judge frees illegal alien accused of rape

[brassmonkey]

Guatemalan immigrant charged in Omaha with statutory rape disappears after posting $5,000

Same judge. Same courtroom.


Similar background of defendant: An immigrant from a Central American country charged with a serious crime in Omaha.

Same $5,000 needed to get out of jail, pending trial.

Same result: A defendant who has since disappeared.

Authorities are scrambling after another immigrant defendant posted bail, was released from the Douglas County Jail, skipped his court appearance and hasn't been found since.

On Feb. 16, Douglas County Judge Jeffrey Marcuzzo set bail at $5,000 cash for Gabino Vargas-Perez, a Guatemalan immigrant who authorities say is here legally.

Douglas County prosecutors had charged Vargas-Perez, a 20-year-old former Central High School student, with statutory rape of a 14-year-old fellow student.

Someone posted the $5,000 cash on Vargas-Perez's behalf - and he left jail on Feb. 21. He then didn't show up for a March 13 preliminary hearing.

It's the second time in a year that someone has skipped a court appearance after Marcuzzo set cash bail $5,000.

Marcuzzo, who was up for retention in November, survived after an effort to oust him by the parents of a Council Bluffs woman, Sarah Root, who was killed by a drunken driver in South Omaha.

In February 2016, Eswin Mejia, a 20-year-old from Honduras, didn't show up for a court-ordered sobriety test after posting $5,000 cash and being released from the Douglas County Jail. He has not been found since.

Mejia's crime and his subsequent release became a focal point of Donald Trump's successful presidential campaign. Trump decried Mejia's presence in the United States - and complained that Immigration and Customs Enforcement didn't place a jail hold on Mejia, an illegal immigrant.

Thursday, a reporter approached Marcuzzo so the judge could sign a form allowing the news media to listen to Vargas-Perez's February bail hearing.

The judge asked the nature of the case. A reporter reminded him he had set Vargas-Perez's bail at 10 percent of $50,000, that Vargas-Perez was from Guatemala, was charged with statutory rape and has reportedly disappeared.

Marcuzzo shook his head.

"Another one?" he said.

He then asked what prosecutors had said.

According to a digital recording of the hearing, Deputy Douglas County Attorney David Wear informed Marcuzzo that Vargas-Perez "is from Guatemala," cited "the serious nature" of the charge and laid out the facts of the case:

The 14-year-old girl said she met Vargas-Perez shortly after school started this past fall. She said he had told her that he was 16. Some time in October, he asked her to come home with him and meet his family.

When they arrived at his guardian's house in northeast Omaha, Vargas-Perez led her upstairs. She gave two different versions to police of what happened from there.

In the first interview, she told police that he forced her to take off her clothes and forced himself inside her while she said no. In the second, she said she fell asleep on his bed and woke up to him raping her - and she told him no and that it hurt.

In either scenario, prosecutors alleged, Vargas-Perez is guilty of first-degree sexual assault of a child. Under state law, it is illegal for anyone 19 or older to have sex with anyone under the age of 16.

Vargas-Perez's immigration status is not as clear as Mejia's was.

Mejia's case generated controversy after authorities acknowledged that they knew, upon his arrest, that Mejia was in the U.S. illegally. Yet Mejia wasn't detained because of an Immigration and Customs Enforcement policy that prioritized detention for illegal immigrants who are convicted of a felony, not simply arrested.

When it comes to Vargas-Perez, Douglas County Attorney Don Kleine said, ICE officials have since told prosecutors that Vargas-Perez is legally in the country. Kleine said he didn't know the nature of that status - whether it was because he has a work visa or another form of documentation.

Court documents indicate that Vargas-Perez, then age 16 or 17, suffered "neglect and abandonment by his parents."

His "parents were unable to provide (for) the minor child and his 14 siblings," according to a court document.

So he fled Guatemala for the United States, the court document said.

Whether Vargas-Perez was here legally or not, Kleine said he has concerns about the bail amount Marcuzzo set for a charge that carries a penalty of up to 50 years in prison.

Kleine noted that other first-degree sexual assault charges have garnered significantly higher bail amounts, such as current cases against former Creighton basketball star Maurice Watson Jr. and former Omaha Public Schools teacher Daryl Clark.

Watson's cash bail was set at $75,000.

Clark's original cash bail was $250,000. The judge who set it? Marcuzzo.

Kleine said he didn't have ready numbers for a typical bail amount in a statutory rape case.

Kleine said judges have to weigh the seriousness of the charge, the possible motivation to flee and the defendant's ties to the community.

Judges say they are only as good as the information presented to them at such initial court appearances.

Marcuzzo knew nothing about Vargas-Perez before that 2-minute, 10-second hearing. Vargas-Perez answered the judge's questions in Spanish, and an interpreter translated for him.

Vargas-Perez's public defender told Marcuzzo that Vargas-Perez had been living with a grandparent for three years in Omaha and had worked for a local bread company for the past year and a half.

Marcuzzo asked court officials for a pretrial release score - which measures a defendant's criminal record and his likelihood to flee.

The court officials told the judge they had no information to share.

Wear, the prosecutor, offered that Vargas-Perez was from Guatemala and noted the "serious nature of the case."

Kleine said the judge had enough information to set a higher bail. When in doubt, Kleine argued, judges should err on the high side - defendants can always request another hearing and ask for a bond review, he said.

"Obviously, it wasn't sufficient in this case," Kleine said. "This is a very serious charge. With him being from another country, there certainly is that risk that somebody might leave the jurisdiction."

Kleine said the Omaha Metro Area Fugitive Task Force is actively looking for Vargas-Perez.

And they're still looking for Mejia.

"This creates a lot of work for law enforcement," Kleine said. "Once again.

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