Catch as catch can
Working homicide for the last 20 years, Dallas Detective Jesse Briseno was all too familiar with the pattern -- a dead body, a thorough investigation, and an air-tight case, yet the prime suspect gets away with murder. Too often that murderer was a Mexican national living and killing in Dallas who headed straight for the border and vanished into a sanctuary of unenforced extradition treaties, bungling bureaucrats, and Mexican cops who just didn't give a damn. Too often, the case grew old and cold, buried in some dusty file drawer, long forgotten by everyone but the victim's family.
That's why in 1994, Briseno became a squad of one, originating the foreign prosecutions unit of the Dallas Police Department, which seeks cooperation of the Mexican government to prosecute in their country those of its citizens who murder in this one.
When Assistant District Attorney Stephani Hudgins first learned there was a chance that a murder suspect who had escaped trial in Dallas might be prosecuted in Mexico, she wasn't hopeful. Hudgins was haunted by the death of 21-month-old Briana Cisneros, who was killed by her babysitter Maricela Martinez. Hudgins had done everything in her power to prosecute Martinez and was frustrated in her efforts when, through purposeful indifference and bureaucratic design, the U.S. Immigration and Naturalization Service deported Martinez to Mexico. For more than three years, the photograph of the tiny child with black hair and a butter-melting smile had been pinned to the wall in Hudgins' office.
"I just wasn't real optimistic she would ever be convicted in Mexico," Hudgins says.
What Hudgins hadn't counted on was the sea change in Mexico's willingness to prosecute its citizens for murders committed in this country and the push by Texas Attorney General John Cornyn to forge relationships with Mexican officials and educate Texas law enforcement to alter its attitude toward pursuing those prosecutions.
Just two weeks ago, Briseno received word from Mexican authorities that Maricela Martinez had been tried for murder in Mexico City and had received a 50-year prison sentence. "I was elated by the verdict and surprised that she got so much time," Briseno says. "That speaks to the cooperation we are now getting from Mexico."
Yet the Martinez prosecution (featured in "Plugging the hole," May 28, 1998) is a textbook case of the governmental glitches and diplomatic debacles confronting law enforcement when it attempts to bring a foreign national to justice. It's also a rare case of well-intentioned bureaucrats who were willing to accept responsibility for their actions and work to prevent a similar tragedy.
On the morning of October 14, 1996, an ambulance brought 2-year-old Briana Cisneros to Parkland hospital's emergency room -- her skull fractured, her hemorrhaging massive, her death inevitable. Maricela Martinez, the girlfriend of Briana's father, had reluctantly agreed to care for the child that day, but no matter what she did, the child wouldn't stop crying. Then somewhere between 9:30 p.m. and 10 p.m., Martinez claimed, the child stood up in her highchair and fell just as Martinez grabbed for her. The baby's head hit the floor hard, and when Martinez saw blood, she called 911.
Dr. Janet Squires, a child-abuse specialist at Children's Medical Center, offered a different explanation. In court papers, she swore that Briana's extensive brain damage could only have been caused by a force "comparable to a child being thrown from a three-story building or being in a major car accident."
Martinez would later admit that she had been tired that morning and didn't really want to take care of the child. "I didn't love her," she told a detective, "but I didn't hate her either." She also changed her story, claiming at different times that the child didn't cry, and she didn't actually witness the fall or see any blood.
On November 4, 1996, Martinez was indicted for injury to a child rather than murder -- a common prosecutorial practice since both offenses carry the same range of punishment and injury to a child is easier to prove. The case was assigned to Hudgins, at that time a trial prosecutor in the district attorney's child-abuse section. "The case really touched my heart because the family was so devastated," she says. "The grandmother and father would come into my office with literally handfuls of photographs of this beautiful little girl."
From the prosecution's standpoint, the case had nothing but jury appeal: an innocent victim, a lying defendant, brutal injuries. "That was the biggest skull fracture that I ever encountered as an assistant DA," Hudgins says. Certainly the facts justified both a conviction and a stiff sentence.
But on March 20, 1997, Martinez's mother posted the $100,000 bond that had been set in her daughter's case. Rather than being set free, Martinez was delivered to the custody of local INS agents who sought to deport her to Mexico, claiming she had entered this country illegally. The immigration service seemed unconcerned that she still faced state criminal charges. "Our obligation to the taxpayer is to just get rid of them," INS spokesman Lynn Ligon told the Dallas Observer.
That is exactly what the INS did. On April 14, 1997, an immigration judge ordered Martinez deported. She was put on a bus headed for Nuevo Laredo, where she was released the next day.
"It got to be a revolving door," says Jeff Shaw, chief investigator with the Dallas County DA's Office. "INS would take them, and they were mandated to deport them. We didn't get a chance to prosecute them."
