin man in the middle dressed in gray – gray t-shirt, gray sweat pants- and shoes that could no longer be bound by the tape meant to hold them together.
“The problem,” she continued, “even if he got to Tijuana, everyone knows he's a convict, … he won't have a chance.”
“About my height, thinner,” I thought. I opened the trunk and grabbed my suitcase. “Three shirts, two pairs of pants, assorted socks and underwear, that should do him for a while.” I thought better of it for a moment, then took forty bucks from my wallet and slipped it into the pant pocket. Efren was on me, but instead of a scolding, he pulled out a new shirt. “Might as well be all in,” he muttered.
“Here, have him try these on.”
She stood and then ran to us, dust stained tears running down her cheeks. “Bless you both, this will make all the difference.”
The man in gray remained seated, until she returned to him saying, “Para ti, la ropa es para ti.” He disappeared out the back clothes in hand. The other two men got up and moved towards us. I feared a shake down, until, the older one extended his hand, “Muchas gracias seńor.”
“De nada,” was all the Spanish I knew.
Our moment didn't last as the black Suburban pulled up returning Jill. It had gone well; she had lifted Andrew's spirits with hope of a winning strategy. They even chose to forgo the strip search. All Jill wanted to do now was go home.
Efren took charge, directing us to the car, fulfilling his part of the mission. As we pulled away, I saw the man in gray wearing Efren's shirt, my pants and a delirious smile.
- - -
The criminal justice system of Mexico is completely foreign to any practitioner of the common law tradition in English speaking countries. Its process is “inquisitional” rather than “adversarial” and many of its roots grow out of the Napoleonic Code. Legal commentators have described it as:
Completely written and secret... characterized by slowness... (lack of transparency), and especially the unequal treatment afforded prosecution and defense. “... the defendant actually appears guilty until proven innocent. 1
The prosecution is brought by the “Public Ministry” which is also responsible for investigating the charge. It is endowed with “public faith” [fe pũblica], such that its actions are almost incontrovertible. It falls to the defense to rebut the assertions of the public prosecutor compiled during his investigation.
The entire case is submitted in writing, witness statements are provided as affidavits, thus there is no right to cross examine the declarant. Guilt or innocence, and the appropriate sentence, is determined by a single judge in a document entitled “Final Resolution.” When and how the “Resolution” is presented is largely within the discretion of the judge. A lack of procedural time limits, or sanctions for failing to timely submit a case, allows defendants to be held in custody for years without a finding of guilt or innocence.
For a criminal defense lawyer, use to public trials requiring live witnesses, cross-examination and best of all twelve impartial jurors; Mexican criminal procedure was a nightmare I could hardly fathom.
1. Mexico's Traditional Criminal Justice System, by Jane Kingman-Bruntage at Page 3; original citation is Mergier 2012.
Fernando took great pains to explain it to me when we were alone, knowing my reaction would not instill confidence in Jill. Fortunately, Mexico passed a judicial reform law in 2008 adopting many of the procedural safeguards of an adversarial system. The reform was to be gradually implemented, and our judge had already granted Fernando the opportunity to question the border agents.
The hearing took place in a Federal courthouse in Tijuana. We were there to observe the agents' testimony and submit video evidence of the freeway entrance and border vortex on Interstate 5. The video was prepared by my long-time private investigator Len Newcomb. Len had also taken pictures of the freeway entrance sign that was so covered in graffiti that the “SOUTH” portion was nearly impossible to read.
Unintentional entry into Mexico was a defense to the charges, but the burden of proving it was on us. Getting the video into evidence was not a sure thing under the rules of procedure developed before the advent of the electronic age.
Efren drove again, and took care of all the logistics. He was particularly good with the locals as he had been born in Mexico and regularly visited family on the Baja Peninsula.
When we arrived at the Courthouse in Tijuana, we were surprised by the throng of reporters waiting outside. The case had become big news on both sides of the border. Fox News provided coverage nightly as Mexico's continued imprisonment of an American war hero drew huge Nielsen ratings. Conservative politicians also jumped on the band wagon calling out the Mexican government and blaming the Obama Administration for failing to win Andrew’s release. This created a political backlash in Mexico amongst nationalist politicians and media who felt bullied by the United States. They claimed hypocrisy, since the United States was detaining thousands of their citizens caught trying to cross the border. Getting Jill safely through this gauntlet and into the courthouse was our first concern.
We decided to park down the street at Fernando's office and walk over. Efren at point, Len behind, with Fernando and me covering Jill's flanks as we made our way down the broken sidewalk. The exterior of the courthouse was protected by a slated steel fence, and no press was allowed within its perimeter. Walking proved a strategic advantage, as the media thought we would arrive in vehicles on the street. We managed to slip in a side gate with few of them noticing. Once inside they surrounded the fence pleading with Jill for a quote before she went in. It didn't happen.
