No Exceptions

Is a draconian law forcing innocent men out of the country?

by Julia Harte

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Published: Nov 4, 2009

[ law and order ]

Jessica Kourkounis TORN ASUNDER: Denis Calderon and Julio Maldonado's family believes the convictions that ripped them apart were miscarriages of justice.

On Oct. 23, Julio Maldonado stepped off a plane in Lima, Peru, with nothing other than the clothes on his back and 40-odd dollars in his pocket.

Maldonado, 42, has been a legal resident of the United States since he was 3 years old. He doesn't read or write Spanish, only English. Yet here he was, in the place of his birth, a stranger in a strange land. Nobody was expecting him, save for a local priest his stateside family called a few hours before his plane touched down and begged to meet him at the airport. Maldonado found lodging with a distant relative, but he's still bereft of virtually all of his worldly possessions, including his passport and birth certificate. His American fiancée even had to ship him clothes.

"Right now, I am lost," Maldonado told City Paper in a late October phone interview. "My life is in the United States, my family is in the United States. I'm not from South America anymore."

According to the U.S. government, he's no longer welcome here.

In 1997, Maldonado and his cousin, Denis Calderon, were convicted of aggravated assault, a second-degree felony, following a racially charged altercation in Northeast Philadelphia. The year before, the U.S. Congress passed the Illegal Immigration and Immigrant Responsibility Act of 1996, mandating deportation for any non-U.S. citizens, even legal ones, convicted of certain felonies — among them, murder, rape, firearms trafficking and "crimes of violence for which the term of imprisonment is at least one year."

Maldonado and Calderon were sentenced to two-and-a-half to 10 years in state prison, so that law applies. In 2005, shortly after their release from state prison, Immigration and Customs Enforcement initiated deportation procedures against the pair. ICE officials demanded the men sign papers authorizing their deportation. The men refused, which is a federal crime. Maldonado pleaded guilty to hindering his own removal from the U.S., and was sentenced to four years at the Moshannon Valley Correctional Facility in Clearfield County, Pa. Calderon is serving five years at Moshannon; he got an extra year because he didn't plead guilty. He's scheduled to be deported, too, when his sentence expires next year.

Over the last 13 years, the federal government has deported more than 1 million immigrants following criminal convictions — a number that has escalated dramatically in the last decade. More than 136,126* were deported in the just-ended fiscal year 2009 alone, according to government statistics. Indeed, there's an argument to be made that even legal immigrants have a responsibility to abide by the laws of their adopted homeland.

But what if the men are innocent, and the law doesn't care?

In fact, there's compelling evidence that Maldonado and Calderon did not commit the crimes for which they were convicted, jailed and slated for deportation. The judge who convicted them a decade ago later vacated the charges against them and ordered a retrial, saying that he was never shown evidence that may have exonerated them. The Philadelphia District Attorney's Office appealed, and had the guilty verdicts reinstated on what amounts to a technicality. In the end, the cousins pursued their cases all the way up to the U.S. Supreme Court, but the convictions stuck. Consequently, the government continues to view Maldonado and Calderon as personae non gratae, no matter how flimsy the evidence against them. Maldonado and Calderon, who had no prior criminal records, also appealed their deportation orders, to no avail. According to their immigration lawyer, James Orlow, immigration courts refused to look beyond those criminal convictions.

"The justice system has overlapped with the immigration system in some really grotesque ways," says Philadelphia immigration attorney David Bennion, who advocates for the men. Immigration courts, he says, take the attitude: "We don't care about the circumstances, we don't care about your family members here who depend on you. If you commit crimes here on this enumerated list, you've gotta be deported and there's no exceptions."

Just after midnight on Aug. 4, 1996, Maldonado and Calderon were walking through Calderon's Northeast Philadelphia neighborhood to grab a beer when, according to court records, a gang of white youths who were drinking beer in the street began yelling racial epithets and throwing bottles at them. A scuffle ensued. Prosecution witnesses testified at their trial that Calderon lay helpless while several white men kicked and punched him. Maldonado retrieved a heavy metal steering-wheel lock from his car to fend off the attackers. As Maldonado grabbed the lock, the witnesses said, a young white man named Christian Saladino — who prosecutors said was not among the epithet-spewing instigators — ran toward the crowd that was beating Calderon. At that point, prosecutors said, Maldonado beat Saladino over the head with the steering-wheel lock; Saladino collapsed, and fell into a coma. Prosecutors alleged that Calderon got up, ran to his house, grabbed a baseball bat, then went back to where Saladino lay in the street and beat him with it.

The cousins tell a different story. Maldonado admitted to "grazing" Saladino's shoulder with the steering-wheel lock — because, he testified, Saladino had a knife and was trying to stab Calderon. But, he said, he didn't beat Saladino in the head. Calderon, meanwhile, admitted to retrieving the baseball bat, but denied hitting Saladino with it. (Saladino, who was 18 at the time of the incident, died in 1998.) Maldonado and Calderon both claimed they had only acted in self-defense. None of the white youths — who even prosecutors admitted started the incident — were ever charged.

The prosecutors — including a young, ambitious assistant district attorney named Seth Williams, who just became this city's district attorney-elect — argued that Maldonado and Calderon had smashed Saladino's skull with a blunt object, cutting off oxygen from his brain and causing his coma. Saladino's family wheeled in his comatose body on a gurney during the men's assault trial. It was, Judge Gregory Smith would later recall, a "riveting" scene. Saladino's family did not return calls for comment for this story.

