2 hours ago • By Howard Fischer Capitol Media Services

PHOENIX — Maricopa County Attorney Bill Montgomery wants a federal appeals court to give him what legal foes call a “do-over” on his bid to salvage a state law denying bail to many people not in this country legally.

Montgomery conceded, in filings with the 9th U.S. Circuit Court of Appeals, that a prior county attorney did not present evidence showing that undocumented individuals were less likely to show up for court dates than citizens or legal residents.

The appellate judges, citing that lack of evidence, ruled last week that the lack of facts, coupled with disparate treatment of those without documents, make the 2006 voter-approved Proposition 100 illegal and unenforceable anywhere in Arizona.

But Montgomery, in his latest plea, said the challengers to the law effectively admitted undocumented defendants had a higher incidence of nonappearance for trials, so the office thought there was no need to present any statistical evidence.

Cecillia Wang, attorney for the American Civil Liberties Union, said that’s not true. She said Montgomery is now seeking a “do-over” for flaws in the way his office handled the case in the first place.

“They had every opportunity to show that Proposition 100 was supported by some indication there was a flight-risk issue here,” she said. “And they didn’t do it. You know why? Because those numbers don’t exist.”

Montgomery said he does have such data, even though former County Attorney Andrew Thomas, who was in office when the law was challenged, chose not to present it.

He said the appellate court should give him a chance to make the case now.

“The story is not, ‘I want a do-over, Andy Thomas screwed up,’” Montgomery said. He said it’s a question of “simple fairness.”

He said if the appellate court is relying on a lack of evidence to support Proposition 100, it should direct there be a court hearing to explore that issue before voiding a voter-approved state constitutional amendment.

Montgomery said there are “a couple of hundred” people now in Maricopa County jails awaiting trial who were denied bail because of Proposition 100. He said if the ruling is not overturned, that will allow each of those people, and for an untallied number of defendants in the other 14 counties, to demand a hearing to determine whether they should be released, which will cause a backup in other cases.

He also told the court that if he is not given another chance to make his case, it should at least delay implementing the ruling to let him seek review by the U.S. Supreme Court.

The measure makes bail unavailable to those charged with “serious felony offenses” if they are in this country illegally and if “the proof is evident or the presumption great” that the person is guilty of the offense charged.

Proponents said that anyone who has crossed the border illegally probably has few ties to this country, making them a greater flight risk.

Voters approved the measure by a 3-1 margin.

But appellate Judge Raymond Fisher, writing for the majority of the 11-member court, said there is a constitutional presumptive right of those arrested to be freed on bail.

But he said a blanket rule that those in the country illegally and accused of certain crimes must be held without bond is not justified.

“The record contains no findings, studies, statistics or other evidence ... showing that undocumented immigrants as a group pose either an unmanageable flight risk or a significantly greater flight risk than lawful residents,” Fisher wrote.

It is that evidence that Montgomery now contends he can marshal. But it may not matter.

Fisher said he and his colleagues are not saying it is up to Montgomery to produce such evidence. But he said the absence of such evidence is a key factor in showing that Proposition 100 was not narrowly crafted to address a specific problem.

And Fisher suggested there is, in fact, evidence to the contrary.

He pointed out there were undocumented individuals who were arrested before Proposition 100 was approved who had been released without bail or after posting bond. He said they still showed up in court — only to then be “needlessly remanded into state custody” after the ballot measure took effect.

Montgomery has another hurdle to overcome: the breadth of the measure.

Fisher pointed out that Proposition 100 applies not just to those accused of serious offenses but “also relatively minor ones,” like altering a lottery ticket to defraud, unlawful copying of a sound recording or theft of property worth between $3,000 and $4,000.

What Thomas did or did not do plays into this case in another way.

Appellate Judge Richard Tallman, dissenting from the majority ruling, said there was evidence of a sort presented: statements made by Thomas in favor of the measure during the 2006 campaign.

Thomas argued that “far too many illegal immigrants accused of serious crimes have jumped bail and slipped across the border in order to avoid justice in an Arizona courtroom.”

But Fisher said that statement is not substantiated with any real data. And he said Thomas “is not a credible source,” having been disbarred two years ago on charges he used his office to “destroy political enemies” and for filing unfounded criminal charges.