Usually a change-of-plea hearing is a dry affair.
The judge makes sure the defendant is pleading guilty voluntarily, he reels off a bunch of legalistic phraseology, and the deal is signed off. The prosecutor may dismiss a charge or two in exchange for the defendant admitting to another crime and accepting some prison time.
Itâs a routine affair in any criminal court.
But that hasnât been the case several times recently in a certain Nogales courtroom. Santa Cruz County Superior Court Judge Thomas Fink has decided he will no longer approve plea agreements that dictate a prison term for the defendant in cases that originated with arrests by federal agents, the Nogales International reported May 27.
By doing so, Fink is taking a stand on an issue that has long rankled some border-county officials: Why should county and state taxpayers cover the costs of prosecuting someone who was arrested by federal agents committing a federal crime, in many cases at the international border?
Most of these cases are drug-smuggling arrests from the ports of entry at Nogales or the Border Patrol checkpoint on Interstate 19. Federal prosecutors may decline them because theyâre small or a little complicated â as when drivers are carrying drugs but thereâs no confession to rely on and a question as to whether they knew the load was there.
In a series of cases May 23, Fink, a former federal prosecutor, turned down plea deals because they were cases the U.S. Attorneyâs Office had declined that were picked up by Santa Cruz County prosecutors, the International reported.
âThis is another case that was declined by the federal government, the U.S. Attorneyâs Office,â Fink said at change-of-plea hearing for Maria Santiago Quintero, caught at the port with 24 pounds of cocaine hidden in her dashboard.
âThe court is going to reject the sentencing provision in the plea. The court does not believe itâs appropriate to tie the courtâs hands in sentencing in this matter to require a prison-only plea when this matter is a federal declination of what is, in reality, and should be a federal case.â
The U.S. Attorneyâs Office declined to answer my questions about the issue Friday, and Fink declined to explain his position further. But he brought this issue up in his 2014 campaign and itâs obviously something heâs thought about during his career. He was a federal prosecutor for 14 years in Tucson before becoming a criminal defense attorney in Santa Cruz County in 2003.
Itâs been a hot topic for decades, Cochise County Attorney Brian McIntyre and Santa Cruz County Sheriff Tony Estrada told me Friday.
In fact, McIntyreâs predecessor in the Bisbee prosecutorâs office, Ed Rheinheimer, vigorously declined to accept any federal cases, considering it their job, not his.
McIntyre, who was a prosecutor under Rheinheimer, has taken the opposite tack, especially when it comes to Mexican juvenile smugglers.
Under federal law, juveniles caught smuggling drugs were usually returned to Mexico without much consequence, which led traffickers to continue using them for smuggling.
McIntyre and the federal prosecutors arranged for Cochise County to take those cases, prosecute them under state law, and turn them into adult cases. That way, the kids would feel a consequence and traffickers would stop thinking kids were an easy vehicle for smuggling loads.
âThe federal government has the money, the resources, the manpower and the obligation to handle and provide consequences in this area,â McIntyre said. âHowever, if they donât, I was born and raised here. Itâs my county. If thereâs a problem, Iâve got to help fix it.â
âThe taxpaying citizen expects government to work. They donât care if itâs county, city or federal.â
George Silva, McIntyreâs counterpart in Santa Cruz County, made much the same argument when we talked Friday: If the feds donât prosecute a given case, then itâs up to him to ensure some consequences are brought. And in his county, those cases add up to hundreds per year, meaning costs such as jail, judges, court interpreters and probation officers are covered in good measure by the local residents in a poor county.
âI have a responsibility to prosecute crimes committed in my community,â Silva said. âIâm not necessarily looking at all the financial aspects of a prosecution.â
In Pima County, local prosecutors took up 85 cases last year that were originally federal cases.
Longtime Santa Cruz County Sheriff Estrada has seen the phenomenon since he started his law-enforcement career in Nogales decades ago.
âBack in the â70s, we were happy to take these cases. There werenât so many of them,â he said Friday.
âIf the U.S. attorney doesnât want it because itâs not on a silver platter, theyâre doing an injustice,â Estrada went on. âThe last thing they should think about is handing it to a poor county.â
Federal prosecutors may turn down prosecuting a given drug case for many reasons. One of them, McIntyre said, is that the feds are trained to work upward in a smuggling organization, not worrying much about the grunts who carry the loads.
And border counties do get some help: Silva, for example, has one prosecutor, a detective and a legal assistant whose salaries are paid for through federal grants. But of course, the prosecutionâs costs arenât the only ones in any given case, and thereâs no reason local taxpayers should be asked to carry this load financially.
If weâve got so many federal agents that there arenât enough federal prosecutors, probation officers and judges to handle the cases they produce, then we need to increase their numbers, too.
That, or make sure the feds pay back the local officials for every cent they spend on federal cases, and that the local prosecutors are using their leverage to make this happen. Even if it means turning down some federal cases.
