Joe Arpaio, Bill Montgomery and the Five Undocumented Workers Who Got Away
Is there finally a sliver of light between Montgomery and Sheriff Joe?
About twice a month, Maricopa County Attorney Bill Montgomery holds a press conference at his office. I didn't make it to the one this past week, but the MCAO has a YouTube account, where it posts videos of these events from start to finish.
During the presser, Montgomery opened by addressing Sheriff Joe Arpaio's recent immigration raid on the local restaurant chain Uncle Sam's and the question of why some undocumented workers were hit with felony ID theft and forgery charges, but not others.
He insisted it all came down to not having the evidence needed on all those taken into custody.
"Prosecutors aren't rubber stamps for any law enforcement agency," he said. "We have an independent duty to objectively review evidence to determine whether or not we have the evidence necessary to proceed with the case."
Which almost sounds like a slap at Arpaio, though Montgomery was quick to downplay not charging five of the workers, who later were turned over to U.S. Immigration and Customs Enforcement.
ICE soon released the five men with pending dates in their immigration cases, which could take up to two years or more to wind through immigration courts.
During that time, they should be able to apply for temporary work permits and obtain driver's licenses as well.
(A tenth person collared, according to those later released, was an Anglo woman, a waitress, who may have been arrested on an outstanding warrant.)
Monty explained that the standard for an arrest is probable cause, while prosecutors must adhere to a higher standard: whether or not there is a reasonable likelihood of conviction.
About 20 percent of the time, his office does not file charges on cases brought to the MCAO by law enforcement, he said.
Later, Montgomery was even more emphatic that dropping charges against the five was not a departure from current policy.
"It would be incorrect for anyone to think there's been a change in how prosecutors review employment related fraud cases," he asserted. "Or that somehow there was less of an effort by the sheriff's department's office to investigate this particular case."
But in previous ID theft and forgery cases, Monty's office has used flimsy, contradictory and sometimes nonexistent "evidence" to charge undocumented workers and hold them nonbondable for months.
For instance, his prosecutors generally have ignored evidence that might implicate the employer, focusing exclusively on the undocumented employees.
Earlier this year, I reported on the trial of Rafael Lavallade Gonzalez, who was swept up in an MCSO raid of a GNC warehouse in 2012, and charged with the standard ID theft and forgery charges.
Gonzalez's employment file included forms apparently filled out by someone else, and there was Wite-Out used on one of the forms, something a laborer doesn't normally carry around with him.
This left more than enough reasonable doubt for the jury to find Gonzalez not guilty.
Late last year, DREAMer Sol Zenil, 23, was arrested by an Arizona Department of Public Safety officer after the highway patrolman investigated her immigration status and found she was working without papers.
As a result, Zenil was charged with ID theft/forgery and held for half a year nonbondable in Arpaio's filthy gulags.
The MCAO finally allowed her to plead guilty to a misdemeanor. Turns out the Social Security Number she was using was her own.
Zenil's mom obtained the Social Security Number for her, back when it was still possible for the undocumented legally to obtain an SSN.
I could go on, but I think you get the point. Previously, Monty's office was not paying much attention to the credibility of the charges against undocumented workers.
It didn't have to. Not many defense lawyers were bothering to fight those charges. Some local attorneys -- true parasites -- were simply taking their clients' money and instructing them to plead guilty, declaring the cases hopeless.
More recently, a handful of attorneys and public defenders have been battling for their undocumented clients. The result? Monty's office has been losing cases it normally did not have to fret about.
For example, in a couple of these cases, the issue of federal I-9 forms has come up, with defense lawyers objecting to the admission of the documents, because federal law precludes I-9s from being used to prosecute state charges.
As a result, Monty's prosecutors have had to forgo offering I-9s as evidence.
This sort of courtroom trench warfare may be forcing Monty to be circumspect in selecting cases to prosecute.
At the presser, Monty insisted that the MCAO "does not treat employment fraud cases different than any others."
"When you look at employment related fraud and a submittal for charges of identity theft, we review it the same way we review anybody else, without a regard for what their immigration status might be."
This is inaccurate, in the extreme.
Anyone who is presumed to be undocumented, and charged with a class four felony or above, can be held without bond pending trial under Arizona law.
Overcharging undocumented workers in order to deny them bail is an instrument of coercion, a way to extract the guilty plea Monty's office wants, thereby avoiding trial.
If Monty has to fight to convict these folks, his calculation necessarily changes.
Former GNC employee Luz Ruiz Rascon, the mother of a child with leukemia, was held by Monty's office, nonbondable, for nine months on ID theft and forgery charges.
In her case, the Social Security Number she used to work belonged to no one. She made it up.
There was no "victim" in Rascon's case, unless you count her victimization by the MCAO.
As in all these cases, the MCAO bet the defendant would buckle, and "plead to the lead."
Rascon didn't. She held out, and with the assistance of her attorney, was finally able to plead guilty to a misdemeanor.
Thursday night, at a meeting of one of Phoenix's pro-immigrant Barrio Defense Committees, I spoke with two undocumented bussers who were arrested during the Uncle Sam's raid.
Mainly, I was curious if the men could shed any light on, specifically, why the Maricopa County Attorney's Office dropped charges involving ID theft and forgery against them and three of their fellow workers.
Neither knew for sure. They did mention that they had invoked their right to remain silent after being read Miranda warnings by MCSO deputies.
Did this help? Well, it sure didn't hurt.
(Videographer Dennis Gilman was also in on the interviews, and soon will be posting a YouTube segment using them.)
Nevertheless, according to the probable cause statements submitted by the MCSO to the county attorney, two of those still being held invoked the right to remain silent, just like the two men I spoke with at the BDC.
The other two still in jail spoke to detectives after being Mirandized, according to the statements.
One man supposedly admitted that he had been using a false Social Security Number. The other claimed that when he was hired at the restaurant, he signed a form that had been filled out in advance.
Hopefully, these men will get competent attorneys willing to do the work required to defend them in court. The men themselves must be mentally prepared to hold out and fight.
Because, as Frederick Douglass observed, "Power concedes nothing without a demand. It never did and it never will."
The power of Montgomery's office is no exception to this rule.
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