N.J. Supreme Court to weigh high bail for illegal aliens

N.J. Supreme Court to weigh high bail for illegal aliens
Morris County sought to hold man on child molestation charge
By Peggy Wright • Daily Record • April 27, 2009

Read Comments(2)

In a case that stems from Morris County, the state Supreme Court is poised to hear arguments Tuesday in Trenton on how much impact a deportation detainer can have on the setting of bail on criminal charges against illegal immigrants.


The case of the state of New Jersey versus Manuel Fajardo-Santos involves bail originally being set in August 2008 at $75,000 on the 30-year-old Honduran national accused of molesting a friend's 9-year-old daughter in Wharton.

Almost simultaneous to Fajardo-Santos posting bail on Jan. 8, the Morris County Prosecutor's Office learned that federal Immigration and Customs Enforcement officials had placed a detainer on him as an illegal alien and his deportation was imminent.

Prosecutors persuaded Superior Court Judge John B. Dangler in Morristown to reset bail at $300,000, and Fajardo-Santos was plucked from federal custody and returned to the county jail. Defense lawyer Michael Fletcher, a public defender, appealed, and an appellate court panel in late January reversed the bail increase and reinstated the original $75,000 bail.

The appeals court concluded that authorities were aware at the time of Fajardo-Santos' arrest that he was an illegal alien, and the ICE detainer did not represent a change of circumstances warranting a bail increase. But the appellate division granted a stay of its ruling, giving the prosecutor's office time to ask the Supreme Court to hear the issue of whether trial courts can revisit bail when an ICE detainer is filed, or indeed, when any major change occurs that it believes warrants a bail increase.

Under current law and procedures, ICE -- which operates under the federal Department of Homeland Security -- files detainers against suspected illegal aliens who go through a "removal" or deportation hearing before a federal immigration judge. ICE has no obligation to heed whether an illegal alien's criminal charges have been adjudicated.

Joseph Connor Jr., deputy first assistant prosecutor for the county prosecutor's office, in a legal brief to the Supreme Court, wrote: "The solution is remarkably simple. It does not require this court to wade into the political maelstrom surrounding immigration policy. Rather, it fits squarely within New Jersey's time-honored bail system.

"All that this court has to do is to allow trial courts to revisit bail when an ICE detainer is filed. If an ICE detainer is filed after bail is set, the court should be allowed to consider an increase in bail. This comports with time-honored principles that require a court to consider all factors bearing on the risk of flight," Connor wrote.

Fletcher, the public defender representing Fajardo-Santos, has taken a narrower, more fact-sensitive view of the issue involving his client. The Morris County Prosecutor's Office -- which is supported in its arguments by the state Attorney General's Office and the County Prosecutors Association of New Jersey -- views the issue on a more global basis.

A main concern of prosecutors is that illegal aliens can use federal removal proceedings to avoid trial, disrupt the judicial system and deprive victims of their chance for justice.

Fletcher, however, contends that the judge who originally set bail on Fajardo-Santos knew he was here illegally, as did a second judge who reviewed the $75,000 bail a few days later and kept it intact. Only when it appeared in January that Fajardo-Santos might be removed from the country did the prosecutor's office act on a bail increase, and the judge abused his discretion by going along, Fletcher said in his legal brief.

"The state argues that the ICE detainer is a 'new' circumstance bearing on defendant's propensity to appear at future court appearances, yet it is undisputed that the state and two different Superior Court judges were aware of defendant's illegal status," Fletcher wrote.

"It is disingenuous to suggest that this detainer is anything novel in the instant case," Fletcher added.

The Supreme Court arguments follow the unanticipated deportation last August of another child sex assault suspect, Carlos Ulloa-Murillo, 20, of Morristown.

Arrested in August 2008, Ulloa-Murillo posted $50,000 bail, was picked up by ICE on its detainer, and deported to Honduras on the order of a federal immigration judge. The prosecutor's office didn't learn he was gone from this country until after his indictment by a county grand jury in November.

Peggy Wright can be reached at pwright@gannett.com.

http://www.dailyrecord.com/article/2009 ... GECAROUSEL

State Supreme Court holds off on immigration bail hike decision
By Peggy Wright • Daily Record • April 28, 2009

The state Supreme Court this afternoon 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 versus 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 on 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,â€