Undocumented Immigrant Charged with UGA Slaying

Immigration and criminal law collided after an undocumented person from Venezuela with an extensive criminal history in the United States allegedly beat and killed a 22-year-old nursing student.

In 2022, the 26-year-old suspect was apprehended illegally crossing the border and then immediately released. A few months later, he was arrested in New York City on charges of child endangerment and violation of a driver’s license law, according to U.S. Immigration and Customs Enforcement. Then, he was cited for shoplifting at an Athens. Records show that a bench warrant was issued, meaning that he very likely skipped a court date. At the time of the murder, he was living in an apartment within walking distance of the crime scene.

Reaction to the crime predictably followed party lines. State Representative Houston Gaines (R-Athens) said local politicians had created “an atmosphere of Athens being a place welcoming to people who, frankly, shouldn’t be in the United States.” One of these local politicians, Mayor Kelly Girtz, responded that critics had a “cartoon narrative around how the universe operates.”

Jail Release Issues

The young man in this story is obviously in a lot of trouble. If he must face that trouble from the inside of a jail cell, there’s very little that a Marietta criminal defense lawyer, or anyone else, can do for him.

Incarcerated defendants have lawyers. Generally, however, these lawyers do little except convey the state’s first plea bargain offer to the defendant and stand at the bench a ss/he pleads guilty. Vigorous defenses are extremely rare in these cases. That’s especially true if the state’s first offer is a probation offer. Quite understandably, most people will do almost anything to get out of jail.

On the other hand, if defendants are out on bail, attorneys have a chance to thoroughly review the case, then prepare and present a solid defense. This defense might not result in a complete win, like a not guilty verdict, but it almost always produces a much better result than the one prosecutors initially offered.

So, bai is critical, especially in complex murders, aggravated assaults, extreme sex crimes, and other violent criminal cases. However, bail is often unavailable in these matters, at least initially.

Authorities almost always label such offenders as flight risks. The theory is that people facing serious charges will flee the jurisdiction, because they know what’s coming. That’s especially true if they have criminal histories. Immigration issues also complicate jail release issues. More on that below.

Conventional wisdom may be wrong on both these points. Many people facing serious charges are anxious to have their day in court, especially if the evidence is circumstantial. Furthermore, the criminal justice system has a shock and awe factor that intimidates first-time offenders.

Nevertheless, based on the conventional wisdom, the sheriff usually sets an impossibly high initial bail amount. The Eighth Amendment guarantees reasonable bail in criminal cases. So, at a bail reduction hearing, the judge must look beyond the questionable conventional wisdom and examine factors like the defendant’s:

• Contacts with the community (job, family, etc.),
• Ability to pay,
• Likelihood of flight (i.e. does s/he have money and a passport),
• Threat to the community, and
• Likelihood of conviction (amount of evidence the state has).

Usually, to avoid the risk of a hearing, a Marietta criminal defense lawyer compromises with the prosecutor on this issue. For example, the state usually agrees to reduce bail if the defendant agrees to more conditions of release, such as electronic monitoring.

Investigations in Violent Criminal Cases

Prompt jail release sets the stage for a successful result. These cases often rest on a shaky foundation, such as a targeted investigation or unreliable eyewitnesses.

The defendant in the above story had an extensive criminal record. None of his prior were particularly alarming, but they were probably enough to put him on the radar.

Frequently, when investigators have little to go on, they immediately suspect people in the area who have criminal records. Sometimes, the target is a person of interest (someone who probably knows something about the crime). That’s a fairly reasonable assessment, especially if the criminal activity was recent, local, and somewhat related to the investigation at hand.

Other times, the target is a suspect. Then, officers work backwards. Once they have their suspect, they look for evidence that implicates that suspect.

In the old days, most jurors supported such tactics. They basically assumed that if the police arrested the suspect, the suspect did something wrong. The old days are gone. Public confidence in police officers recently hit an all-time low. Now, in these situations, many jurors suspect a setup.

One Supreme Court Justice once said (and we may be paraphrasing) that eyewitness testimony is the most compelling and most unreliable form of evidence in criminal cases. Something almost mystical happens when a disinterested witness points to a defendant and says “That’s the guy.”

Lineup issues often taint these dramatic conclusions. Cross-racial bias, which is probably present in the above story, is a good example. If someone sees ten people of another ethnicity who are each about the same age, weight and height, all ten look alike.

Crime and Immigration

Immigration holds vastly complicate bail proceedings, as mentioned above. It’s almost a sure thing that such people will leave the country, given half a chance.

Under U.S. law, a noncitizen, even a green card holder, can be deported for an aggravated felony or a crime of moral turpitude. The list of offenses that belong in each category changes frequently, but we’ll run through what we know as of March 2024.

Usually, a crime of moral turpitude (CMT) is an offense that, in everyday terms, churns the stomach. Offenses that involve, in the words of the State Department, “fraud, larceny, or intent to harm things” include:

• Ordinary DUI,
• Most kinds of assault, especially domestic battery,
• White-collar crimes, like fraud or embezzlement,
• Sex crimes, including prostitution or indecent exposure,
• Theft, and
• Perjury.

These matters may be subject to the petty offense exception. This rule applies if the maximum penalty was less than one year of imprisonment, and if the defendant served less than six months.

One CMT conviction in the first five years after entry, or two CMTs any time after entry, if they arose from separate criminal episodes, could mean deportation.

Aggravated felony rules are a bit more straightforward. These offenses are one-and-done infractions. The current list includes:

• Murder,
• Rape,
• Drug or firearms trafficking,
• Sexual abuse of a minor,
• Possession/Production of child pornography,
• Money laundering, fraud or tax evasion involving more than $10,000,
• Theft or violent crime with a sentence order of at least one year (it is irrelevant if it was suspended or if you only had to serve part of it),
• Espionage, sabotage, or treason, and
• Perjury with a sentence of at least one year.

One additional note. For immigration purposes, deferred disposition counts as a conviction, and most expunged offenses still count. These state law proceedings don’t affect federal immigration law.

Violent criminal charges are scary, but in most cases, defensible. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.