Len and Efren were denied entry, Jill and I got in, but we weren't allowed in the “courtroom.” I use this term loosely as nothing about it reminded me of a space where justice is honored. Rather, it was a cramped little office with white washed walls except for the one containing a cage that Andrew was kept in. The steel mesh had an opening about five feet off the floor through which Andrew could observe the hearing, but he had to stand the entire time. The interior of the building was under construction, the ceiling had no tiles and ancient insulation dropped asbestos at regular intervals. The hallway had no benches, only a couple of broken chairs, which we quickly commandeered. Only the judge, the attorneys, Michael Veassy of the American Consulate, and a witness could fit in the room when court was in session.
Jill and I spent many long hours together waiting for any news of what was going on inside. At various breaks in the proceedings Fernando and Mr. Veassy would brief us, Veassy recounting the testimony and Fernando explaining the significance.
As evening approached, I stepped outside to get some fresh air. Seeing me, the assembled media cried out for any scrap of information. I had nothing to tell them, but they had some news for me.
“Your security guy got arrested.”
“What are you saying?” I thought it a ploy until a Mexican reporter provided details. “Yah, I saw it go down, they were looking for the big guy, and when your security guy told 'em he left in a taxi, they arrested him.”
Noy good, I thought, “we're already down one, don't want to lose another.” I scanned the crowd for Len, nowhere to be found.
I went back inside to let Jill and Fernando know what was going on. The trial had adjourned for the day. We braved the gauntlet of reporters and walked back to Fernando’s office.
Once inside, Denise, a paralegal with the office let us in, then up some stairs stopping in front of a corner shelf filled with leather bound books. Denise reaches behind the book case, then put her shoulder to one side. Slowly the book case rotated out revealing a classically appointed wet bar and lounge within. Len, sitting alone at a booth, wine glass half full, looked as miserable as I’ve ever seen him.
“Phil, I didn’t do anything!”
“I’m just glad to see you; Debbie would have never forgiven me if I left you behind.” What happened?”
“Nothing happened! Efren and I decided to get some lunch, and this little Latina sits down with us, says she’s a reporter with the Zeta paper.”
“I’m sure that didn’t work on you guys, being on the job and all, didn’t buy you any drinks, did she?”
“We didn’t tell her anything, so she got frustrated after a while, which was kind of fun…” I smiled, picturing them enjoying the moment.
“So, she gets mad and leaves, we pay the bill and walk back to the courthouse, then we see her talking to some Fedrales, Efren gets it before I do, tells me to get back to Fernando’s office ASAP.”
“Good advice, you took it of course.”
“I protested a little, but he convinced me, you know the whole language thing and all.”
“Anyway, he comes back to the office and tells me they told him that chick said I put my hand on her leg; that’s a lie, Phil.”
“I know, Len. So, where’s Efren?”
“He said the cops were going to see if she wanted to press charges, since it was me, they were after, Fernando left me in this safe room and Efren went outside to see if they’d come back.”
Denise, who’d been listening with Jill at the bar, walks over and tells us, “They pushed Efren hard on where you were, I heard him say he put you in a taxi headed for the border. Next thing I know they’re arresting him.”
Jill makes her way over to the booth sitting down next to Len, “It’ll be alright; we’ll get him out, right Denise?”
“Of course, I’m sure Mr. Benitez is working on it as we speak, I’ll check with him.”
“I’m coming with you.”
I followed Denise back through the bookcase, and as we pushed it closed, I noticed Jill giving Len a tender pat on the shoulder.
Fernando was on the phone, doing all the talking in Spanish. He signaled for us to sit down, and Denise to interpret, “He’s talking to one of our, what do you say? Ah, ‘people’ who make the rounds for us at night. We’re trying to get bail for him, you know the fine amount.”
I really didn’t know, but it sounded good.
Fernando hung up with “gracias,” and turned to me. “I got ahold of the bailiff, he’s a friend of mine, and he thinks $300.00 ought to do it, we got somebody going there now.”
“You got courts open this time of night?”
“Sure, you know a bail officer, just got to know how to get ahold of her.”
Fernando’s lips creased enough of a smile for me to appreciate the skill level of my Mexican colleague. Extra-judicial methodology is a talent I admire.
“Since this is one of my people, at least let me pay the fine. After all, they let themselves get set up for this.”
