Judge cites lack of evidence on migrant

Dec. 6, 2006 12:00 AM

A Maricopa County judge dealt a surprise blow to the county attorney's crusade to prosecute immigrants who pay coyotes to smuggle them into Arizona.

Using a rare court procedure, Judge Thomas O'Toole on Tuesday tossed out a jury's guilty verdict and acquitted Aldolfo Guzman-Garcia, an undocumented immigrant who paid $700 to have a coyote bring him to Arizona.

The judge said he did not believe there was sufficient evidence to show that Guzman-Garcia was part of a human-smuggling ring.

The ruling is not precedent setting. Prosecutors say they plan to appeal the case that County Attorney Andrew Thomas recently touted as a key victory in his quest to curb illegal immigration.

Legal experts say the case shows how county judges are struggling to interpret the law that went into effect in August 2005.

The ruling comes as the legal and political battle over Arizona's human-smuggling law intensifies. In November, a group of immigrant advocates filed a federal lawsuit challenging Thomas' interpretation of the law.

Thomas' prosecutions have drawn political fire because the coyote law was initially created to prosecute human smugglers. Thomas, however, also is using the conspiracy law to prosecute undocumented immigrants who pay to be smuggled. His actions have drawn national attention.

Surprise ruling

On Tuesday, the county attorney called the judge's ruling "extraordinary" but downplayed its impact on other smuggling cases that his office is pursuing. O'Toole has changed his mind on other human-smuggling legal issues, including ones in the Guzman-Garcia case, Thomas said.

"In all due respect to the judge, I don't understand this ruling. This one was a curve ball," said Thomas, noting that his office has a 90 percent conviction rate in human-smuggling cases. Other judges have accepted guilty pleas from migrants charged in smuggling cases, he said.

"This is a long-term battle," he said. "Immigrants typically turn to the judiciary as the last refuge of sympathy."

More than 160 people have been convicted in human-smuggling cases, but the case against 28-year-old Guzman-Garcia was the first time a jury had convicted a person of the crime. Since the Guzman-Garcia case, there has been one other jury conviction in a human-smuggling conspiracy case.

In other human-smuggling prosecutions, Thomas acknowledged that many of the accused migrants pleaded guilty to lesser offenses, got no jail time, aside from their time served, and were put on unsupervised probation.

Lack of evidence

In Tuesday's case, O'Toole acquitted Guzman-Garcia because the prosecution never presented enough independent evidence that he was part of the smuggling business -- prosecutors only proved that he was a paying customer.

"The court finds that there was no substantial evidence to warrant the defendant's conviction for this charge," O'Toole wrote.

"Evidence showed that the defendant was nothing more than a paying passenger. . . . The conspiracy statute does not impose criminal liability on a person merely being transported by an alien smuggler for profit or commercial purpose," the judge concluded.

O'Toole's ruling even surprised the defense attorney, who had come to Tuesday's hearing with his client so that Guzman-Garcia could be sentenced.

Defense attorneys routinely make a last-ditch motion asking the court to acquit their clients after the prosecutors finish presenting their case, and the defense often asks again after the jury's verdict. Judges rarely grant the requests, lawyers say.

It is even more rare for judges to deny the first request and then change their minds and grant the second request after the verdict is in, said Gary Lowenthal who teaches criminal law at Arizona State University. That is what happened in Guzman-Garcia's case.

After O'Toole cleared Guzman-Garcia, "I felt like someone has thrown water on my face," said Guzman-Garcia's lawyer, Jose Antonio Colon.

After the ruling, Guzman-Garcia was taken into custody by immigration officials, Colon said.

Guzman-Garcia can demand a hearing on his immigration case or he can volunteer to go back to Mexico. If Guzman-Garcia agrees to go back, he will be put on a bus to Nogales.

Questions of legality

Guzman-Garcia is from Morelia, Michoacan, but worked as a construction worker in the United States and had lived in Atlanta for several years, his lawyer says. Guzman-Garcia was adamant about fighting the human-smuggling charges and flew back and forth from Arizona to Georgia for court hearings, Colon said.

Colon blamed the jury verdict on the anti-immigration climate in the Valley.

"Most of the people in Arizona feel there is a problem with illegal immigration," Colon said. "They feel something must be done."

One lawyer for immigration advocates renewed his call on Thomas to temporarily suspend the conspiracy prosecutions.

Thomas should wait "while the courts have a chance to decide the legality and constitutionality of the policy," said Peter Schey, president of the Center For Human Rights and Constitutional Law.

Human-smuggling conspiracy cases are a new area of law, said Lowenthal, the ASU professor. Until a Maricopa County smuggling case reaches the state appellate or state Supreme Court level, there won't be a precedent to guide judges. Maricopa County judges will continue to grapple with the cases, Lowenthal said.

"The judge is in uncharted water," he said.