Crime and no punishment

No matter what bleeding-heart notions lured them in the beginning, eventually those who toil at the business of crime and punishment tend to develop tough hides. But every now and then, a case makes its way through the criminal justice system that awakens outrage in the most scabbed-over heart.

Like the case of little Briana Cisneros.
At 10:10 a.m. on October 14, 1996, an ambulance arrived at the Parkland Hospital emergency room. Inside was Briana, a 21-month-old toddler, accompanied by the woman who had been taking care of her, an illegal immigrant named Maricela Martinez. According to police reports, the toddler had suffered an "acute head injury" resulting in a "skull fracture on the left side of the head, massive bleeding, retinal hemorrhaging, and...tissue swelling."

Martinez identified herself as the wife of Briana's father. Martinez said the toddler had fallen from a high chair, but the attending physician, Dr. Janet Squires, told investigators that the injuries were "consistent with [the child] being thrown against something with considerable force--force comparable to falling from a third-floor window or being in a major automobile accident."

She also said the wounds had been inflicted "30 to 60 minutes prior to [Briana's] being admitted to the hospital." In the stilted prose of police reports, officers predicted Briana's fate: "Doctor Squires states that death is probably inevitable."

The 24-year-old Martinez, a $5.50-an-hour food-service worker at Luby's in Plano, admitted that she had been "the sole caretaker of [Briana] between the hours of 8:00 a.m. until about 9:30 a.m." She was taken into custody on October 14--two days before Briana died--and charged with causing "serious bodily injury to a child," a first-degree felony that carries a punishment range of five years to life in prison. A magistrate set bond at $100,000.

Yet, it is what happened next that has even the crusty types who inhabit the Frank Crowley Criminal Courts Building outraged. Like a surprising number of illegal immigrants charged with serious crimes, Martinez somehow raised enough money to bond out of the criminal justice system and into the hands of the U.S. Immigration and Naturalization Service.

The INS took Martinez to its Denton facility and, on April 14, put her on a bus for Nuevo Laredo. Maricela Martinez is today a free woman, most likely wandering the streets of her native Apaseo in the state of Guanajuato in central Mexico. And because of a loophole in the law, it's likely that the bonding company that arranged her release for a fee will not have to forfeit Martinez's $100,000 bond.

Briana's tale has a number of county clerks, prosecutors, sheriff's deputies, and even criminal defense attorneys at the Crowley Building working to plug the hole in the criminal justice system.

"I can tell you that I am very upset about this case," says Stephanie Hudgins, the assistant district attorney assigned to prosecute Maricela Martinez. "I think that everybody should be held accountable for their actions, whether they are citizens or not."

Yet thanks to what some authorities describe as a series of "glitches in the system," every year dozens of illegal immigrants charged with crimes ranging from drug running to murder are shipped back to their native countries without being called to account for their misdeeds.

Privately, county authorities suggest that a number of criminal defense attorneys and bondsmen profit by advising their clients to take advantage of this loophole. The INS conservatively estimates there are between 35,000 and 50,000 illegal immigrants in Dallas County. Most are law-abiding people who work, pay taxes, and struggle to raise their children. But every year in Dallas County alone, several thousand illegal immigrants land in jail. About 800 are charged with serious crimes, and between 5 and 10 percent of those appear to get sent home without facing trial.

The INS has two full-time employees at the Dallas County Jail who interview all inmates listing a foreign place of birth. Following the interview, if the INS determines the person arrested is illegally in the country, the INS puts a "hold" on the case.

"A notation goes on their file sheet," explains Lyn Ligon, a spokesman for the INS. "So that when and if they are released for any reason--on parole, after they've served time, or if they bond out--they come into our custody." But once an illegal immigrant lands in INS custody, Ligon explains, "our only charge is to get them out of the country as expeditiously as possible. It's kind of a conflict of laws, in that the state system and the INS have different priorities."

Maricela Martinez's case shows how the system can work for an immigrant who would rather return home than face criminal charges. On March 21, after Martinez's family raised the money to post her bond, Martinez was released into INS custody. Since she was not yet convicted, the only charge she faced in the immigration system was illegal entry. Although she was eligible for bond, no bond was set or posted.

Instead, on April 14, Martinez appeared at a deportation hearing before U.S. Immigration Judge D. Anthony Rogers. Rogers ordered Martinez deported, and Martinez waived appeal. That afternoon, she was put on a bus bound for Nuevo Laredo.

According to those who work in the criminal justice system, it happens this way in dozens of cases a year. In most, no one cares. "Mostly, it happens in drug cases," says Tim Banner, a criminal defense attorney who specializes in high-profile drug cases. "It's a lack of communication, a little federal-state snafu."

"Our obligation to the taxpayer is just to get rid of 'em," says Ligon. "It doesn't always serve justice, but it's the law." The INS position is that state authorities should set bonds high enough that illegal immigrants charged with crimes cannot afford to bond out of jail.

