By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
By Michael Roberts
By Michael Roberts
By William Breathes
By Michael Roberts
The gray, fifteen-passenger Ford van barreled down a rural stretch of U.S. 40 in eastern Colorado, headed west toward Limon. It was just before 2 p.m. on November 26, 2007, when the van sped past Colorado State Patrol trooper Mary Nall, who clocked it at 82 miles per hour. Nall flipped on her lights and gave chase.
When the van pulled over, Nall approached it and could see that the windows were tinted. But according to her later court testimony, she could tell right away that the back was packed with people. She asked the driver, a Hispanic man in his twenties, if anyone in the van spoke English. Only himself, he said, and the front-seat passenger, a black woman named America Washington. A few of the passengers were children, and Nall asked if they were traveling with their families. The driver turned around, repeated her question in Spanish and interpreted the answer. No, they were traveling alone.
She asked the driver for his identification, and he handed her an Arkansas license that showed him to be Jose Chacón-Posada, age 27. But when Nall called it in, it came back suspended. Washington didn't have a valid driver's license, either.
Nall had recently undergone a four-hour training session on how to spot potential human smuggling, and this looked like it. She called for backup — specifically, a trooper from the state patrol's new Immigration Enforcement Unit, a cadre of 23 officers authorized to enforce certain sections of federal immigration law in order to curtail human smuggling and trafficking on Colorado's highways.
Trooper Brian Abbrecht met Nall at the state patrol's Limon office, where she'd had Chacón-Posada follow her, caravan-style, because several passengers said they needed to use the restroom. When Abbrecht arrived, Chacón-Posada was inside the office in handcuffs. The passengers — all seventeen of them — were huddled in the van in the parking lot. Several were sitting on each other's laps.
Fluent in Spanish, Abbrecht asked them if they had documents allowing them to be in the United States. All but Washington admitted they didn't. So Abbrecht drove them in a state patrol van to a federal immigration center in Denver to begin the process of deportation. Within days, several of them would be gone and the others would be mired in the secretive detention system, waiting out of public view to be sent home. Washington wasn't charged with any crimes, and was allowed to go free that day.
Meanwhile, Chacón-Posada was charged with sixteen counts of human smuggling, a felony that carries significant prison time, plus driving offenses.
It was the beginning of a case that would confuse judges, frustrate attorneys and call into question an anti-human-smuggling law passed by state lawmakers in 2006 at the height of the hysteria over illegal immigration. The law aims to protect immigrants and make highways safer by punishing coyotes. But cracking down has proven difficult.
In four years, state prosecutors in 25 counties have filed charges in 87 human-smuggling cases. Of those, only five have gone to trial, and most have been dismissed by judges or juries for lack of evidence. In the majority of cases, the alleged smuggler — who is rarely a coyote kingpin, more often an immigrant looking for work himself — never makes it to court. Instead, he ends up taking a plea deal that results in little to no prison time, possibly probation and definitely deportation, which leaves Colorado law-enforcement agents with no assurances that he won't come back.
Why such lenient treatment? District attorneys say they have no choice. The cases are nearly impossible to prosecute because of a lack of witnesses. State troopers can arrest the drivers, but they must turn the passengers over to Immigration and Customs Enforcement. Sometimes prosecutors can scramble to secure videotaped depositions. But most of time, the witnesses are deported before that happens.
"Once they're taken into ICE custody, it's hard for us to have any impact on the process," says Trish Mahre, a deputy district attorney in Mesa County who recently prosecuted a smuggling case — unsuccessfully. "I don't have a process that says 'Don't deport them, because I need them for trial.'"
In the winter of 2006, state senator Peter Groff was among those concerned about a string of fatal van crashes on Colorado's highways over the previous few years. The vans were typically filled with as many as twenty illegal immigrants who had paid to be driven from a border state like Arizona to someplace in the Midwest or East Coast where they'd been promised work, cutting through Colorado to get there.
In January 2000, a van packed with eighteen Mexicans drifted off a highway in southeastern Colorado, flipped and landed in a ravine, killing three. The following year, a van full of nineteen immigrants collided with a tractor-trailer. In 2004, six immigrants, including a pregnant woman, died in a wreck on I-76. And four more illegal immigrants died in three separate crashes in 2005.
