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BISBEE — An effort by state legislators to tighten up a voter-approved law that denies bond for illegal immigrants accused of serious crimes is likely to have little real impact in Cochise County, members of the local judicial system say.
The House approved a Republican bill on Wednesday that says that courts need only to find probable cause — a lower threshold than the current burden of proof — in deciding if criminal defendants are illegal immigrants who should be denied bail.
The bill also requires judges to consider certain evidence, such as defendants’ admissions, immigration holds and hearsay statements, as proof that a person entered the U.S. illegally.
Lawmakers hope the changes will result in stricter enforcement of a constitutional amendment that was approved overwhelmingly by voters last November as Proposition 100.
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However, local judges say the proposed changes could be difficult to implement due to conflicts with defendants’ constitutional rights. And defense attorneys and prosecutors agree that since most illegal immigrants who are arrested in Cochise County already can’t afford to post bond, the changes are likely to have little tangible effect on keeping defendants in custody.
The Arizona Constitution guarantees criminal defendants, with exceptions for certain offenders, a right of bail. Proposition 100, now on the books as ARS 13-3961, added an additional exception for illegal immigrants charged with class 1, 2, 3 and 4 felony offenses or aggravated DUI.
The constitution also says that, in order to hold a defendant without bond, a judge must decide “if the proof is evident or the presumption is great” that the defendant committed the alleged offense. The same standard is used at no-bond hearings to determine whether the person entered the U.S. illegally.
James Conlogue, the Cochise County Superior Court judge who heard the first series of local ARS 13-3961 cases, believes the “proof evident/presumption great” rule could derail efforts to enforce the lower probable cause standard.
“All this tinkering to introduce probable cause does not square with the constitutional requirements,” Conlogue said.
“To me, it’s clear that you have to follow the constitution, and I just don’t know how you can get around that.”
The proof evident/presumption great standard, which lies somewhere between probable cause and proof beyond a reasonable doubt, has been an elusive concept for many judicial officials, including David Morales, justice of the peace at Justice Court 1 in Bisbee, who recently took over the no-bond hearings from Conlogue.
Morales says that on one hand, he would prefer the more familiar probable cause standard, as well as specific rules about which evidence can be used to meet it.
“The more clarification we get, the better off we’re going to be,” he said.
Still, like Conlogue, Morales is concerned that lowering the burden of proof to probable cause would conflict with the state constitution.
Cochise County Attorney Ed Rheinheimer said he hasn’t looked into the constitutional ramifications of the House bill, but he acknowledged a probable cause standard would make no-bond hearings easier for prosecutors.
The chief justice of the Arizona Supreme Court, Ruth McGregor, has mandated that the hearings be held within 24 hours of a defendant’s initial appearance, and Rheinheimer’s deputies are hard-pressed to gather enough evidence to satisfy the current standard in such a short period of time, he said.
Even so, he added, it’s important for the public to understand that the hearings are not all-or-nothing propositions. If prosecutors can’t convince a judge to deny bond to a foreign national, that doesn’t mean they’ll be set free.
The judge will simply order that the defendant be held on bond.
And very few illegal immigrants can afford to post bond, Rheinheimer said.
Cochise County Public Defender Mark Suagee agreed.
“The fact of the matter is, most of the time, people who are not citizens don’t get a bond they can post in the first place,” Suagee said.
“Are we somehow benefiting the public (by holding them without bond)? I really don’t think so.”
According to court records, since Cochise County began enforcing ARS 13-3961 on May 1, three Mexican nationals have been ordered held without bond.
When prosecutors could not show that another five defendants had entered the U.S. illegally, they were held at the county jail with bond amounts set between $10,000 and $25,000.
None of the five have managed to post bond and all remain in custody as they await resolution of their cases.
Time and money
The legislative effort to strengthen enforcement of ARS 13-3961 was at least partly inspired by a pair of recent events in Maricopa County.
In March, an illegal immigrant who had been arrested and then released on bail for kidnapping and assaulting his ex-girlfriend allegedly killed his cousin in Mesa after discovering the man with his ex-girlfriend.
Then in April, e-mails surfaced in the media showing that a Maricopa County court official, in response to pending ARS 13-3961 implementation, told staff last November to stop asking defendants about their immigration status.
Rheinheimer and Suagee said they had not seen similar problems in Cochise County. Rheinheimer could recall only two cases in the past several years where he felt that a judge had set a low bond for an illegal immigrant, while Suagee believes that local judges in general tend to set excessively high bonds.
“Something unusual happens in Maricopa County and the rest of the state has to change direction to accommodate what happens there,” Rheinheimer said. “It’s all driven by Maricopa County.”
And what’s right for Maricopa County isn’t necessarily right for Cochise County, Suagee said.
“Because we’re a small, rural county without the resources that larger counties have, it’s likely to become more expensive for us to do (the hearings),” he said.
Already, local officials say, a law that is having little measurable effect is costing the county judicial system both time and money.
The voters overwhelmingly approved Proposition 100, and so the county Attorney’s Office is obliged to enforce the law, Rheinheimer said.
But the time his deputy prosecutors spend at no-bond hearings is time they could be spending on more important cases.
“It has been difficult for this office, the defense and the courts to have people available for these hearings,” he said.
“This has come at a high cost.”
