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NJ high court weighs Mexican telephone testimony

Associated Press

TRENTON, N.J. (AP) – A man deported from the New Jersey shore for fathering two children with a 15-year-old girl can probably try to overturn his conviction by calling in to court from a pay phone in Mexico.

Whether or not he should be allowed to is a decision the New Jersey Supreme Court will make soon.

The justices heard arguments Wednesday on the efforts of Juan Pablo Santos, who wants to overturn his 2008 conviction for child endangerment. He asserts his previous lawyer didn’t inform him that by pleading guilty to the crime, he would automatically be deported.

Now the 29-year-old Santos is asking the high court to let him testify from a pay phone in an unspecified Mexican community. Because of his criminal conviction, the former Lakewood resident is not eligible to return to the United States to appear in court to try to overturn the conviction on the grounds that he received inadequate legal advice, according to his attorney, Ubel Velez.

“He was not illegal,” she told the high court. “This conviction forced this defendant to be deported. We want this court to establish procedure for a defendant in Mexico, in Haiti, in Tanzania to testify from a pay phone from remote places.”

But the Ocean County Prosecutor’s Office opposes the request, saying it needs the defendant to be physically present in court in order for the judge and prosecutors to evaluate his credibility. That includes looking him in the eye, observing his body language and overall demeanor _ all things that are impossible to do over the telephone. It would also be impossible to verify that the person speaking is actually Santos, prosecutors argue.

“Someone on this end would have to identify him as the defendant,” Justice Barry Albin said. “Take that as a given.”

Supervising Assistant Prosecutor Samuel Marzarella told the justices Santos can try to get a federal court to give him special permission to return to the U.S. to appear in court. But the prosecutor’s office will not agree to telephone testimony because it would undermine long-established legal norms, and deprive the victim of their right to confront the witness in court.

“There’s a reason we go to the symphony in person rather than watching it on TV or listening to the CD,” Marzarella said. “We get more data. It’s a different experience.”

He also said that just because a particular technology exists, that doesn’t mean the courts are obligated to use it.

Santos first ran afoul of the law in 2005 when police went to his home in Lakewood and found him in bed with a teenage girl. His lawyer said Santos was 22 at the time. The girl, who Santos describes as his common-law wife, was 15.

“That sounds outrageous, but it is customary for Latinos to marry young,” Velez told the justices.

Albin replied, “We have something called statutory rape. A person under the age of 16, and a person four years older than that who has sex with that person is guilty of a crime.”

Velez said after court that the couple had two children together, and that the family was broken apart by Santos’ deportation.

“They were in love,” she said.

Several of the justices appeared disinclined to allow telephone testimony, suggesting instead that Santos testify via video link from a U.S. Embassy or a Mexican governmental office. Deputy Attorney General Michael Williams said that would be a better option than taking testimony by phone, which a lower court judge in Ocean County said last year would be OK. Williams also suggested Santos be allowed to testify over the Internet using the Skype online phone service.

But that would lead to a whole new array of questions that are not easily answered: Who would administer the oath to the witness? How would the oath to testify truthfully be enforced if the defendant is already out of the country and beyond the reach of U.S. law enforcement? Who would pay for all this?

Chief Justice Stuart Rabner said much more legal argument is needed before the court can resolve the case, and ordered both sides to submit additional briefs.

In the meantime, Velez said she would contact Santos to see if he has access to a law office in Mexico. She said having him travel to a distant city to appear at a consulate or governmental office would be an extreme financial burden.

That may be, Albin replied, but it might be a small price to pay for someone trying to overturn a conviction they maintain was wrongly imposed.

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Wayne Parry can be reached at
http://twitter.com/WayneParryAC

(Copyright 2012 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)