Man still in jail after 897 days but hasn’t committed any crime

By Daniela Tagtachian
Associate Editor Vol. 20
Executive Editor Vol. 21

Benito Vasquez-Hernandez, a 59 year old man, is awaiting to testify in a murder case. He has not done anything unlawful, he has committed no crime, but based on Oregon law, a judge has ordered him to be held in custody until the trial. Benito is currently in custody among inmates and is treated as any other inmate. He might be the longest held material witness in the nation. In last September he was taken to court in handcuffs from the jail where he had a simple question “Why am I in jail? It’s been two years. It’s been too long.”

Benito’s life in jail – Benito’s jail cell is small and has a single window well above his head. The lights are turned on at 5 AM. He is allowed to leave his jail cell for 8 hours every day. There’s a TV and some tables where inmates eat. There’s a window that looks onto concrete and the recreation space which is surrounded by 4 walls. The lights go out at 10 PM. Benito is completely alone for 16 hours of the day.

Benito has done nothing wrong; he’s merely a material witness for a murder case. Unsurprisingly, in addition to being a material witness, he is also an immigrant, poor, uneducated, illiterate, and has not even been allowed to have any contact with his family. He doesn’t understand our legal system and does not even understand why he is in jail. The prosecutors have successfully argued that Benito’s testimony is essential to the murder case and that is not likely to show up to court if he is released.

The judge in this case, Judge Don Letourneau, denied the request from Benito’s court-appointed lawyers for release and ordered Benito’s bail to be set at $500,000. In order to be able to post bail, Benito would have to pay $50,000 (10% of the bail amount.) Given than even $50 would have been impossible to pay, $50,000 is absurd and unconscionable.

Laws allowing for the detention of material witnesses are in place in almost all states. In Oregon, a judge can order a material witness be held in custody until they testify or can release them while the trial is pending. Note that under Oregon law, there is no limit to how long a material witness can be held in custody. That said, in Oregon witnesses are usually in custody less than a week and this statute is usually used when witnesses don’t want to testify because they fear retaliation. This is often the case in cases involving gangs.

Legal scholars have questioned the constitutionality of such material witness laws. “Their concerns included holding witnesses in jail alongside criminals, holding them for too long or holding them because they couldn’t make bail.” Carolyn B. Ramsey, a law professor from the University of Colorado, has noted that very few witnesses have challenged their detainment primarily because they lack social standing and the financial means to afford a defense.

Under Oregon law, there is a way of being released from material witness detention – pretrial deposition. This would consist of the witnesses sworn statements being recorded via video. Benito’s attorney requested this in November 2013 (at which point Benito had been in custody for over a year.) The prosecutors objected because since “[t]his was a murder case with no body and limited forensic evidence, and to show this testimony on a video screen would dilute the quality of important evidence, they argued.”

After the judge wrote to the lawyers that “[i]t is totally predictable that the material witnesses will not say anything that will benefit the state at trial,” the prosecutors scheduled the pretrial depositions.

Last September, Benito took the stand with a Spanish interpreter. The judge explained that if he answered some questions he could go free. When the judge asked “Do you swear to tell the truth?” Benito responded with “I didn’t do anything … I’ve been in jail. … I’m innocent.” Benito was asked why he was in jail and he repeated his statement again. The judge got “frustrated and eventually yelled ‘Get him out of here.’” In order words, his testimony was never recorded.

The murder trial is set to start on Tuesday. After 897 days, Benito still remains in custody waiting to testify for a murder trial with no body and limited forensic evidence.

Other material witnesses held in detention for this case include Benito’s 28 year-old son, Moises Vasquez-Santiago, who was released last fall after 727 days in jail. “The incarceration pushed the son to breaking, a doctor noted. He was diagnosed with schizophrenia while in custody. His lawyer said the isolation Moises felt drove his unraveling.”

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