Bill Montgomery Fails to Convict an Innocent Man

Criminal defense attorney David Cutrer (left) and immigration attorney Lance Wells, taking on the MCAO's cruel, unconstitutional policies toward undocumented defendants.

The most emotional day of Rafael Lavallade Gonzalez's recent weeklong trial in Maricopa County Superior Court occurred when Gonzalez took the stand in his own defense.

Thin and frail, with a lion's mane of white hair and dark-rimmed glasses, Gonzalez, a 70-year-old diabetic, stood charged with four counts related to forgery and using the identity of another for employment.

He was picked up with four others in August during an MCSO raid of a GNC warehouse at Buckeye Road and 63rd Avenue.

One of those arrested with Gonzalez was Luz Ruiz Rascon, mother of two children, one suffering from leukemia.

I discussed her case in my recent cover story, "Same as the Old Boss" (February 7), which details how Maricopa County Attorney Bill Montgomery has continued a policy of persecuting the undocumented begun under his disbarred and disgraced predecessor, Andy Thomas.

Rascon's charges are similar to Gonzalez's, and both have been in this country for decades. Each had worked at vitamin distributor GNC for about 11 years. Rascon packed and Gonzalez prepared cardboard boxes.

Both have been held non-bondable in Sheriff Joe Arpaio's gulags for more than six months, awaiting trial under the dictates of Prop 100.

Passed by the voters in 2006 during a nativist tidal wave that is only now showing signs of subsiding, this amendment to the Arizona Constitution added the undocumented to the ranks of pedophiles, rapists, and murderers denied bail.

Neither person is a flight risk. Neither has a criminal record of any kind.

But this doesn't matter. What matters is that supposedly there was "probable cause" to believe they were in the country illegally and that the "proof is evident or the presumption great" that they were guilty of a "serious felony offense," defined by the Arizona Legislature as a class-four felony or above.

The "proof" or "presumption," in the case of Gonzalez, was dead wrong. He was found not guilty of all charges after a grueling seven-day trial that exposed the hypocrisy and cruelty behind Montgomery's program of charging undocumented workers with the maximum, thus keeping them in jail and, often, coercing a plea out of them that makes them deportable from the United States.

Gonzalez refused to plead guilty. He is made of tougher stuff, evidenced by his testimony.

He talked of how he came to the United States in the '90s because there was no work for older men in Mexico.

"I knew I had to raise my family," he testified in Spanish. "I knew I had to feed my children."

He also knew the risk of going to another country, not knowing the language, but he had no choice.

"For my wife and my children, I would give my life," he said, his voice breaking.

In Phoenix, the sidewalks were paved with hot concrete, not gold. He looked for a job, but couldn't find one.

For five years, he sold paletas, Mexican popsicles, from a little, white pushcart on lease from a vendor.

Eventually, he saved enough money to get a truck and start selling ice cream. He had a valid Arizona driver's license, issued when the undocumented still could get them legally.

He knew a guy recruiting workers for GNC. He went in for an interview and was hired on the spot. He didn't dare ask how much GNC would pay him.

"My need was so great that I was not going to be picky," he said.

He did menial work at GNC. Work he was proud of, nonetheless.

He had reason to be proud. On a meager salary, he put a son and a daughter through college at Arizona State University, paying the out-of-state tuition rate demanded of undocumented kids by Arizona law, no matter how long they've resided here.

His daughter, Cecilia, graduated with a degree in business, his son Rafael, with a degree in mechanical engineering.

Both were on hand for every day of the trial, as were their mom, Gonzalez's wife, Maria, their priest, and dozens of family and friends.

Like many undocumented immigrants, Gonzalez had applied for and received a Tax Identification Number from the IRS.

With the help of an accountant, he paid taxes during the entire decade-plus that he worked for GNC, sometimes earning a refund when he paid too much. He has the tax returns to prove it.

Incapable of reading or speaking English, he seemed genuinely confused about the difference between a TIN and a Social Security number, which is needed to work in this country.

There was an SSN belonging to someone else on the documents in his personnel file, but he maintained that GNC instructed him how to fill out his documents, going line by line. And there were portions not in his handwriting written in ink of a different color.

Earlier, GNC's human resources director testified that she never helped employees fill out paperwork.

Still, Gonzalez's immigration attorney, Lance Wells, discovered that the Social Security number on one form was written atop a portion covered in correction fluid.

Held up to the light, Gonzalez's TIN could be seen written underneath. As Gonzalez had been charged with one count for every document in his file, prosecutor W. Tattnall Rush was forced to dismiss one count.

After that, reasonable doubt hung over the entire proceeding.

When MCSO Detective Wade Voeltz was asked by Gonzalez's pugnacious defense attorney, David Cutrer, whether the MCSO ever investigated GNC on suspicion of forgery or similar allegations, Voeltz admitted that the Criminal Employment Squad he's a part of does not investigate employers.

Rather, the squad "looked at employees, primarily." Why? Voeltz said it was too hard to make a case against an employer.

Reluctantly, Voeltz admitted that the correction-fluid issue might be the kind of thing he'd look into.

When I asked Montgomery for my cover story why he never prosecuted employers of illegal aliens under civil or criminal statutes, he insisted that no agency brought him those cases.

Yet, on the stand, Voeltz agreed that the MCSO works "hand-in-hand" with the County Attorney's Office when it comes to employees nabbed in Arpaio's raids.

Cutrer pointed the finger at GNC and away from his client, joking that Gonzalez "doesn't walk around with a bottle of Wite-Out in his pants."

At times, Rush sounded like GNC's defense attorney.

"There's no evidence that anyone at GNC did anything wrong," Rush insisted in his closing argument. "Nothing."

The jury deliberated for two hours. If found guilty, Gonzalez probably would have been sentenced to time served, turned over to U.S. Immigration and Customs Enforcement, and deported.

When jurors delivered three not-guilty verdicts, most in the courtroom breathed a sigh of relief.

The judge ordered Gonzalez released to ICE. Two days later, ICE freed Gonzalez on his own recognizance.

At a per-diem rate of $88.91, it cost about $16,737 to book and incarcerate Gonzalez for 186 days. Same for Rascon, though her clock still is running.

This is not including the cost of the trial or the pain and suffering endured by the accused and his family.

Victims of Rascon or Gonzalez? There's none in her case. She used a fake SSN. In his, the state could not prove that the SSN's owner lost anything.

There are hundreds of such cases a year. Most do not go to trial. The county attorney bets that the undocumented will fold and sign a plea to escape Arpaio's dungeons.

Montgomery could hit these people with a lower felony, making them bondable.

He could decline prosecution or send the cases to the justice courts as misdemeanors.

He chooses not to, as Arpaio's roundups of brown people continue.

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