"Drivers who were clearly tired trying to drive mountain roads, sometimes in inclement weather, were clearly a safety risk," says Groff. Plus, the conditions inside the vans were inhumane. Passengers had to lie on the floor or stack themselves in the cargo area. "It's not like a family road trip, where you get to get out and stretch your legs."
But Colorado couldn't do much about it. Immigration laws are federal laws, and state troopers patrolling the highways had no authority to question drivers or passengers about their immigration status. If they pulled over a suspected smuggling load, they were instructed to call federal ICE officers, who didn't always show up. If they didn't, the troopers couldn't do much more than issue the driver a traffic ticket.
Human smuggling was a federal crime only.
Groff, a Denver Democrat, decided to change that by introducing a bill that would make it a state crime to smuggle humans through Colorado. Meanwhile, state representative Alice Borodkin was gathering consensus for a bill to do the same for human trafficking — a more serious offense that involves selling people for money, holding them for ransom or forcing them to work against their will, sometimes as prostitutes. Borodkin was helming an all-inclusive task force that had until January 2007 to evaluate the state's current trafficking laws and propose new ones.
But by 2006, paranoia about illegal immigration had hit a new high. Both political parties clamored to pass legislation that showed they were addressing the issue, with Republicans seeking to stop illegal immigrants from receiving public benefits and restrict them from voting, and Democrats pursuing gentler measures, such as punishing businesses that knowingly hired undocumented workers.
According to Borodkin, Republican governor Bill Owens also put out a call to lawmakers for legislation regarding human smuggling and trafficking. Borodkin, also a Denver Democrat, obliged and wrote a bill that would have outlawed both.
But political wrangling caused Borodkin's bill to be split in two, and Groff, then the Senate president pro tem, would end up as the sponsor of both. "Peter and I had a little go-around about that," says Borodkin, who is no longer a state legislator. (Neither is Groff; he's now president of the National Alliance for Public Charter Schools.) "I was pissy because he jumped over my head. But the bottom line is, he got it passed."
To drum up support, Groff spent the morning of the day the bills were introduced in March 2006 patrolling I-70 with state troopers, hoping to see firsthand the types of situations the bill aimed to prevent. When he returned to the Capitol, he had a story to tell: He and the troopers had come across a wrecked van that was carrying seventeen suspected illegal immigrants. That, he told lawmakers, was proof they needed to police the problem. His bill sought to make it a crime to transport an illegal immigrant through Colorado in exchange for money or "any other thing of value," while his trafficking bill made it illegal to sell or barter an adult. He also sponsored a third bill to create a new 24-member division within the state patrol to address human smuggling and trafficking.
All three measures became law. But it wasn't enough for Owens, who called a special summer session to deal solely with illegal immigration. The five-day session resurrected many of the Republican-backed bills that had been quashed by the Democrat-controlled legislature and resulted in ten new laws and two resolutions. When it was over, Owens declared that in 2006, Colorado lawmakers had passed the "toughest immigration laws in the nation."
But they hadn't done so without objections. Claude d'Estree, a University of Denver professor who had been working to combat human trafficking since he first encountered it in 1998 as a prosecutor in the U.S. Attorney's Office in Washington, D.C., was an advisor to Borodkin's task force in 2006. He thought the legislature was jumping the gun in introducing bills to combat smuggling and trafficking before the trafficking task force had finished its work. Once he read the bills — short one-pagers that used simple language — he was even more outraged, and he ended up testifying against them.
"As a former prosecutor, I looked at this and said, 'I wouldn't know how to use this. What am I supposed to do with this bill?'" says d'Estree, now the head of DU's Human Trafficking Clinic. "People said, 'Claude, it's better to have something on the books and then improve it later.' That has never been my view. My sense is that if you craft crappy law, then it has a reputation from that day on of being crappy."
After he was arrested, Jose Chacón-Posada agreed to speak to trooper Patrick Williams without a lawyer. He told Williams that he worked for a company called Paisanos Van Lines LLC out of Houston. He'd been a driver for them for the past two and a half months. The company, he said, was run by three people: Rene, the boss; Chuy, the second in command; and Jesus. One of the three would call him several times a week to see if he wanted to take a trip, driving passengers to destinations around the country and dropping them off. He got paid $600 per trip, plus $500 in expenses.