“No, no, can’t do that, there’s more to this than you know. The same reporter has been trying to interview me. I kept putting her off; you know it’s a political thing. I represented the Mayor of Tijuana on gun charges, he had over a thousand firearms and 10,000 rounds of ammunition at his hacienda, and you’re only allowed three. I eventually walked him on a search warrant issue. Anyway, Zeta didn’t like it, they think the Mayor’s business partner murdered their founder, they got a grudge. So, they were coming after me, you know, my people, anyway they could.”
“Wow,” I thought. “That’s putting yourself out there, isn’t it?”
“I don’t know, I just did my job, they’re making it personal. It’s the cost of doing business here.” Fernando shrugged, like no big deal.
“Zeta’s left wing too, they’ve been running editorials about Andrew’s case, it’s time to stand up to the bully to the north, that sort of thing.”
I tried to process it all, but soon returned to more immediate concerns. “So, you going to get Efren out tonight?”
“Sure, no problem she’s reliable, he should be out in an hour or so, but the trick is getting Len out of here. They’ll be looking for him.”
“I’m sure you got a plan, been here, done this before?”
“Yeah, well as you know every case is different, but we have our ways. Denise, why don’t you take Len to the border. Have him lie down in the back, drop him off at the place to walk over. You can drive Jill, they’ll probably be watching your car, you know.”
“I got it, we’re the decoy, but what about Efren?”
“That pastor guy,” Fernando looks to Denise, “Luis?”
“Right, he said he’d do anything to help, I’ll give him a call.” Denise rises leaving the office.
“She’s going to be a lawyer soon, I recommended her for The Bar, that’s how you get licensed here.”
“She’d be a sure thing over the border, women are about half the laws school grads these days.”
“Really, we got a way’s to go, it’s still a man’s world here, a lot of judges don’t take women lawyers seriously.”
Fernando and I spend another ten minutes chit-chatting, trying to play it cool until the phone rings. Fernando answers mid-ring. More Spanish, but Fernando winks so I know it’s good news.
I later learned that Efren spent more than six hours in a cell with twenty other prisoners, handcuffed to the bars so that he looked like he was about to be flogged. All the other prisoners were free to move about. Needless to say, he felt quite vulnerable. The local police continued to question him about Len’s whereabouts, but he never wavered, his story didn’t change.
When brought before a judge, he noticed his accuser was there to make her accusation stick. She now told an elaborate story about how both he and Len ran their hands down her leg while they were sitting across from her at lunch. The totality of her lies was more than Efren could bear. As a Ranger, Efren could keep his wits about him in the face of danger. This was a different threat, however, in a foreign arena that he did not understand. It was hard not to fear he would end up like Andrew, sitting in a Mexican prison with no end in sight.
When asked to speak, Efren began by declaring a traditional oath. “Upon the life of my infant son I tell you what this woman is saying is a lie. Why, Your Honor, did she first accuse my friend, and only when she found out he was gone did she accuse me? She talked with us for hours, and never once did she complain about us to anyone.”
Handcuffed behind his back, with the bailiff standing close by, Efren turned to face his accuser. “I can’t believe you would lie about me like this, what we talked about was my family. How my wife and son are Mexican citizens, and how I grew up in Monterey. I showed you pictures of my family, my baby boy, and now you come here and denounce my good name, my sacred honor, and try to take me away from my family with your lies.”
Efren’s presentation was consistent with the righteous indignation of an innocent man. The judge was clearly moved, but with plenty of other cases to decide that night, she’d heard enough. Bail was set at three hundred dollars to be forfeited upon release.
Returning to the present, Fernando hung up telling me, “He’ll be out in an hour, guess he actually got in front of a judge. The fine’s been paid.”
Denise returns to the chair next to me, “Pastor Luis will be there in half an hour to pick him up and take him across the border. Where should we drop him off?”
“There’s a Jack-In-The-Box just on the other side right where the railroad tracks cross over.” My border expertise finally came in handy. “Sounds like we got a plan, let’s make it work.”
We returned to the bar to find Jill holding Len’s hands across the table and saying a prayer over him. We waited an awkward moment for the “amen.”
Fernando laid the plan out for them. Jill liked being the decoy, Len liked making a run for the border.
“We’ve got a back exit into an alley off the street. Phil, you walk out with Jill, and as soon as you get to the car Denise will pull out in front and take you to the border.”
“When we get to the ramp for the border crossing, I’ll flash the high beams, you go up the ramp and I’ll continue on to the walk across.”
I nodded indicating I would follow wherever she led.
Denise signaled for us to follow her to the back of the bar. There she pushed on the wall, sliding it sideways she created an opening leading to a circular marble staircase that twisted down into darkness.
“We call this the Harry Potter Staircase,” she quipped. I felt like I was following Emma Watson through Hogwarts. Reaching the top of the stairs I hesitated. The white marble stairs barely reflected the light from above, and there were no handrails. I thought about waiting for someone to turn on a light, but hearing Denise’s heels clicking down the steps, I was shamed into following her.
