Morris prosecutor asks high court to consider bail increase for illegal alien
by Jim Lockwood/The Star-Ledger
Monday February 09, 2009, 2:25 PM
The Morris County Prosecutor's Office has filed a motion today with the state Supreme Court asking it to hear a case of whether a bail of an illegal alien could be significantly raised because the defendant also has a federal immigration detainer placed on him.

Prosecutor Robert Bianchi argues that bails in such situations should be raised or modified, because if the defendant posts the original, relatively low bail, he then could be picked by federal authorities and deported before the local criminal case is resolved - essentially avoiding prosecution.


The motion stems from the case of Manuel Fajardo-Santos, a native of Honduras charged with sexually assaulting a child, and whose bail was raised from $75,000 to $300,000 cash only on Jan. 14 by Superior Court Judge John Dangler, sitting in Morristown.

The judge had increased the bail in response to Bianchi's concern that Fajardo-Santos had posted the lower bail and now was to be turned over to the custody of the federal Immigrations and Customs Enforcement on a detainer. Bianchi feared that Fajardo-Santos, while in ICE custody, would consent to deportation and be sent back to Honduras -- essentially avoiding prosecution on the sex-assault charges. That's what happened in December in a case involving another illegal Honduran charged with child-sex assault, Carlos Ulloa-Murillo.

However, on Jan. 27, the state Appellate Division overturned the high bail on Fajardo-Santos and restored it to $75,000, ruling there was nothing new in the case to warrant the fourfold increase in bail.

The prosecutor now is asking the Supreme Court to hear the case.

"I have vowed to take this matter up to as high a court as will be allowed," Morris County Prosecutor Robert Bianchi said in a statement. "The Morris County Prosecutor's Office is simply trying to assure that we are able to prosecute offenders who have committed very serious offenses and that the victims of those crimes will have their day in court. Only by ensuring the presence of these defendants at trial can this objective be accomplished and we will do what we can to lawfully accomplish this laudable objective."

The root of the problem is a jurisdictional one, and the fact that someone is charged criminally in a state court apparently has no relevance or bearing in a federal deportation hearing. If a defendant either consents to, or does, not fight, deportation, the deportation then happens fairly quickly.

Last week, the prosecutor's office filed similar bail motions in Superior Court on some eight other defendants who also have ICE detainers, and Dangler modified or raised those bails.

The main legal question at hand in the Supreme Court motion is whether "a Superior Court may revisit a defendant's bail after federal authorties filed a detainer, signaling their intent to permanently remove (deport) that defendant from the United States thereby dramatically increasing the risk that he/she will not appear for trial."

Appeals to the state Supreme Court are not automatic, and the high court may decide to either hear the case or take no action on it.

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