The passengers had the option of paying Paisanos before they left or paying Chacón-Posada once they reached their destination. Paisanos would give him a trip manifest that listed the passengers' names, their destinations, a phone number to call once they got there and the money they owed. He said he never kept the passengers' money himself; his instructions were to turn it all over to Paisanos.
He even detailed for Williams what Paisanos' offices looked like. He described a room with a desk and a computer in it, and another room where the passengers waited for the van to pick them up. He said Paisanos advertised in the local newspapers.
This particular trip, he said, had left Houston the day before at 10 p.m. The passengers came from Mexico, El Salvador, Guatemala, Honduras and Peru. They were headed to Dallas, Denver, the intersection of two highways in Utah, and Los Angeles. When he was arrested, Chacón-Posada had $497 on him, and he told Williams that $250 of it was paid to him by the passenger he'd dropped off in Dallas.
Williams asked him if he knew whether the passengers were in the United States illegally. Chacón-Posada admitted that some of them probably were but he didn't know which ones. I don't ask questions anymore, he said.
At the end of the interview, Chacón-Posada told Williams that he didn't want to be in any trouble. He was a legal permanent resident of the United States and had lived here since he was a boy, completing nearly all of high school and then earning his GED. He had married a U.S. citizen, from whom he was now separated. This is my only job, he told Williams, and I have two children back in Houston.
Bill Ritter, a Democrat, replaced Owens in 2007, but concerns about immigration didn't go away. In March of that year, Ritter signed a contract with ICE that lawmakers hoped would make it easier for the state patrol's new unit to catch human smugglers and traffickers. Known as a 287(g) agreement after the relevant section of federal law, the deal allowed Immigration Enforcement Unit officers to interrogate people they pulled over for traffic violations about their immigration status, arrest anyone they believed to be in the country illegally, and transport those people to deportation facilities.
The 287(g) agreements were dreamt up by Congress in 1996 as a "force multiplier." Faced with a shortage of ICE agents, Congress amended immigration law to allow local law-enforcement agencies to help police illegal immigration in their cities.
The concept was slow to take off, but as the country's fear and obsession with illegal immigrants grew, so did 287(g). In 2007, the Colorado State Patrol was one of 26 agencies to sign an agreement. There are now 71 agreements in 25 states, including two in Colorado. The other is with the El Paso County Sheriff's Office and is narrower than the state patrol's in that it only allows officers to check the immigration status of inmates booked into the county jail. Denver Mayor John Hickenlooper will replace Ritter as governor in January. In the days following last week's election, Hickenlooper did not respond to Westword's questions about his opinion of the state's human smuggling law and participation in the 287(g) program. But Hickenlooper has said he supports Secure Communities, a federal program that checks the fingerprints of people booked into local jails against a fingerprint database maintained by ICE to identify illegal immigrants. Ritter has been hesitant to sign on to the program, which the federal government says will be implemented in all states by 2013 whether or not local officials are on board. Hickenlooper has said he will join the program if Ritter does not.
But the 287(g) program has drawn criticism from immigrant advocates who see it as a way to make local cops do ICE's dirty work, which they say fosters distrust between undocumented immigrants and the police. If immigrants believe ICE and the local police are the same, they're less likely to report crimes or answer questions. "A lot of people come from places where the police really are bad. This reinforces that belief that it's the same here," says Jennifer Piper of the American Friends Service Committee in Denver.
Last year, the federal Government Accountability Office issued a report calling for better control over the program. The GAO found that ICE wasn't clearly communicating the objective of 287(g) to participating agencies, that it was providing poor supervision and failing to effectively track data related to local arrests and detentions. A few months later, the Obama administration said it would reform the program and issue new contracts that addressed those issues.
But at least one agency never got a new contract. Last October, the feds rescinded their 287(g) agreement with the Maricopa County Sheriff's Office in Arizona under Sheriff Joe Arpaio. Arpaio's department had the same agreement as Colorado, but the sheriff chose to exercise it aggressively. In two years, Maricopa County helped deport more than 26,000 immigrants — which, according to the Associated Press, was about a quarter of the total number of illegal immigrants deported by all 287(g) programs. Arpaio is now being investigated by the federal government for possibly breaking civil-rights laws.