As my eyes adjusted, I could see we were in a parking garage. Denise opened the door to a VW Bug, moved the driver’s seat forward saying, “I think you can fit in there.” Len, getting in, squeezed himself into the back, his head just below the windows. Denise slapped the garage door opener and the night sky came into view. As Denise got in the Bug, Jill and I walked out looking for our rental.
All of my senses were on high alert, looking for trouble at every turn. If they were staking us out, this was our most vulnerable moment. The street was vacant, but for our car. We got in as Denise pulled out; starting up, we pulled in right behind her.
Following her through Tijuana traffic at night was a challenge. Finally, we approached the overpass filled with cars waiting to cross. Denise flashed her highbeams, we broke away.
Pulling in I had to swerve to the right to let a car backing down the overpass get past us. Unnerved, I recovered by remembering where I was, and that I’d seen many a maneuver like that on a Mexican highway. Safely up the ramp, we arrived at the back of the line. Experience told me about an hour to get to Customs. We were on the slow road home.
Then, there they were. Two Federales walking along the overpass, flashlights inspecting every car in line. I looked at Jill, no sign of panic, stoic as always. The Federales approached on either side, shining the light through the window I could see a smile forming at the edges of Jill’s lips. She wasn’t just enduring the moment; rather she relished the prospect of a triumph over Mexican law enforcement. What a gal.
Having inspected us in front, they turned their flashlights on the back seat, nothing there. No trunk in a SUV, they lingered, spoke in hushed tones, and moved on. We savored the moment in quiet gratitude as our thoughts turned to our friends, hoping they would fare as well.
The line moved better then I predicted, soon we were handing our passports to a U.S. Customs Agent.
“What was the purpose of your visit to Mexico?”
“We had an appearance in Mexican Federal Court in Tijuana,” I answered. He was looking at Jill’s passport.
“Yes, I recognize the name, I hope it goes well for you.”
“Thank you,” Jill replied as he returned our passports.
“You know, just last week we had a Mexican police officer come through, we found two firearms with ammunition. We just let him turn around and go back to Mexico.”
“Hardly seems fair, does it?” I said.
“No, it doesn’t,” he acknowledged. “Anyway, welcome to the United States, and please know how many of us are with you.” This was the nicest conversation I’d ever had at the border.
Winding our way through the serpentine gauntlet of center dividers and speed bumps installed since 9/11, we finally arrived on Interstate 5 going north, we were home. Taking the first exit we came to a stop across the street from Jack-In-The-Box.
It was after one in the morning, but the intersection was bustling with people. The electric trains were still running, carrying people back and forth over the border, others had walked over; many of whom carried luggage. The Jack-In-The-Box was lit up and the parking lot was jammed. Pulling in, we caught a break, someone leaving gave us a spot in front. Then I saw Len, all six foot three and two hundred eighty pounds of him, the tough old gum shoe even smiled at me. I jumped out, ran to my old friend throwing my arms around him when I arrived. Under normal circumstances I would have embarrassed him, not tonight. Back in the good old U.S. of A., Len was one happy patriot.
Len’s passage had been uneventful. “Denise dropped me off at the footbridge crossing, I had no trouble getting in line for customs. When I got there, they didn’t like that I didn’t have a passport, but when I showed them my retired Oxnard Detective’s badge, they let me right through. Sure, is one great country, isn’t it Phil?”
I had to smile at that one, “You bet, Len. At times like these we appreciate it more than ever.”
Only Efren was missing. He had started for the border before Len, so he should have made it by now; I had envisioned a triumphant reunion, yet we remained one man down. My cell service restored crossing the border, I called him, but all I got was his recording. It occurred to me that we might be in for a very long night. Having not eaten all day, even a Jumbo Jack looked good, I went inside to order. Then, I made the obligatory call to Rose. The rule had always been that upon crossing the border I would let her know I made it safely. I was very late, but she knew better than to worry about me.
I woke her, “Where have you been?”
“Well, it’s a long story, and it’s not over yet.”
“I’m listening…” And so, I gave her as much as I could in the moment. I could see her shaking her head as she admonished me about my reckless friends and my own need to “flirt with danger.”
“One of these days you’re not going to get away with it, you know,” she lovingly scolded me.
“But not today.”
“Maybe for you, but your friend Efren is still not there, how long are you going to wait for him?”
“As long as it takes, my dear.”
“Of course, you are, and if he doesn’t show up, you’ll probably go back in looking for him, won’t you?”
“Ahhhh, maybe, but that’s not going to happen, he’ll be here,” I assured myself.
