In 2011, Ms. Fretes-Zarate, a citizen of Paraguay and a lawful resident of the United States with a five-year-old U.S.-born son, was convicted of simple assault on her former husband after a domestic violence arrest (she scratched his arm; he treated it with “cool paper towels”). The conviction put her at risk of deportation under the provisions of the draconian Illegal Immigration Reform and Immigrant Responsibility Act. She did not receive a jury trial because the courts view simple assault as a “petty offense” that is not jury-demandable. Knowing this rule, her court-appointed trial counsel did not ask for a jury trial. On appeal, her new court-appointed counsel argued that she should have been given a jury trial because deportation is a very serious punishment. A panel of the D.C. Court of Appeals avoided deciding whether she was entitled to a jury trial, ruling that because her trial counsel had not asked for one, the error, if any, was not “plain.”
In June 2012, we filed an amicus brief in support of Ms. Fretes-Zarate’s petition for rehearing, asking the court to rule that she had a constitutional right to a jury trial and that its denial was “plain error.” But in April 2013 the Court of Appeals denied rehearing.