So Arizona took matters into its own hands. Earlier this year, Governor Jan Brewer signed into law the state's infamous anti-immigration bill, SB 1070, which requires police officers to question people they suspect are here illegally about their immigration status. The federal government is now challenging SB 1070 on the basis that it interferes with its authority to enforce immigration policy and would be a burden on ICE.
Opponents of the Arizona law say it will also lead to racial profiling — which has been a complaint about 287(g) in Colorado.
"They're just picking people up," says Eddie Soto, executive director of El Centro Humanitario in Denver. "The original state law said they wouldn't act as ICE, but that's basically what they've been doing." Soto says many of the arrests he's heard about are for minor infractions, such as a broken taillight.
Carl Rusnok, the spokesman for ICE's central region, says that while the main focus of 287(g) is to arrest criminal aliens, "We also place into deportation proceedings non-criminal alien immigration violators." In response to written questions from Westword, he added, "Although ICE priorities are focused on criminal aliens, we cannot turn a blind eye to others we encounter who are in the country illegally."
But state patrol spokesman Sergeant John Hahn denies that scores of undocumented drivers are being detained, and recoils at the suggestion that the Immigration Enforcement Unit is essentially "Colorado's ICE."
Instead, he says, the program is used solely to add teeth to the state's smuggling and trafficking laws, and that troopers are trained to mitigate racial profiling. Unlike ICE, he says, state patrol officers can only question people they encounter during the course of their normal traffic-enforcement duties.
Arrest statistics give a glimpse into how often they exercise their authority. The unit hit the highways on July 1, 2007, and the first six months were the busiest. In that time, troopers held, detained or arrested 612 aliens. Of those, they turned 188 over to ICE. The rest were released, says Colorado Department of Public Safety spokesman Lance Clem, because ICE didn't have enough space in its detention facilities.
After that, the numbers decline. In 2008, the state patrol processed 571 aliens, turning 374 of them over to ICE. The next year, the numbers dropped to 521 and 221. The patrol's most recent report, which spans the period from April to June 2010, shows that troopers processed 103 aliens in that time. Of those, 24 were turned over to ICE.
"Very nearly all" of the aliens the troopers process and turn over to ICE are passengers in smuggling loads, Hahn says, though he doesn't have exact numbers. As for how many smuggling loads troopers encounter, the statistics show that in the first six months, they investigated 28 possible loads and made thirty arrests or detentions. (Troopers sometimes make more than one arrest related to the same smuggling load.) The following year, in 2008, troopers investigated another thirty smuggling loads and made 23 arrests. And in 2009, troopers investigated 44 loads and made 16 arrests.
Clem says it's hard to draw conclusions about the unit's effectiveness from the statistics. Though troopers appear to be investigating more possible smuggling loads, they are making fewer arrests. Statistics also show that the number of smuggling cases filed in court is decreasing. Clem says that could be due to several factors. For instance, the Immigration Enforcement Unit could be seeing a spike in potential smuggling cases reported by non-287(g) troopers that, once investigated, turn out to be duds. Or, he says, it could be that many of the potential smuggling cases they're seeing are less clear-cut.
Ultimately, that's not the best measure of whether the unit is working, he adds. "It's not a matter of how many tickets you write all the time or how many prosecutions you pursue. It's more a case of, are passengers and drivers safer on the highways?"
And, in fact, a search of news archives turns up only one fatal van crash involving illegal aliens since the 287(g) unit started patrolling: a July 2007 wreck in Eagle County that killed four.
Clem attributes this to a deterrent effect; he says troopers routinely hear from the smugglers that they've been warned about Colorado's strict enforcement.
It's harder to gauge whether the unit is discouraging human trafficking, in part because the numbers are so small. In 2008, the state patrol investigated only two trafficking cases. In 2009, that number was three. Hahn says it's because trafficking is a so-called destination crime. It often isn't until the immigrants reach their destination that they're held for ransom, forced into prostitution or made to work without pay.
But by stopping smuggling, troopers are also preventing trafficking, Hahn says. "Any time we intercept a human smuggling crime while it's in progress, while it's traveling through this state, we've saved someone who would have found themselves in that (trafficking) situation when they reach their destination."