“Let Fernando handle it; you don’t even speak the language.”
“I guess you have a point there, I think he’ll be here, not to worry.”
“I gave that up long ago.”
“Love you.”
“Love you, too.”
Our conversation over, I sat down to a burger and fries. Quickly consumed, I headed outside to check on Jill. Then there he was, in a car driven by Pastor Luis. Efren smiled, no longer the soldier on duty, he jumped out grabbing my hand, following up with a chest bump.
“Where have you been?”
“Luis didn’t want to let go of me, so we drove across the border. I was afraid you might’ve left by now,” he said with relief.
“No, that wasn’t going to happen.”
Tears formed that I hoped could not be seen in the dark. Efren came in again, pounding my back with his powerful hands.
Efren was out, he was safe. We all made it out. Mission accomplished.
The four of us huddled in a circle. We didn’t want to let go of one another. We ended with a prayer of gratitude for ourselves, and a new petition for the one we left behind.
…..
Andrew was coming up on four months of incarceration. As the legal proceedings dragged on frustration turned into anger north of the border. All of the major news outlets were following the story and Jill would often do multiple interviews a day. Radio commentator Glenn Beck did a daily segment always ending with a count on the days he had been wrongfully imprisoned. Fox News commentators daily called for his release and increasingly cast blame upon the Obama Administration for not pressuring, or even sanctioning Mexico for his continued detention. I confronted this position when I did an interview on Lou Dobbs show not long after our return from Mexico. I was aware that Dobbs had strong anti-immigration views, but I truly believed the interview would be about the legal proceedings, and did not anticipate it would devolve into a demand that I label the entire Mexican legal system as corrupt, or express outrage that President Obama, “as the Commander and Chief,” had not yet called the President of Mexico demanding Andrew’s release. Fernando had counseled both Jill and me about the danger of inflaming nationalist sentiments in Mexico, and the perception that the United States could bully Mexico into releasing an American citizen without first adjudicating the case in a Mexican court. Eventually, I was forced to explain, “I have a client in front of a judge in the Mexican judicial system, and that man is going to decide Andrew’s fate, and I have to respect that, because that is how this case will be decided.”
My interview with Lou Dobbs ended acrimoniously. I wasn’t about to say anything that might hurt Andrew’s chances in court. When Lou Dobbs called to have me on the show again, I didn’t return the call.
Jill faced far greater challenges regarding individuals and various interest groups seeking to exploit Andrew’s circumstances for political or financial reasons. Various “influential” people in Mexico could “speak to the right people” and secure his release for an appropriate fee. Even “witches” claiming super natural powers sought Jill out, which she particularly found offensive. Harder to discern were self-described passionate supporters of Andrew who wanted to raise money on his behalf, or organize a protest against Mexico. Jill, as always, held to a strict ethical standard consistent with her Christian beliefs. In a correspondence to one such group she told them:
Please know I respect your impassioned support of my son Sergeant Andrew Tahmooressi. [But], comments that may be perceived by Mexican press as offensive to Mexico’s dignity, and any inference that I either support those comments or the organization… could have a detrimental effect on our goal of having Andrew released as soon as possible… So, to reiterate, please do not associate me with any of your comments or activities… Peaceful, non-obstructive support is appreciated, yet I do not endorse any activity that collects money for events.
Of course, many fine people did offer their support in in thoughtful and meaningful ways. “Free Sergeant Tahmooressi,” signs appeared on billboards, T-Shirts and in small business windows throughout the nation. Jill rode in a “Free Andrew Tahmooressi” motorcycle rally on Independence Day in Florida, and more than 75,000 people followed daily updates posted on a Facebook page set up by volunteers. Over 100,000 people signed a petition on the White House website promising a response when that many signatures were obtained. Unfortunately, the Obama Adminstration took three months to respond, and the response was tepid at best. Diplomatic language such as “… our goal is to see that Mr. Tahmooressi is treated fairly,” and [M]exican authorities have been very willing to engage on this issue,” only added to the perception that the Commander in Chief did not care about a Marine who had honorably served his country.
Various people of prominence, politicians and celebrities also offered their support. The Freedom Alliance led by Col. Oliver North made a donation of $10,000.00 to be used for legal fees, talk show host Montel Williams provided public relations services, and former Energy Secretary in the Clinton Adminstration and New Mexico Governor Bill Richardson through his Center for Global Engagement provided reports on diplomatic efforts that were being made. Congresswoman Debbie Wasserman Schultz, the Tahmooressi’s local representative in Florida was an early and consistent advocate for Andrew, and then later Congressmen Duncan Hunter and Ed Royce of California aggressively pushed the Obama Administration to take a stronger position. Ultimately, The Subcommittee for the Western Hemisphere chaired by Congressman Royce scheduled a hearing on the matter for October 1, 2014. Both Jill and I were hopeful that Andrew would be released before the hearing.
