A trial that was set to begin this week in the case of an Arizona man accused of sexually assaulting an undocumented woman during a human-smuggling attempt last December was postponed but not cancelled after Superior Court Judge Thomas Fink denied a county prosecutor’s motion to dismiss the charges.
Deputy County Attorney Charlene Laplante, who assumed responsibility for the prosecution of 44-year-old Sergio Alfredo Bernal in April, filed a motion to dismiss the charges without prejudice on June 5, meaning they could conceivably be brought again.
Laplante cited problems in bringing the alleged victim, who was voluntarily deported to Mexico in February, back to the United States to testify against Bernal, as well as delays at the state crime lab in processing key evidence in the case.
“I have no way to get (the victim) into the country without the (HSI) parole,” Laplante said during a court hearing on Thursday, June 6, in reference to a Homeland Security Investigations program that allows people otherwise ineligible for admission to the United States to enter the country temporarily to support law enforcement investigations.
In addition, swabs collected from the victim during her sexual assault examination had not been fully tested for DNA results at the state police crime lab, Laplante said, and she had yet to receive a time frame for receiving the complete results.
But Fink denied the request to dismiss, citing rules meant to protect the rights of victims.
“I can’t dismiss this case like that. It would be a very serious, substantive violation of this lady’s rights. I can’t grant the motion because there’s been noncompliance with the statute,” Fink said, referring to Arizona law that calls for a victim to be notified at least five days prior to a scheduled hearing – something that was not possible given the late filing of the motion.
Instead, Fink scheduled a status hearing for Tuesday, June 11, and postponed the trial, which had been scheduled to start that day, to June 27.
By the time of the June 11 hearing, there were new prosecutors on the case. Laplante, who had taken over for former Deputy County Attorney Vanessa Cartwright after Cartwright resigned to become Nogales city magistrate, had given way to Deputy County Attorneys Kimberly Hunley and Liliana Ortega.
Victim in court
The state’s charges against Bernal stem from the victim’s allegation that he sexually assaulted her on or about Dec. 15 and 16, 2018, while he was the caretaker of a stash house for undocumented immigrants in Nogales. He is accused of one count of sexual abuse, a Class 5 felony, and five counts of sexual assault, Class 2 felonies.
In a concurrent federal case, Bernal also faces four counts of harboring illegal aliens for profit and one count of conspiracy to transport and harbor illegal aliens.
At the June 11 status hearing on the state charges, Hunley and Ortega managed have the victim present in court, saying HSI had gotten her parole approved for the new trial dates of June 27 through July 3.
“(We were) told that the delay was occasioned by the furlough, resulting from the government shutdown and they were backed up, and that was the reason why it was so last minute,” Hunley told Fink. “I’m told that if the trial date changes later, it will be much easier to correct it because now everything is accomplished.”
With one of the problems resolved, Hunley and Ortega told the judge they wanted to withdraw the state’s motion to dismiss, but added that the DNA evidence still hadn’t been completely processed by the crime lab.
“(Ortega) was told that it would be six to nine months until they could have a result and that they were unable to accelerate that timeline,” Hunley said.
Before the state can seek an expedited result from another lab, Hunley said, defense attorney Mark Larkin would need to give his permission to use the swab evidence, which federal prosecutors are also interested in pursuing in regard to the smuggling charges.
However, Larkin said that he is working with the defense attorney in the federal case to ensure the best representation for Bernal, and neither had agreed to give permission yet.
“If we do go ahead with (June 27), I would ask that any partial DNA that is available be excluded because we don’t have any way of really being able to discuss that with an expert,” Larkin said.
Without Larkin’s permission to use the swab evidence, Hunley argued that it would be impossible to meet the deadlines for the June 27 trial. However, she also noted the need to go to trial soon for the benefit of the victim, who is living temporarily in Nogales, Sonora as she awaits the outcome of the case.
“Right now she’s living in, I’m going to call it a little shack, with her son. It’s very difficult for her monetarily and because she has a family back home, very much in the interior of Mexico,” said Roberto Montiel, who is serving as the victim’s attorney.
Fink scheduled another hearing for Monday, June 17, to discuss updates in the processing of the DNA evidence and considering the possibility of going forward with the June 27 trial date.