After his interview, Jose Chacón-Posada was booked into the Lincoln County Jail. The sixteen immigrant passengers were taken nearly 200 miles west to the Park County Jail, which doubles as an ICE detention facility. Three days later, on November 29, Chacón-Posada was taken to the Lincoln County courthouse, a part-time operation in the tiny town of Hugo, for a formal advisement of the charges against him. He didn't yet have a lawyer.
But the state prosecutor was there, and she told the judge that she wanted to take depositions of the passengers right away because she was afraid they'd be deported before a trial could take place — which would leave the state with little evidence against Chacón-Posada. Depositions, in which lawyers on both sides question witnesses just like they would at trial, can be used in place of a witness testifying in front of a jury in cases in which a witness is expected to die before trial or has a compelling excuse.
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.
Having no witnesses also denies the defendant possible evidence of his innocence. "I think the bulk of witnesses are going to say, 'I talked to somebody else in another state, and this poor guy was just giving us a ride,'" says public defender Wilson. "The guy driving the van is driving the van. He's not the kingpin."
Of the five human-smuggling cases that have gone to trial in Colorado since 2006, one resulted in an acquittal, one resulted in a conviction, and two were dismissed by judges for lack of evidence. In the last case, which was scheduled to go to trial August 3 in Summit County, the judge allowed the prosecutor to cut a last-minute plea deal with the defendant after she realized her best piece of evidence — the defendant's videotaped confession — would be inadmissible because it was in Spanish, and courthouse interpreters said it was too difficult to be accurate when translating from a video.
Most smuggling cases end in plea deals. Thus far, eighteen defendants have pleaded guilty to human smuggling. The same number have pleaded guilty to attempted smuggling, a lesser felony. The rest of the cases were either dropped, or the defendants pleaded guilty to much lesser crimes, such as criminal impersonation, trespassing or false reporting. Their sentences vary widely. In a few cases, the deals call for the smuggler to actually do time. But in more than half, the sentence is suspended on the condition that the smuggler, often an illegal immigrant himself, agrees to be deported and never return.
"They'd rather plead to a felony and head back home," DA Swanson says. "If they call our bluff, everyone knows we're going to lose because our witnesses are gone."
Take Humberto Martinez-Vieyra, who was charged with eight counts of human smuggling after a trooper pulled him over for swerving on I-70 on August 23, 2007. The trooper found twelve people crammed into the vehicle; Martinez-Vieyra gave the trooper a fake name and driver's license and then attempted to run when the officer's back was turned.
He was arrested, and the passengers were taken into ICE custody. Court records show that five were deported within five days. Prosecutors attempted to depose the remaining witnesses, but it's not clear whether that happened. Martinez-Vieyra, an illegal immigrant himself, pleaded guilty to one count of attempted human smuggling and forgery. He was given a sentence of one year in jail and three years in prison, which was suspended on the condition that he didn't return to the United States.
In another case, Jorge Martinez-Pena was arrested in October 2009, after troopers responded to a crash near the town of Deer Trail. Of the eleven passengers whom Martinez-Pena had been driving to Indiana and Missouri, three were injured and taken to the hospital; the rest were picked up by ICE. Martinez-Pena, a 28-year-old Mexican living in Phoenix, was arrested and charged with ten counts of human smuggling and three counts of careless driving. After spending seven months in jail, he pleaded guilty to careless driving and was released that day into the custody of ICE.
In a third case, Gopsalo Jose-Reyes was arrested by the Wheat Ridge police in April 2007, after the van he was driving stopped at a King Soopers so his ten passengers could use the restrooms to wash up. The store's security became suspicious and called the police. Though Jose-Reyes was charged with human smuggling, he eventually pleaded guilty to criminal impersonation and was sentenced to eighteen months in prison; six months of that sentence were suspended as long as he did not return to the U.S.
Though there are special federal visas that state prosecutors can apply for — with law enforcement's help — to keep undocumented victims in the country as witnesses, many say it's not clear whether the so-called U-visas apply to victims of human smuggling. The law lists several other applicable crimes, such as rape, kidnapping and human trafficking, but doesn't mention smuggling by name. As such, none of the prosecutors interviewed for this story say they've ever tried to obtain such a visa.
"It's hard to see folks being smuggled as victims. Obviously, they're paying the money and they want to be here," says Scott Storey, the district attorney for Jefferson and Gilpin counties. "I don't know if it's a good fit."