On September 9, 2014 I had once again escorted Jill for a scheduled hearing in Tijuana. Having already cross examined the Mexican Border Guards, Fernando subpoenaed the video surveillance recordings to see if their testimony lined up with the video. It had taken months to get the recordings, as the Mexican Border Officials ignored the subpoena. Finally, the judge issued an arrest warrant for the custodian of records if the video was not provided. On September 9, the judge, prosecutor and Fernando spent more than twelve hours watching the video. Jill and I once again waited in the hallway to receive a report on the proceedings. It was after nine o’clock before a tired, but delighted Fernando Benitez came to us and reported, “the video completely contradicts the version of the facts given by the border guards. I made a request to re-examine them, but the prosecutor said they had hired their own lawyers, who advised them not to testify again. This alone, may be enough for the judge to dismiss the case.”
This was a special moment between Fernando and me, as it was apparent that his skill and courage had brought about this result. Fernando had put himself personally at risk simply by taking on Andrew’s case, and now he had taken down the Federales. I knew how it felt, the elation of proving a man’s innocence by catching his accusers in a lie, but also the underlying prospect of retribution for embarrassing those in power.
It was not to be however, despite the strength of our case in court, the judge took no immediate action. The Congressional hearing went ahead as scheduled, and Jill once again acquitted herself beautifully. Her opening statement was heart wrenching as she went with a theme of “memorable quotes from my high achieving son.” These included, “God nudged me to join the military. I’ll be enlisting in the Marines. We just got hit with an IED. I’ve been arrested (in Mexico) and I’m not going to make it through the night. There are hit men in the cell with me and they’ve told me their going to kill me. Mom, I tried to kill myself because the guards and the inmates were going to rape, torture and eventually execute me…” By the time she was finished Jill owned everyone in the committee room. The remainder of the hearing was typical committee theater provided by Members of Congress seeking political points. None of them came close to the sincere and thoughtful presentation Jill provided.
Not long after the hearing I received a call from Fernando, “Phil, the judge has appointed a psychiatrist to confirm Andrew’s PTSD diagnosis.” I could tell Fernando was excited about this development, but I didn’t get it, “Fernando, the jails of the United States are filled with mental health patients, the largest mental health facility in the world is in the Los Angeles County Jail. So what if he has PTSD, its not a defense here. I’ve represented many a veteran with PTSD and it changes nothing for them.”
“It’s a defense in Mexico, we signed off on international human rights treaties that the United States refused to participate in. One of them calls for the humane treatment of inmates with a diagnosed mental illness, and our constitution requires us to provide treatment and rehabilitation for them.”
“I still don’t see the relevance…”
“You see, we don’t have veterans suffering from combat related PTSD, so we have no protocols for treating the illness. If the psychiatrist confirms his PTSD he will have to be released on human rights grounds, so he can receive treatment.”
“Wow, the perfect diplomatic solution. No need to make a finding on guilt or innocence, just a grant of mercy, pointing out the benevolence of the Mexican criminal justice system.”
“Exactly, I figure he should have a report in about a month.”
“Good, because Jill tells me Andrew’s not doing very well. He told her, ‘I’m surrounded by evil in here,’ things like that, similar to what he was saying when he attempted suicide. You should let the judge know, might speed up the process; that would not go over well north of the border. We’ve already got Congressmen calling for sanctions and certain groups organizing boycotts and protests at the border.”
“I know, things are getting hot here also, I’m getting my fair share of abuse, it gets old after a while.” I knew Fernando was down playing the level of stress he was under, threats had been made against him, and of course, he couldn’t rely on law enforcement for protection. When we hung up the phone, I said a prayer for my new found friend and his family.
Fernando and I decided it would be a good idea to leak out as much of the PTSD angle as possible. Letting the press know a resolution might be coming soon would calm tensions in the U.S. and prepare Mexico for Andrew’s possible release. I called Dan Gallo of Fox News. Dan was the producer assigned to the Tahmooressi story and they had been the first to pick it up, and the most supportive throughout. Due to their support, I had promised Dan I would give him the scoop when we learned Andrew would be released.
So, I did an opinion piece for foxnews.com laying out the reasons I thought Andrew should be released concluding with:
I strongly believe that within the next four weeks U.S. Marine Sgt. Andrew Tahmooressi will be released from El Hongo Federal Prison in Mexico and able to walk on American soil again.
