Pubdate: Thu, 10 May 2007
Source: News & Observer (Raleigh, NC)
Copyright: 2007 The News and Observer Publishing Company
Author: Sarah Ovaska


A 05 Photo Of The Mexican Man Sealed A Plea Deal That Freed Him Last Week

RALEIGH - A Raleigh-based Drug Enforcement Administration agent had a 
Mexican suspect put on a sombrero and hold a Mexican flag and then 
took his picture, the suspect's attorney said.

The defense attorney, Jeff Cutler, said a prosecutor and law 
enforcement officers confirmed the existence of the 2005 photograph 
of Jorge Hernandez-Villalvazo during a pretrial meeting last week. 
Within minutes, the prosecutor offered a plea deal, avoiding a trial 
and freeing Hernandez-Villalvazo.

Cutler said the disclosure of the photo "was the driving force behind 
that plea deal." Hernandez-Villalvazo left the Wake County jail 
Friday, two years after his initial arrest on a charge of conspiring 
to traffic cocaine. "They humiliated him," Cutler said.

Wake District Attorney Colon Willoughby, whose office handled the 
case, said taking the photo was a mistake. "It shouldn't have 
happened," he said. DEA officials on Wednesday would not identify the 
agent or release the photo. "DEA is looking further into the matter," 
spokeswoman Ruth Porter-Whipple said from Atlanta.

The incident took place shortly after the arrest of 
Hernandez-Villalvazo, 41, in April 2005. Hernandez-Villalvazo, a 
native of Mexico who has permanent U.S. residency, had been living in 
the Zebulon area and buying cars that he took to Mexico to sell, Cutler said.

A Wake County sheriff's detective, working alongside DEA agents as 
part of a task force that tackles large-scale drug-trafficking 
networks in the Raleigh area, headed the investigation that ensnared 
Hernandez-Villalvazo. The investigation relied on court-ordered 
wiretaps of several phone lines. Hernandez-Villalvazo was one of 
seven defendants arrested. Two others have pleaded guilty and are 
willing to testify, according to court records. Three are still at 
the Wake County jail awaiting trials. One other, Noe Mendoza Ramirez, 
has been released pending his trial, although his attorney, James 
Bell, suspects he returned to Mexico.

No cocaine was ever seized from Hernandez-Villalvazo, Cutler said. He 
said his client turned down a previous plea deal for a three-to 
four-year prison sentence because he was innocent.

Cutler's client had told him about the picture shortly after his 
arrest, but Cutler said he had been dubious. He recently asked the 
investigators whether his client's claims were true.

Cutler arrived at a pretrial meeting last Thursday thinking he was 
there to discuss evidence. He sat down with Deborah Shandles, the 
Wake County prosecutor in charge of the case, and the lead 
investigators from the DEA and Wake County Sheriff's Office.

They confirmed that the agent had taken the sombrero picture. "You 
expect more from the DEA," Cutler said Wednesday night. Shandles 
declined to comment. Willoughby said Shandles learned of the 
photograph last week. He said it was not taken by the case's primary 
DEA investigator, but by an agent assisting during 
Hernandez-Villalvazo's arrest. Hernandez-Villalvazo pleaded guilty 
under an Alford agreement, which allows suspects to avoid admitting 
they committed a crime.

Willoughby said he doesn't know what effect, if any, the photograph 
of Hernandez-Villalvazo might have on the cases of the other 
defendants. The photo should have been disclosed long ago, according 
to North Carolina's "open discovery" law, said Thomas Maher, director 
of the Center for Death Penalty Litigation, a nonprofit law firm in 
Durham. The law is intended to allow defense attorneys to see all 
evidence, even if it is favorable to the suspect or raises questions 
about an investigation, he said. The DEA should have told the 
prosecutor about the compromising photograph and also submitted a 
copy as evidence, he said. "You err on the side of disclosure; you 
don't err on the side of keeping this secret," Maher said. 
Hernandez-Villalvazo declined through his lawyer to comment. He told 
Cutler he planned on returning to Mexico.
- ---
MAP posted-by: Beth Wehrman