Most state prosecutors say all of these complications leave them feeling ill-equipped to handle human-smuggling cases. "The state wants us to prosecute these laws, which I feel are heinous crimes. That's great, but we need the mechanisms to do it," prosecutor Wilson says. "It's frustrating for a prosecutor like me who feels passionate [about this issue] and I can't do all that I can."
Pueblo County District Attorney and former state senator Bill Thiebaut puts it more bluntly: "I think the legislature, unfortunately, was looking at this law, and perhaps other laws at the time, not so much with the sensitivity of actually how they're going to be enforced, but rather giving the impression that some movement meant positive results were going to be accomplished for citizens on this very hot political issue."
Groff, the bills' sponsor, doesn't deny that. At the time he proposed the bill, he says, "I don't think I made the next step of once this is enforced, once somebody is arrested, how difficult would it be? I didn't know what would happen once implementation rolled out. I didn't think that far."
On the day of Jose Chacón-Posada's scheduled trial, his attorney tried to convince a judge that the depositions of the ten passengers should be thrown out. He called them "an affront to our justice system" and said the fact that he was given only twelve hours to prepare was a violation of Chacón-Posada's right to due process.
State prosecutor Patrick Cahill argued the opposite.
Judge Douglas Tallman seemed confused. "It seems to me," Tallman said, "that there's got to be a mechanism to allow the state to have these witnesses available at least for a time in these circumstances if they want to prosecute these kind of cases."
He added, "I think the legislature needs to look at this a little more closely and make some different accommodation for handling these types of matters, given the urgency...of the way things happen in the immigration world."
Tallman didn't rule right away, and the trial began. In his opening statements, defense attorney Ward told the jurors that his client was a simple bus driver, not a coyote. "He was driving along a highway in this jurisdiction with a van full of individuals no different than anyone driving a van for Greyhound, flying a plane or driving a taxi," he said. As far as Chacón-Posada knew, Ward said, the van company was legitimate.
"Mr. Chacón-Posada is not required by law to look at the immigration status of every person in his van," Ward continued. "Sure, there are a lot of brown people speaking Spanish in his van, but that's not his requirement — no more than a Greyhound bus driver — to check the papers and the passports."
After the opening statements, Trooper Nall took the stand followed by Trooper Williams. Both described their involvement in the case. On cross-examination, Ward quizzed Williams about a trip manifest that listed Chacón-Posada as a driver and the front-seat passenger, America Washington, as the "second driver."
"In your entire interview with Mr. Chacón-Posada, you never asked any questions about Ms. Washington, is that correct?" Ward asked Williams.
"That's correct," Williams said.
After Williams testified, the judge dismissed the jury for a two-hour lunch break in order to rule on the question of the depositions. He ended up throwing them out. "The court finds that the defendant's rights had been violated," Tallman said.
Tallman's ruling made the trial much shorter, and both attorneys gave closing statements the next morning. Cahill asked jurors to consider the credibility of the officers who arrested Chacón-Posada. "I would ask you to consider whether you believe there is any reason that they would have invented this, made this up," he said.
Ward, meanwhile, tried to differentiate between the stereotype of human smuggling and the details of Chacón-Posada's case. He also hinted that racism and illegal-immigration hysteria may have played a role in his client's arrest. "America Washington, who is African-American, the only non-Hispanic in this operation, who is listed as a driver on the trip manifest, is let go," he said. "Does that seem odd to you?"
The jury took seven hours to return a verdict. At 5:30 p.m. on November 26, 2008, exactly a year after Chacón-Posada was arrested, the jury found him not guilty of human smuggling. They did, however, convict him of speeding and driving without a license. The judge sentenced him to a few months in jail but gave him credit for the time he'd already served, which meant he was released on the spot.
He was free, but he was also stranded. The cops had confiscated the $497 he was carrying when he was arrested, making it impossible for him to buy a ticket home to Texas. So Ward drove Chacón-Posada to his home in Denver that night and put him up in his spare room. The next day, he bought him a one-way plane ticket home.
Later that evening, Chacón-Posada called Ward's cell phone. He was "almost in tears because he had surprised his daughter, who hadn't seen him for a year, " Ward says. "They had been telling the daughter that he was away on business. [When he came home], she kept telling him to pinch her arm because she thought he wasn't there."