Fernando was sure Andrew would be released; he just didn’t know when the order would come out. He traveled to San Diego to meet with Jill and me so he could brief us in person. Jill was staying in the Westgate Hotel, and when Bill Richardson learned she was there, he had her room upgraded to the Presidential Suite.
We found out that Fernando had recently flown to Mexico City to personally meet with the Attorney General, “…and they are no longer opposing Andrew’s release. They will be submitting the matter on the record and presenting no evidence in opposition. Once they formally file their non-opposition the judge will make a final ruling.”
“How long do you think that will take, if we were on this side of the border, he would be in court the next day, and the judge would just rule from the bench.”
“I know Phil, but we do everything in writing, so it has to be filed and ruled upon, the process is archaic, that’s why we’re changing it.”
A strong knock from the door interrupts our conversation. I look to Jill, “are you expecting anyone?”
“No, not that I know of.”
Fernando looks concerned, telling us, “we can’t let any of this out yet, it could jeopardize everything if this hits the media before the judge officially makes a ruling.”
“Alright, I’ll answer the door and get rid of whoever it is, and you guys just keep talking.”
As I head for the door, I hear a stronger effort on the other side. I open the door to see Governor Richardson in coat and tie before me.
“I see Mr. Benitez is hear, mind if I come in and participate in the briefing?”
“I’m sorry, this is a confidential attorney client conversation, no one but the lawyers and Mrs. Tahmooressi can be in the room right now.” Richardson is obviously not a man use to being told no, he proceeds to give the “Do you know who I am speech,” and a description of his current involvement in the matter. He steps forward expecting me to yield, I do not.
“I’m really sorry sir, but I can’t let you in, perhaps you can come back in half an hour, and we will tell you what we can at that time.”
Richardson is hot now, but he knows better than to press the issue. Eventually, he backs away and tells me he’ll come back in half an hour with the “rest of the team.”
Returning, Jill asks, “who was that?”
Bill Richardson, he’s not very happy with me right now, I wouldn’t let him in.”
Both Jill and Fernando chuckle at the this, with Fernando adding, “that’s the way it’s got to be, we don’t need any politicians screwing this up right now.”
“I told him to come back in half an hour, and that you would brief him and ‘his team,’ then.”
A half hour passes quickly as we discuss how much we can tell them. Fernando is reticent about telling them much of anything, but Jill points out, “Governor Richardson is providing a private plane to take us back to Florida, he needs to know when to have it ready. The plan is to fly us out of Brown Airfield just over the Otay Mesa border crossing.”
“It seems to me Fernando, we believe his release is imminent, but it could be a few more days. If we tell them that, they’ll be ready for anything.”
“My concern is if they tell that to the press, and it gets out in Mexico, we’ll have a big backlash. They might even protest at the border, block off the streets. For his own security, we need to keep a lid on this. The other thing is, who’s going to pick him up at El Hongo?”
“Mr. Veasy said they can help with that; they’ll pick him up and take him over the border. I trust him, he’s been nothing but attentive and professional.” Jill never ceased to impress me, despite the excitement of this long hoped for moment, she still made decisions with the acumen of a health care professional looking out for a patient.
“Okay, so Fernando you do the talking, tell them as little as you think they need to know, without any of the details as to how you got it done.”
Fernando smiles at this and nods “yes,” just as the we hear another knock at the door.
It’s quite a crew assembled outside; I shake hands with each of them at the door. Governor Richardson with two assistants, Juan Massey and a young lady who only introduces herself as “Mary,” Jonathan Franks who describes himself as a publicist, and Congressmen Matt Salmon and Ed Royce.
Fernando is masterful in his presentation. He’s expert at continuing to speak while saying very little if anything, new. When the questions come, he politely pleads ignorance, and restates our official position. “It could be any day now, it’s entirely within the judge’s discretion. Anymore external pressure or press about what he is going too, or should do, only jeopardizes the outcome.” He concludes with an admonition, “it is critically important that no one tip the press off until Andrew is safely over the border. Just like your country we have certain nationalist sentiments that will not like this outcome, if given enough time to organize, they may show up at the border. Andrew’s safe return must be our top priority.” Everyone present agrees, “nothing is more important than bringing Andrew home safely.”
A sense of unity of purpose touches everyone present. I am compelled to do something I don’t think I’ve ever done before, say a prayer in a secular setting with people I don’t even know. We are seated in a circle, so I ask; “I’d like to say a prayer, perhaps if we just stand, maybe hold hands; and I’ll lead us.” Not everyone is comfortable with my request, but I see Jill is delighted. Just as we get to our feet and clasp hands with the person next to us, Mary falls to her knees. I am moved, to say the least.