Suagee said his office has been trying to do its part to improve the county court system’s poor disposition rate on felony cases — a problem that resulted in a reprimand last year from the Arizona Supreme Court.
With the added responsibility of the no-bond hearings, he said, it becomes more difficult for defense attorneys to help resolve cases quickly and address a very real local judicial issue.
“People think they’re addressing a law and order need, but I think it’s purely political,” he said of Prop. 100 and the no-bond law. “The result is a questionable outcome from more time and expense.”
The perspective from Phoenix
The House passed the new ARS 13-3961 guidelines by a 34-22 vote on Wednesday.
The measure (SB1265) now goes to the Senate for consideration.
Republican Rep. Russell Pearce of Mesa, who proposed the changes, said the law would assist courts in carrying out the wishes of voters.
“(Voters) think it is silly that you are in this country illegally, commit a serious felony and then should be out on the street,” Pearce told The Associated Press.
Democratic Rep. Tom Prezelski of Tucson, an opponent of the bill, said the proposal would loosen the standard for determining whether a person could be denied bail under the voter-approved law and that it could have adverse effects on innocent people.
“We are going to see this bite us,” Prezelski said.
A day in the life of an ARS 13-3961 hearing
At 8 a.m. Tuesday, six defendants arrested in three different alleged marijuana transportation incidents along Interstate 10 were brought to Justice Court 1 in Bisbee for ARS 13-3961-related hearings.
The first to appear before Judge David Morales was a young woman named Patricia Ledezma-Hernandez, who had been arrested near Benson and charged with possessing and transporting marijuana for sale.
The arresting officer, however, did not show up at the hearing and therefore could not testify as to why he or she believed Ledezma-Hernandez had entered the country illegally. “We have no evidence to present whatsoever,” Deputy County Attorney David Pardee told the judge.
And so Morales ordered that Ledezma-Hernandez be held at the county jail with bond set at $25,000.
Next up were three men named Torres, Hernandez and Ochoa-Castillo, who also had been arrested near Benson. This time, Pardee had evidence: The arresting Arizona Department of Public Safety officer was on hand to testify.
But now there was a problem with the defense. Kelly Smith, a lawyer from the Public Defender’s Office who had been assigned to represent all the defendants at the hearing, said she had already been appointed the attorney of record for Ochoa-Castillo.
When she arrived at the courtroom, Smith learned the three co-defendants had each given statements to the DPS officer. Fearing they might have incriminated each other in their statements, Smith told the judge that it could create a conflict of interest if she represented all three co-defendants at the hearing.
Pardee objected to a continuance, but Morales allowed Smith’s request to postpone the hearing until Thursday, when each defendant could be represented individually.
Morales ordered that the three men be held at the jail without bond until the Thursday hearing.
Finally, two men named Lazano and Ochoa stood up. Morales noted that their case had come from the Bowie area, but there was no arresting officer on hand and neither Smith nor Pardee knew anything about them.
Had Lazano and Ochoa understood their rights, they might have demanded that their hearing be held right then and there. With no evidence against them, the judge might have had to order them held on bond.
Instead, they listened without protest when Morales allowed their hearing to be continued until the following day.
In the end, there was no hearing — the county attorney decided not to press charges against Lazano and Ochoa.
In all, seven county employees participated in Tuesday’s hearing: the judge, his clerk, the prosecutor, the defense attorney, a court interpreter and two jail guards. The state-employed DPS officer was there as well, having presumably made the 50-mile, one-way trip from Benson.
ARS 13-3961 no-bond hearings
• May 1- Ricardo Carillo-Mendez, hometown unknown, car theft. Bond set at $10,000. In jail. Entered plea deal on May 21. Sentencing date: June 18
• May 2 - Mario Yates-Moreno of Hermosillo, Sonora, Mexico. Transporting marijuana for sale. Bond set at $15,000. In jail. Entered plea deal on June 11. Sentencing date: July 2
• May 8 - Jose Alberto Chavez-Rojas of Mazatlan, Sinaloa, Mexico. Human smuggling. Held without bond. In jail, awaiting trial.
• May 10 - Luis Carlos Martinez, hometown unknown. Possessing marijuana for sale. Held without bond. In jail. Entered plea deal on June 11. Sentencing date: July 6
• May 29 - Esteban Castillejos-Zuniga, hometown unknown. Charges unknown. Bond set at $15,000. In jail.
• May 30 - Misael Ochoa-Montero, hometown unknown. Charges unknown. Held without bond. County Attorney declined prosecution. Released from jail June 6 to the Border Patrol.
• June 2 - Jose Luis Morrillo-Requego of Sonora, Mexico. Possession of marijuana, possession of marijuana for sale, transporting marijuana for sale. Bond set at $25,000. In jail.
• June 12 - Patricia Ledezma-Hernandez of Phoenix. Possession of marijuana, possession of marijuana for sale, transporting marijuana for sale. Bond set at $25,000. In jail.
SOURCE: Information gathered from the following Cochise County sources: County Attorney’s office, Legal Defender’s office, Public Defender’s office, Justice Court 1, Clerk of the Superior Court’s office, county jail.
The Associated Press contributed to this report. Herald/review reporter Jonathan Clark can be reached at 515-4693 or by e-mail at jonathan.clark@bisbeereview.net.
wait a cotton picking second wrote on Jun 17, 2007 9:32 PM: