WOODSTOCK — A Crystal Lake man being held in jail on drunken driving charges and an immigration hold is asking a judge to dismiss his criminal charges, claiming he is being unlawfully held after posting bail weeks ago.
Pascasio Martinez, 34, is arguing that his fourth and eighth amendment rights are being violated by Sheriff Bill Prim because he has not been released from the McHenry County Jail, while others who have immigration holds and pending criminal charges have.
The motion was filed by his defense lawyer, George Kililis, in McHenry County Court on Wednesday.
“Mr. Martinez has suffered irreparable harm to his fundamental right of freedom based on a standard that has no rational basis in law or fact, is arbitrary, capricious and discriminatory,” Kililis said in the motion. “Continued prosecution of Martinez under these circumstances would allow the government to violate the Equal Protection clause with respect to the most fundamental right of all, the right to freedom, with impunity and without fear of consequences.”
Kililis argues that Judge Sharon Prather has the authority to dismiss charges if the failure to do so could result in a deprivation of due process or a miscarriage of justice, according to the motion. A miscarriage of justice is defined as a failure of a court or judicial system to attain the ends of justice, especially one that results in the conviction of an innocent person.
Gov. Bruce Rauner signed the Trust Act on Aug. 28, a measure prohibiting local and state police from searching, arresting or detaining a person simply because of their immigration status. Previously, jails across the state could hold a defendant on an immigration detainer, now the state law requires a federal warrant signed by a judge.
Despite this law, McHenry County families have been told by jail officials that their loved ones would be deported if they posted bond.
Martinez was arrested Aug. 31 on a felony aggravated driving under the influence charge and misdemeanor DUI charges.
Susana Garcia Velasco and her mother, Cristina Velasco, went to the McHenry County Jail to post bond for Martinez on Sept. 7, but they were told immigration officials would be immediately contacted once bail was posted.
After waiting several hours, bail eventually was posted, but Martinez was not released. He then was taken in the middle of the night the next day from the jail to a U.S. Immigration and Customs Enforcement detention facility in Chicago, according to the motion. He since has been taken back to the McHenry County Jail.
The county long has rented space on the third floor of the jail to ICE and the U.S. Marshal’s Office.
“Martinez is still currently being held in the jail of McHenry County, despite posting the necessary bond, for the benefit of the federal government, without a judicial immigration warrant, or other applicable exception,” Kililis said in the motion.
About one week later, Mario Lopez-Alatorre, 43, who was charged with felony residential burglary Sept. 4, posted 10 percent of his $60,000 bond and was released about 30 minutes after, according to court documents.
Lopez-Alatorre also had an immigration hold, according to jail records.
Kililis also claimed in his motion that other defendants in similar situations have been released after posting bail despite having an immigration hold.
Prim has declined to comment on why Lopez-Alatorre was released, citing pending litigation, and has not spoken publicly about the matter since a statement released Sept. 1.
“We have a public act less than a week [old] with a sweeping effect that has yet to be interpreted by any court,” the statement read. “Our objective at this point is to move slowly and cautiously with public safety as our foremost consideration, consistent with constitutional responsibilities.”
The Equal Protection clause states that the government must treat similarly situated individuals in a similar fashion unless they can demonstrate an appropriate reason to treat them differently.
Kililis argued that Prim’s prior statements about the Trust Act contradict the fact that Lopez-Alatorre was released on bail on a residential burglary charge, a felony charge more serious than aggravated driving under the influence.
“If the sheriff’s concerns about denying immediate release to Martinez are as announced, then they should hold with equal or more force to Lopez, as his crime of violence was much more serious than Martinez,” Kililis said. “Yet Lopez was released and is now free, while Martinez was not released, and instead turned over to the custody of ICE.”
Prosecutors have two weeks to file a response to the motion to dismiss. The matter will be argued Oct. 18.