“Dear lord we say a prayer for Andrew, it has been a long and difficult struggle, but you have allowed us to see the victory before us. Lord we pray that you keep Andrew safe, he has suffered too much Lord, let him suffer no more, and we pray for our judge, that he be a good, decent, and caring man intent on doing justice. May he rightly discern the law and release Andrew to his family, friends and his country. We ask all this in Jesus’ name, amen.”
The next day Jill and me go to a Padre game, their stadium was almost next door to the hotel. It was a typically beautiful day, like most in San Diego, but our attention was somewhere other than the game. It was like waiting for a jury verdict, you’ve done the best you can, you know there’s going to be a resolution of some sort soon, but you don’t know when it will be, and you can’t do anything else to influence it.
After the game I let Jill know I would be returning to my office in Ventura County. I had other clients, work piled up, and it made no difference if I was there or not. If I got enough advance notice I might try and make the drive to Brown Airfield for the celebratory moment, but I knew that was unlikely. My satisfaction would come from Fernando, who when he left San Diego told me, “Phil, you’ll be my first call.”
I spoke to Fernando several times over the next few days, that’s what lawyer under stress do, we engage in speculation as to why it’s taking so long, and what it is the judge must be doing. Then I got the call, “He’ll be released today, in about two hours. I’ve got a copy of the order, he did go with the humanitarian grounds, but he also laid out facts the way we presented them. The prosecution had no objection to the dismissal of the charges, his case is dismissed.”
“That’s known as total victory Fernando, well done my brother, well done.”
“It’ll probably take about three hours to get him to the border. It’s two o’clock now, so let’s say you can start letting the press know, about five o’clock.”
“Got it, will do.”
The second I got off the phone with Fernando I let out a victory yelp that startles everyone in the office, who had never heard it before. I was as excited about the result as I had ever been before, hard fought and hard won. I thought of making the drive to Brown’s Airfield, but with L.A. traffic there was no way I’d get there in time. So, I just sat back in my chair, savored the moment, and said a little prayer of thanks.
The moment was soon interrupted by my cell phone, the Display says Dan Gallo, Fox News. I hesitate, I so much want to tell him, they deserve to know first, but I’ve made a commitment.
“Hi Dan, what’s going on?”
“You tell me Phil, AP just reported that the judge has dismissed the case and ordered his release. They have a whole article up on it, Governor Richardson, of the Richardson Center will be holding a press conference on his release at Brown Airfield in a couple hours, then flying by private jet home to Florida.”
It’s called “chumping,” when some naïve new comer is taken advantage of, by the veterans of the street. In a word, I know I’ve been “chumped.”
“Ahhh, I can neither confirm or deny that report Dan, we had an understanding…”
“That’s right Phil, we did, you promised we’d get it first…”
“Sorry, Dan.”
“I gotta go, follow up on an AP Story.”
The phone disconnects, my joy in the moment diminished by the treachery of allies, and my own naivete.
My next move was to call Fernando, who was as surprised and disappointed as me to hear about the AP story. Fortunately, it took awhile for it to get picked up in Mexico, so Andrew made it over the border without incident.
I would later see photographs of Andrew and Jill at Brown Airfield, along with Governor Richardson, Montel Williams, Jonathan Franks, and Representatives Royce and Salmon. All of the stories about Andrew’s release gave the impression that it was the result of some diplomatic coup orchestrated by celebrities and politicians. Nothing could be farther from the truth. Andrew’s dismissal of all charges, that could have landed him in a Mexican prison for twenty-one years, was hard fought and won in a courtroom before a Mexican judge that considered all of the evidence. The cross examination of the border officials, and their subsequent impeachment by the border video, so severe as to cause them to refuse to provide further testimony is what won the day. Andrew never intended to enter Mexico with firearms in his possession, his entry was a mistake, largely the fault of poor freeway signage, and he attempted to turn around when he got to the border. The truth matters, but it takes great skill and courage to present it in court, particularly in Mexico, based on everything I observed.
There is no doubt the media firestorm and political posturing created pressure on the Mexican government to release Andrew, but in the same vain it caused internal pressure not to release him. Resentment over treatment of Mexican nationals in U.S. custody inflamed nationalist sentiments that were passionately opposed to his release. We experienced the depths of that resentment during our fortuitous and skillful escape from Mexico in the middle of the night.
Despite all those who sought to take some credit for “bringing our Marine home,” there are only two people who deserve it. The first is Fernando Benitez, who with great skill and compassion, successfully defended an innocent man, and did so at substantial personal risk to himself and his family. The second, and most significant is Jill Tahmooressi, who put her life on hold for seven months and did whatever it took to rescue her child. She did so with amazing strength and dedication, but more than that, she called upon the Holy Spirit in every decision she made. In times of peril, there is no greater wisdom then that which comes to us from Heaven above.