Illegal Immigrants Held As Witnesses for Trial

By Tom Jackman
Washington Post Staff Writer
Monday, September 22, 2008

Five men have been sitting in the Fairfax County jail for nearly a month now, although none is charged with a crime. Rather, they might have witnessed a killing. Some of them.

The men are being held as witnesses after the fatal stabbing of Adulio Morales-Bonilla, 36, in Fairfax City last month. Everyone in the case -- the victim, the suspect, the witnesses -- was in this country illegally. Fairfax City police enlisted the help of U.S. Immigration and Customs Enforcement agents and had the witnesses detained.

But then ICE told police that the witnesses were going to waive deportation hearings and might be returned to their native Honduras within a week. Faced with the possible collapse of their case, police obtained "material witness" warrants against the men and had them jailed without bond, even though the trial might not occur for another year.

Legal experts and attorneys for the witnesses expressed outrage that the men were being held to secure their testimony.

"What are we, in Guantanamo?" asked Abbe Smith, a Georgetown University law professor and expert in criminal defense. "They are simply witnesses. They happened to be someplace where something happened. That should shock the conscience of any American citizen."

Fairfax prosecutors say that increasingly, immigrants who are in this country illegally -- from victims to witnesses to suspects -- are failing to show up for trial. And when the Morales-Bonilla slaying presented the same potential problem, said Fairfax Commonwealth's Attorney Raymond F. Morrogh, prosecutors turned to Virginia's material witness law and simply locked up the witnesses indefinitely.

"We've got to do everything we can," Morrogh said, "especially in a murder case, to make sure the victim's rights are protected."

Prosecutors in Virginia said that they rarely use material witness warrants but that when they do, the witnesses usually are released on bond. No one could recall a similar situation, but several said they thought that Morrogh had done the right thing.

"As a prosecutor, you never particularly want to have a witness who doesn't like you," said Arlington County Commonwealth's Attorney Richard E. Trodden. "But if they're telling you he's going out the door, you've got to do something."

Trodden and others said there is an alternative to holding the men in the Fairfax jail: custody or supervision by ICE. He said he hoped that ICE would realize "there's a greater good here" and not deport the men if they are released from jail.

Fairfax City Police Chief Rick Rappoport said police were trying to work with ICE on a compromise. Ernestine Fobbs, an ICE spokeswoman, could not discuss the Fairfax case but said that when illegal immigrants "are in our custody, we will work with the local law enforcement. But we can't hold them indefinitely."

Originally, six witnesses were detained. But defense attorney Michael J. Lindner persuaded Fairfax Circuit Court Judge Jane Marum Roush to release one of the witnesses, Luis A. Rodriguez, on Wednesday. Roush looked at the affidavit written by Fairfax City Detective Michael D. Boone and found that none of the six witnesses was identified as having any information about the case.

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