Illegal Immigrants Held As Witnesses for Trial (Washington Post)

Illegal Immigrants Held As Witnesses for Trial

By Tom Jackman
Washington Post Staff Writer
Monday, September 22, 2008; Page B01

Five men have been sitting in the Fairfax County jail for nearly a month now, although none is charged with a crime. Rather, they might have witnessed a killing. Some of them.

The men are being held as witnesses after the fatal stabbing of Adulio Morales-Bonilla, 36, in Fairfax City last month. Everyone in the case -- the victim, the suspect, the witnesses -- was in this country illegally. Fairfax City police enlisted the help of U.S. Immigration and Customs Enforcement agents and had the witnesses detained.

But then ICE told police that the witnesses were going to waive deportation hearings and might be returned to their native Honduras within a week. Faced with the possible collapse of their case, police obtained "material witness" warrants against the men and had them jailed without bond, even though the trial might not occur for another year.

Legal experts and attorneys for the witnesses expressed outrage that the men were being held to secure their testimony.

"What are we, in Guantanamo?" asked Abbe Smith, a Georgetown University law professor and expert in criminal defense. "They are simply witnesses. They happened to be someplace where something happened. That should shock the conscience of any American citizen."

Fairfax prosecutors say that increasingly, immigrants who are in this country illegally -- from victims to witnesses to suspects -- are failing to show up for trial. And when the Morales-Bonilla slaying presented the same potential problem, said Fairfax Commonwealth's Attorney Raymond F. Morrogh, prosecutors turned to Virginia's material witness law and simply locked up the witnesses indefinitely.

"We've got to do everything we can," Morrogh said, "especially in a murder case, to make sure the victim's rights are protected."

Prosecutors in Virginia said that they rarely use material witness warrants but that when they do, the witnesses usually are released on bond. No one could recall a similar situation, but several said they thought that Morrogh had done the right thing.

"As a prosecutor, you never particularly want to have a witness who doesn't like you," said Arlington County Commonwealth's Attorney Richard E. Trodden. "But if they're telling you he's going out the door, you've got to do something."

Trodden and others said there is an alternative to holding the men in the Fairfax jail: custody or supervision by ICE. He said he hoped that ICE would realize "there's a greater good here" and not deport the men if they are released from jail.

Fairfax City Police Chief Rick Rappoport said police were trying to work with ICE on a compromise. Ernestine Fobbs, an ICE spokeswoman, could not discuss the Fairfax case but said that when illegal immigrants "are in our custody, we will work with the local law enforcement. But we can't hold them indefinitely."

Originally, six witnesses were detained. But defense attorney Michael J. Lindner persuaded Fairfax Circuit Court Judge Jane Marum Roush to release one of the witnesses, Luis A. Rodriguez, on Wednesday. Roush looked at the affidavit written by Fairfax City Detective Michael D. Boone and found that none of the six witnesses was identified as having any information about the case.

All the witnesses "were possibly inside the residence at the time of the murder," Boone wrote. "One of the occupants of the house was a witness to an argument between the victim and the defendant shortly before the murder occurred."

The defendant, Juan de Dios Morales, 37, of Fairfax City, "admitted killing the victim," Boone wrote. He is scheduled for a preliminary hearing on Oct. 27.

Roush dismissed the witness warrant against Rodriguez, who faces deportation proceedings but who might be eligible to be released on bond in that case. He has no criminal record and has been working in this country for several years, Lindner said.

"The idea that in this country," Lindner said after the hearing, "that someone could sit in jail for a year without being charged with a crime, that's just insane. And I don't think the U.S. Constitution permits it."

Attorneys for the five men said they will fight to get their clients released. At hearings on Thursday and Friday, Fairfax General District Court Judge Penney J. Azcarate said she would release two of the men on $1,000 bond, but they remain jailed.

Three are being held without bond, including Jorge A. Moreno Rincon. His attorney, Lavonda Graham Williams, said her client is not planning to leave the country and planned to contest deportation.

In the affidavit, Boone said an immigration agent told him that all six men had waived their rights to deportation hearings and would be deported in a week. That created the sense of urgency among police and prosecutors that something needed to be done before all of their witnesses were shipped out of the country.

Lindner and Williams said that their clients had not waived their deportation rights and that Boone was misinformed. Lindner and William Pickett, an attorney for another witness, said their clients had no information about the crime.

The deportation would not have been an issue had Fairfax City police not summoned ICE in the first place. Rappoport said detectives needed the agency's help in sorting out who might have been involved in the slaying and what their immigration status was. Defense attorneys believe that they were brought in to pressure the witnesses to cooperate.