To the victim's family, it looked as if money had been paid and the defendant got away clean. Transportation was even provided, compliments of the U.S. government. "None of it made any sense," says Hudgins, who was left with no choice but to initiate extradition proceedings.
"But Mexico has a policy that they will not extradite their citizens for crimes committed abroad," says David Garza, chief of the foreign prosecutions unit with the Texas Attorney General's Office. "There is an extradition treaty, but it says that neither party is obligated to turn over its citizens unless there are exceptional circumstances, and basically Mexico never finds that those circumstances exist."
That refusal to extradite led to the belief among law enforcement officials that if a defendant made it to the border, there was nothing they could do. Yet beginning in the early '80s, the California attorney general became fed up with the number of fugitives he was losing to Mexico. He discovered a seldom-enforced provision within the Mexican Penal Code known as an "Article 4 prosecution," which enables authorities in Mexico to prosecute its citizens for crimes they commit in foreign countries. Not until 1994, under the administration of Attorney General Dan Morales, did Texas begin to avail itself of the law, even though it had been on the books since the 1930s.
But it has taken Cornyn to target these prosecutions, educating law enforcement about the requirements of Article 4, launching an Internet site identifying fugitives who have disappeared into Mexico, and forging contacts with Mexican prosecutors and police to help capture defendants on the run.
Even though Mexico will refuse to extradite its own citizens, it will convert the extradition request into an Article 4 proceeding and prosecute within Mexico. But for that to happen, U.S. authorities must request a provisional arrest warrant (often as part of the extradition proceeding) and had better know the whereabouts of the fugitive if they want the assistance of the Mexican police.
"It's all about relationships down there," Garza says. "They have to feel they can trust you. But once you establish that relationship, they will do anything for you. You've made a friend for life."
Detective Gary Lackman, then a deputy with the Dallas County Sheriff's Office fugitive division, has spent years developing contacts in Mexico. It was his job to get Maricela Martinez arrested in her native country, but first he had to find her. Piecing together her whereabouts from the victim's family and confidential sources, he learned she was living with her mother in Guanajuato, a small town in central Mexico. He then traveled to San Antonio and spoke with representatives of the Mexican Attorney General's Office, "selling them on the case," he says, by making it personal. "I showed them the gruesome photos of the child. It touched their hearts completely."
Two weeks later, in January 1998, Martinez was arrested in Mexico on charges of injury to a child. But for a Mexican federal magistrate, the offense wasn't serious enough to hold her, and he allowed her to post a $7,500 bond. "They didn't understand why she had not been indicted for murder if the child had died," Lackman says. So Hudgins went back to a Dallas County grand jury and had Martinez re-indicted for first-degree murder.
Of course, even an upgrade in charges wasn't enough to cause the Mexican government to extradite Martinez. Although the extradition request was denied on June 4, 1998, the Mexican Attorney General's Office commenced an Article 4 prosecution a week later. On July 7, 1998, Martinez was arrested and held without bond.
It was now Jesse Briseno's turn to get into the act and make the state's case on paper. He gathered the physical evidence of the crime, translated all the witness affidavits and police reports into Spanish, and had them properly certified and forwarded to Mexico. "There were no live witnesses who can be cross-examined," Briseno says. "It's all done there on sworn affidavits. Prosecutions like these wouldn't hold up in the U.S."
In Mexico, however, there is no right to confront your accuser, no right to a jury trial, no presumption of innocence. Absent these constitutional protections, fugitives crossing the Rio Grande might think twice if they knew Mexico was actively prosecuting its own citizens for crimes committed abroad. "We hope it will have a deterrent effect," says Lt. Ron Waldrop, the former head of the Dallas police homicide unit. "People will know there is no sanctuary just because they have crossed international borders."
On September 27, Martinez was tried and convicted of the murder of Briana Cisneros. She was sentenced to 50 years in the penitentiary and fined 65,000 pesos.
But it was an American legal system at cross-purposes with itself that allowed Martinez to slip through its cracks in the first place. As a result of the havoc and bad press created by her case, members of the Dallas INS and DA's office held a high-level meeting to ensure that the same situation would never happen again.
Now when an illegal immigrant posts bond on a serious felony charge -- murder, rape, robbery -- rather than deport them to Mexico, INS notifies the district attorney. "What we then do is file a motion with a judge to either raise the bond or hold the old bond insufficient because the person is a flight risk," says Jeff Shaw. "So far, it seems to be working."
Over the last three years, prosecutor Hudgins has made three moves within the DA's office, climbing its hierarchy from trial lawyer to administrator. And with each move she has only taken one case with her: the case of an innocent toddler who lost her life because she didn't stop crying. Beside each new desk, Hudgins has hung Briana's photograph, a painful reminder telling the prosecutor never to give up.
"I just couldn't let go of the case," Hudgins says. "Now, finally, I feel like Briana has gotten some justice."
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