Last October, the INS district director sent a letter to Dallas County District Attorney John Vance suggesting this solution to the problem. Yet, as state authorities point out, Martinez's $100,000 bond was not unusually low. Indeed, if her bondsman had required all or even most of the full $100,000 as security, it would have sufficed to keep her in jail. But a number of Dallas County bond companies that routinely write bonds for illegal immigrants require as little as 10 percent down--thanks in part to an obscure provision of state bonding law that has long been construed to let the companies off the hook on bonds when an immigrant is deported.

"Of course they're not obligated to pay when the action of another government [the INS] causes the defendant not to appear," says Banner. "It's an absolute defense to a bond forfeiture suit."

Following her arrest, Martinez's family hired attorney Ramon Rincon to represent her; within a month, Rincon withdrew, citing lack of payment. Then-felony Judge Tom Price appointed a local attorney, Donna Winfield, to represent Martinez.

By late March 1997, authorities investigating the case say that Martinez's family had scraped together $11,500, which they paid to Winfield.

According to documents filed by the bondsman, Eddie Dees, owner of Fast Action Bonding, Dees was in turn paid $10,000 to write a $100,000 bond.

Dees, who is known around the courthouse as "Fast Eddie," posted the bond on March 17. A few days later, Martinez was turned over to the INS, and her deportation hearing was set for April 14. On April 11 Dees filed what is known as an "ATGOB," or an application to go off bond. The ATGOB, which notifies the court that a defendant is about to be freed, seeks to release the bondsman from his obligations on the bond.

As the Dallas County Sheriff's Department explains, the ATGOB results in the generation of a warrant for a client's rearrest. "Fast Eddie's" ATGOB was approved in the normal course of courthouse business on April 19--five days after Maricela had been released in Nuevo Laredo.

A number of law enforcement authorities say bondsmen routinely file such motions in order to bolster their I-did-everything-I-should-have-done defense when the state tries to make them forfeit the bond.

"He knew it [an arrest warrant] wouldn't be issued until afterward," says one suspicious sheriff's deputy. "And then he knew that the warrant would go to the wrong address, her pre-arrest address. We serve hundreds of these a year with the wrong addresses that way."

An employee with Fast Action Bonding acknowledged that Martinez and other illegal immigrants were able to take advantage of a loophole in the criminal court system that, in effect, gives illegal immigrants one (nearly) free crime.

But he defends the practice, saying, "There's two ways to look at it. And one of them is, in this country, people are entitled to get out of jail." He also charges that the state was "very well aware" that Martinez was about to be released and "knew what was taking place" as it occurred. He maintains that the state has now tried to change its forfeiture rules retroactively, claiming that deportation is no longer a defense for bail bondsmen facing forfeiture.

For her part, Winfield claims that once Martinez's bond was posted, she was no longer Martinez's lawyer, since Martinez could clearly afford private counsel. The court file, however, does not reflect any motions or orders permitting Winfield's withdrawal as counsel.

On July 14, the State of Texas vs. Maricela Martinez was called to trial. Martinez was nowhere to be found. In August, the state sued Eddie Dees on the bond. Dees answered by citing case law providing that deportation is an absolute defense.

"I am aware that it occasionally happens," First Assistant District Attorney Norm Kinne says of the free ride sometimes granted to illegal immigrants. "I don't know how serious it is. We don't keep statistics on that sort of thing." Others are more acutely aware of the problem.

According to Julian Bishop, an employee in the district clerk's office who oversees the bond forfeiture division, county authorities filed 1,392 forfeiture actions against bond companies last year alone. Of that number, Bishop estimates, in some four or five cases a month, a Dallas County magistrate enters judgment against the state because of the deportation defense. That's four or five too many for a number of county employees. As a result of Briana's case, county magistrates have vowed to crack down on bond companies.

"They want it to be an absolute defense," notes Magistrate Boyd Patterson, who hears many of the forfeiture cases. "But the law says they have to show that 'through no fault of their own' the defendant didn't appear. But the INS will let a deported defendant who has a pending case come back in to defend themselves. At the border, they admonish everyone [that] they can come back in."

Patterson acknowledges, though, the state has the burden of showing that each person was properly informed that they can return for trial--a task that falls to the civil division of the district attorney's office. And a review of last year's bond forfeiture cases shows that, in many cases, the district attorney's office dropped the ball. Whether they will in Briana's case remains to be seen at a January 21 bond forfeiture hearing.

Meanwhile, as a result of Briana's case, state and federal authorities have begun to take an interest in the question of whether some bondsmen and lawyers may be knowingly helping criminal aliens flee the country. And at the urging of state authorities, the Mexican government recently issued a provisional arrest warrant for Martinez's return, and several law enforcement officers say they are optimistic that she eventually will face trial.

But while little Briana may yet get justice, it is less clear whether the proposed changes will stem the number of illegal immigrants--not to mention bondsmen and defense lawyers--taking advantage of the law.

In Maricela Martinez's case, Stephanie Hudgins and a number of other county employees are determined to bring her to justice. "I've got [Briana's] picture blown up," she says. "It faces my desk, so every day I look into this little girl's eyes. Because it matters.


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