April 29, 2009

Justices wait to decide on high bail for illegal aliens

Morris prosecutor: Tactic needed to prevent deportation before a trial

By Peggy Wright
Daily Record

The state Supreme Court on Tuesday heard brief legal arguments -- and reserved making a decision -- on whether an immigration detainer filed against an illegal alien charged with a crime can be used as a factor to increase bail.

The case before the state's highest court -- State of New Jersey vs. Manuel Fajardo-Santos -- involves the $75,000 bail that originally was set in August 2008 on the 30-year-old Honduran national accused of molesting a friend's 9-year-old daughter in Wharton.

Fajardo-Santos was indicted by a Morris County grand jury Dec. 17, and a day later, federal Immigration and Customs Enforcement officials filed a detainer against him as a suspected illegal alien. He was able to post bail on Jan. 8, and ICE a few days later picked him up and the process began for his removal from this country, even though his criminal charges had not been resolved. Fearful he would be deported, the Morris County Prosecutor's Office persuaded a judge to increase bail to $300,000, citing the detainer as a change in circumstances, and Fajardo-Santos was returned to the county jail.

An appeals court reversed the bail increase, reinstated the original $75,000 bail, and then the Supreme Court agreed to hear the case.

Justice Barry T. Albin asked county deputy First Assistant Prosecutor Joseph Connor Jr. today why the state didn't immediately move to increase bail on the suspect as soon as the detainer was filed on Dec. 18. Connor said that the swiftness of ICE acting on a detainer hadn't occurred before, and an earlier deportation of an accused sex offender in Morris County started bringing the issue into focus.

"We were in a learning curve with this," Connor said.

He noted that if the state is not allowed to revisit bails on defendants who are facing imminent deportation, "our victim and the public are robbed of a meaningful day in court."

The justices peppered questions on defense lawyer Michael Fletcher, who said he agreed that an ICE detainer is a factor to be considered by a judge in setting bail. However, in Fajardo- Santos' case, the Superior Court judge who set bail knew the suspect was an illegal alien and he set bail at $75,000, "subject to an ICE detainer."

Several justices questioned Fletcher's understanding of that phrase, saying the judge could have meant bail was set at $75,000 unless a detainer was filed.

"Doesn't it mean that if a detainer is filed after this, he shouldn't be let out until this is resolved?" Justice Virginia Long asked. She also inquired why prosecutors shouldn't be allowed to ask for a new bail if they discover they have overlooked an important aspect of a case.

Fletcher responded his difficulty was the detainer was filed weeks before Fajardo-Santos was able to post bail but they didn't ask for an increase until he did post.

"My point is they should not have waited four weeks on this," Fletcher said.

Chief Justice Stuart Rabner pointedly asked Fletcher to cite legal reasons why the state is foreclosed from pursuing a bail increase if it believes circumstances have changed.