Murder trial's key witness deported (Columbus Dispatch)

Murder trial's key witness deported
Prosecutor says he wasn't notified; suspect is freed

Wednesday, July 21, 2010 03:52 AM
BY JOHN FUTTY

THE COLUMBUS DISPATCH

Franklin County prosecutors have dropped an aggravated-murder charge against an East Side man because the key witness against him was deported to Mexico.

Homeland Security officials deported the witness without notifying the prosecutor's office, Prosecutor Ron O'Brien wrote in asking a Common Pleas Court judge to dismiss the case.

Jaime C. Gallegos, 20, of Stelzer Road, was released from the Franklin County jail Monday night after charges of aggravated murder and tampering with evidence were dropped.

He was one of two defendants indicted in the Christmas Eve shooting death of Miguel Martinez-Vargas, 22, whose bullet-riddled body was found in a car outside the El Gato Negro bar, 1024 Shady Lane Rd., on the East Side.

The case against the other defendant, Juan Mercado-Villanueva, 20, of Raphael Drive, was not affected by the deportation, O'Brien said yesterday. A different witness is available in that case.

But prosecutors couldn't prove their case against Gallegos without the testimony of Daniel Mercado, who was deported April 13, O'Brien said.

"The local Homeland Security office had been specifically advised by the gang-unit prosecutors assigned to this case that Mercado was the key witness in this case and had been assured that no action would be taken to deport Mercado without notice to the prosecutor's office," O'Brien wrote to the court.

"Nevertheless, at the last trial date, the assigned prosecutors learned Mercado had been deported to Mexico. Efforts by the prosecution to locate Mercado in Mexico and to temporarily return him to the United States to testify have been unsuccessful."

Homeland Security officials did not immediately respond to a series of e-mail questions about the decision.

Mercado, 25, was an illegal immigrant who failed to show up for sentencing after he was convicted in Franklin County Common Pleas Court of carrying a concealed weapon in December 2006. He was arrested on a warrant in the case during the investigation of the Martinez-Vargas slaying.

By the time of his arrest, Mercado was cooperating with investigators in the homicide case and was released on a recognizance bond. Prosecutors later learned that U.S. Immigration and Customs Enforcement agents picked up Mercado as he left the jail April1, O'Brien said.

Mercado was at the scene of the Martinez-Vargas shooting and was involved in the incident but was not the triggerman, he said.

When prosecutors sought a continuance in the case against Gallegos in May, his attorney filed an objection, saying that "the state failed to do the most elementary due diligence in securing a witness for trial."

Joy Marshall wrote that prosecutors failed to subpoena Mercado, should have known he was unlikely to be available for trial and should have charged him in the homicide.

O'Brien said yesterday that a subpoena was unnecessary because Mercado was a cooperating witness.

"He was working with us from Day One. His lawyer produced him for us on more than one occasion. He helped solve the case."

O'Brien said Mercado eventually would have been charged "with something" related to the killing in a negotiated plea agreement.

This isn't the first time that prosecutors have communicated with local Homeland Security officials about cases that were lost or weakened by the deportation of witnesses, he said.

"As you can see, that communication was not successful in preventing the deportation of a key witness in this homicide case, nor have we been advised of an effective method to prevent this in the future."