Maldonado and Calderon's lawyers advised them to opt for a bench trial (in which the judge acts as the only juror) and didn't tap any medical witnesses to challenge the prosecutors' claims. They were convicted. In rendering his verdict, Smith acknowledged that Maldonado and Calderon were justified in using force. But, he ruled, Saladino had been an innocent bystander, and "may possibly [have] even been a peacemaker" who had placed himself between Maldonado and the teenagers attacking him. Thus, Maldonado's force against Saladino had been "reckless." As for Calderon, Smith believed the witnesses who testified that Calderon had beaten Saladino with a baseball bat while he was already unconscious: "He should not have struck this young man while [he was] lying down."

Maldonado and Calderon appealed, alleging insufficient counsel. They hired new defense attorneys, who brought in a forensic pathologist named Walter Hofman — a bit of good luck. After Saladino died, prosecutors brought murder charges against the men. In 2000, that case went to a jury trial, where Hofman — who is currently the Montgomery County coroner — testified that there was no evidence that either of the men had, in fact, hit Saladino with the steering-wheel lock or contributed to his death: "If you're going to get whacked on the head or any place else with the object in question ... that will leave a mark, and there are no marks."

Saladino's coma, Hofman said, was the result of a spontaneous hemorrhage — much like the type of hemorrhage suffered by stroke victims. Saladino had a blood condition similar to hemophilia, Hofman elaborates to City Paper, that made him susceptible to spontaneous hemorrhaging.

Maldonado and Calderon were acquitted of murder. After hearing Hofman's testimony in an evidentiary hearing, Judge Smith rescinded his verdict and ordered a retrial, saying in court on April 18, 2000, that, "had [I] heard the expert opinion at trial, the outcome may have been different."

But the cousins never got their retrial. In 2002, the DA's office successfully appealed. The convictions were reinstated after an appellate court found that Maldonado and Calderon's trial counsel had not, in fact, been deficient. (In an interview, Williams says he was unaware of this appeal, though he worked in the DA's office at the time.) In a December 2004 hearing, Smith lamented, "The only thing that's holding these guys in jail is a legal call, a legal call all right. Otherwise, [they'd] be free as a bird, you understand that?"

Later in that hearing, while explaining his decision not to send Calderon back to prison until after the holidays, Smith snapped at a prosecutor who demanded that he be jailed immediately: "I also remember these two individuals who had no records, going around the corner to get a beer and being attacked by these racists, you understand me?"

GONE, NOT FORGOTTEN: Julio Maldonado, pictured here before his arrest, was a legal U.S. resident for 39 years before his deportation. (CLICK IMAGE FOR LARGER VERSION

On Oct. 20 , three days before Maldonado was shipped off to Peru, Maria Rolon approached Seth Williams at one of his campaign events, and pressed him to use his influence to have the impending deportation called off. Rolon, a cousin of Maldonado and Calderon, describes it as "the first time I was able to see him face-to-face and ask him about the issues. He's constantly denied that my cousins were innocent, but when I confronted him with the evidence ... he was speechless." According to Rolon, Williams told her that he would try to help.

In an interview a week before the election, Williams told City Paper that he knew nothing about the case after Maldonado and Calderon were convicted of assault. Of the encounter with Rolon, he adds, "I didn't understand what she was talking about. She was pleading with me to help save Julio and Denis, but [their deportation] is something I know nothing about. I didn't have anything to do with calling ICE or anything." Williams denies ever seeing evidence that cleared Maldonado and Calderon of the assault charges — though he was in the room when Judge Smith ordered a retrial. And he finds Hofman's explanation of Saladino's collapse ridiculous: "Now they're saying that he had some sort of blood clot that decided to manifest itself at the exact same nanosecond that Julio swung the car club at him?"

"If and when I'm a district attorney, if anyone brings me anything exculpatory, I'll see what I can do," Williams continues. "At this point, there's no such evidence in this case."

The fact that none of the white teenagers who started that fight in August 1996 have ever been charged is not immaterial to Maldonado and Calderon's case. Had they been, says Orlow, the pair's immigration attorney, the incident would have been deemed a simple street fight, and Maldonado and Calderon's offense would likely have been reduced to a misdemeanor — a non-deportable offense.

Maldonado submitted a pardon request to Gov. Ed Rendell in July; however, according to the Board of Pardons, such requests usually take two years or more to be processed. And, according to Tahir Mella, an immigration attorney not directly involved in the case, even a pardon wouldn't necessarily bring Maldonado back: "When the removal proceedings are done and the removal order has been executed, it's done."

Most deportees who earn clemency from an immigration judge and get to return are legal aliens with dependents in the United States. That applies to Calderon. But while Maldonado was a legal resident, he has no dependents here — just his fiancée, and his entire family.

Maldonado says he's still hopeful. "I just can't see myself staying away from the United States for so long," he says. "I think I had to go through all this so someone would finally notice there was an error somewhere down the road. The experts are the ones who need to resolve this, because the 'experts' were the ones who just kept making the case worse."

(julia.harte@citypaper.net)

* NOTE: In the print edition of this article, the number of criminals deported in 2009 was reported as 387,000, which is the total number of criminal and non-criminal removals. City Paper regrets the error.

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