In Inside Courts, retired judge Tom Hodson explains the complexities of the law and legal cases, helping you understand what’s at stake — and how it affects you.
At approximately 8:30 a.m. Wednesday, Oct. 29, Immigration and Customs Enforcement took custody of two brothers being held in the Southeast Ohio Regional Jail on bond for felony cases in the Athens County Common Pleas Court.
ICE removed the defendants to federal custody in Butler County, Ohio.
The two are Victor Laverde Laguna, 60, and his brother, Gregory Javier Laverde Laguna, 50. Gregory has developmental disabilities. Both men have dual citizenship in Venezuela and Columbia, and both had requested asylum in the United States.
The snatching of the defendants by ICE from the Nelsonville jail was done while charges are pending against them in the Athens County Court of Common Pleas, and without the permission of the presiding Judge Patrick Lang.
This has caused speculation as to who is responsible for the federal grab. A flurry of motions concerning the status of the Athens County cases has followed.
Athens County Prosecutor Keller Blackburn’s office attempted to clear the way for the ICE grab Oct. 28 by filing motions to modify bond and Oct. 29 filing motions to dismiss the state’s cases.
However, the prosecutor’s motions to dismiss were not filed with the Athens County Clerk of Courts until several hours after ICE had already taken the defendants.
There was no court order signed by the judge either reducing the bonds or dismissing the cases. Mere motions do not have the effect of court orders — so there was no judicial authority for the release of the defendants.
Judge Lang officially spoke Tuesday, Nov. 4 through written Journal Entries and Orders filed in both cases. He states that before the cases can be dismissed, there must be a hearing with the defendants present and the alleged crime victim being notified.
He has scheduled that hearing for 11:30 a.m. Wednesday, Nov. 12, and has ordered the prosecution to make sure that the defendants are back in Athens to attend the hearing.
Case background
Victor Laguna and Gregory Laguna were arrested Wednesday, Sept. 24 as part of a sting operation focusing on the alleged bilking of nearly $100,000 from an elderly Athens County resident.
In court papers, the brothers claimed that they were just paid couriers for a third party, and they had no idea what they were transporting. Neither of the men speak or read any English.
Victor was charged with two felonies: attempting to commit theft from the elderly and attempted theft by deception. Gregory was charged with one felony of an attempt to commit theft from the elderly.
Victor is represented by court-appointed attorney Scott Petroff and Gregory is represented by Tracy Meek, an Athens public defender.
Victor’s counsel argues that both men cooperated with authorities after their arrests and Victor gave a video tape interview.
Attorney Petroff states in a court filing, “Victor immediately cooperated and provided a statement to law enforcement. That video recorded statement makes clear that the brothers lacked the requisite mens rea for the offense of theft.”
Mens rea just means “mental state” or “state of mind.” He argues that the brothers lacked the mental element to commit the crime of theft. The mental element for theft is “knowingly.”
“Knowingly” means that a person is aware that certain conduct would probably cause a certain result. In short, Petroff argues that the brothers could not have been aware that their conduct would have created the crime of theft because they were just couriers.
Both defendants pleaded not guilty to the charges and the court set bond Oct. 1, Victor at $100,000 and on Gregory at $40,000, saying they could post 10% of those amounts to be released.
Bond is the amount that a defendant needs to post with the clerk of courts to be released from custody. If bond is not posted, the party remains in jail until the case is resolved.
For nearly a month, both defendants were in the Southeast Ohio Regional Jail while their cases progressed. Neither was able to post bond.
Then on the morning Monday, Oct. 27, the prosecutor’s office filed motions to modify both defendants’ bonds. Assistant Prosecutor Ashley Johnson asked the court to release both defendants without the necessity of any cash bond. That is called “release on their own recognizance” — meaning release on their promise to return for future court proceedings.
If the defendants had been released, ICE would have had an immediate opportunity to arrest and detain both defendants.
However, at conference held Oct. 28, Judge Lang did not reduce the bonds. He set the matter for an overall status conference with all the attorneys, and all the parties present, for Nov. 12.
In short, Judge Lang still had jurisdiction over the cases, and the defendants were still being held in lieu of paying their original bonds.
Despite that, on the morning of Oct. 29, ICE took custody of the two brothers from the Southeastern Ohio Regional Jail and whisked them off to Butler County to be held for immigration purposes.
In doing so, ICE ignored the local court’s jurisdiction, bond order, and the entry scheduling a future hearing.
On the same day, the prosecution filed motions to dismiss all charges against the defendants — but these were filed after both defendants had already been spirited away by ICE. It is like closing the barn door after the horse had already been taken away.
Both defendants demanded hearings on the motions to dismiss saying the prosecution cannot unilaterally just dismiss a case. Criminal Rule 48 dictates a procedure to be followed if the prosecution seeks a dismissal.
A case cannot be dismissed without a court hearing with the defendants present and the alleged victim of the crime notified of the hearing.
The public defenders and attorney Petroff filed motions Oct. 30 for continuances and objections to the court taking any immediate action of the state’s motion to dismiss.
Both counsels argued that a dismissal without a hearing would violate Ohio’s Criminal Rules of Procedure, would infringe on the defendants’ constitutional rights and might also jeopardize their immigration status.
Judge Lange said Nov. 4 that the court would have a hearing on the original Nov. 12 date and that the state must follow the Criminal Rules and produce the defendants to be present for the hearing.
Questions remaining
These cases appear to be far from over and many questions remain.
What role, if any, did the Athens County Prosecutors Office and local law enforcement have in allowing ICE to take custody of the brothers, even though local felony charges are still pending and Judge Lang had not released them?
Since ICE so flagrantly took custody of the Laguna brothers — even while they are subject to local court orders and bonds and their cases are still pending in a state court — will ICE return them from Butler County for their appearances Nov. 12?
If ICE does not return the prisoners for further court action, what are Judge Lang’s options? Could he hold parties who do not comply with his Nov. 4 order in contempt of court?
These questions remain unanswered as we wait to see what happens 11:30 p.m. Nov. 12 in Judge Lang’s courtroom.
It should be very interesting.
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