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Although it was an uncommon request, the judge granted her wish and set the depositions for December 4. Soon after, public defender Tom Ward was appointed to represent Chacón-Posada. Late in the day on December 3, Ward got a fax at his office that listed the sixteen passengers and said they were to be deposed at 8 a.m. the next day. Half an hour later, the prosecutor sent over 238 pages of discovery that included police reports and a DVD with interviews of the witnesses in Spanish.
It was the first Ward had heard about the depositions. He knew he'd never have time to review all the evidence against his client before the depositions. Furthermore, he hadn't even met Chacón-Posada yet, who was in a jail an hour-and-a-half drive from his office. "I'm thinking, this individual is charged with sixteen counts of a Class 3 felony and is facing 64 years in prison, and they want me to take critical depositions in this case, and I don't even have anything to go on," Ward says.
Ward consulted with his boss, state public defender Douglas Wilson, and the two decided to make a drastic move. They filed a motion refusing to show up for the depositions. Ward argued that questioning witnesses in a case he knew nothing about violated his ethical responsibility to his client. "There were objections being filed because ICE was going to take the witnesses away," says Wilson, who signed off on Ward's motion to not appear. "That's not our problem. That's the prosecutors' problem."
Representatives for the 18th Judicial District, whose prosecutors handled this case, did not respond to several requests from Westword to interview the attorneys involved. But in a motion filed on December 3, prosecutors explained their reasoning. They pointed to an affidavit from Trooper Williams, which said that five of the passengers had already been deported and the rest would likely be gone soon. "There are no criminal charges pending against the witnesses which would prevent them from being deported by ICE," prosecutors wrote. "Based on the standard custom and procedure...the remaining witnesses will be deported in the near future."
The judge went with the depositions over Ward's objections, and on December 4, ten witnesses were questioned by prosecutors. Chacón-Posada sat in the courtroom by himself. At one point, he asked the judge if he could ask questions, too, since his attorney hadn't shown up. The judge said no.
Prosecutors and defense attorneys are equally frustrated by human-smuggling cases. Both sides say the biggest complication is the fact that the witnesses wind up getting deported.
Eagle County District Attorney Mark Hurlbert says one judge dismissed a human-smuggling case because the witnesses had been deported: "He said, 'That's the government that's deporting them, and that's you. And since you got rid of your witnesses, I'm suppressing the evidence from the witnesses and dismissing the case.'"
Subpoenaing witnesses held by ICE hasn't worked, either, says Jennifer Swanson, the district attorney in the 15th Judicial District, headquartered in Lamar. "As soon as we serve the subpoena to one facility, they've already been deported or moved."
ICE spokesman Rusnok claims that "attorneys can arrange to depose or subpoena aliens in ICE custody through the court system."
But prosecutors report that it's nearly impossible to get a straight answer from ICE officials about where witnesses are being held or when they'll be deported.
The only other option — bringing the witnesses back from their home countries for the trial — is improbable, expensive and burdensome. "Could I ask somebody to come back for trial? Sure," says Tamar Wilson, a former state prosecutor who is now the staff attorney and lobbyist at the Colorado District Attorneys Council. "Is it likely they're going to come back from Mexico for my trial? Probably not."
Only federal prosecutors have the ability to hold witnesses. But the U.S. Attorney's Office in Colorado doesn't prosecute many smuggling cases because of limited resources, says Assistant U.S. Attorney Jim Hearty. If there are aggravating circumstances, such as deaths caused by a van crash, the feds may take the case since they can also charge defendants with immigration crimes, such as visa fraud or illegally re-entering the country after being deported a first time.
But when it comes to the actual smuggling charge, federal prosecutors now run into the same problems as state prosecutors. Until recently, the feds could hold a few of the passengers in an alleged smuggling load so they could depose them on videotape. But a federal appellate ruling put a kink in that plan. The judge in that case, Hearty says, decided that since a federal agency, ICE, deported the witnesses in the first place, it wasn't fair to allow federal prosecutors to use videotaped depositions at trial — which defense attorneys say violates a defendant's right to confront his accusers in person.
With no passengers to testify that they paid the driver to smuggle them through the country — the main tenet of the crime — there's only circumstantial evidence to prove human smuggling. Even if the passengers admitted as much to the police, that's considered hearsay at trial and is inadmissible.