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Not So Free to Go

Being found innocent is only the first step toward getting out of jail

by Jesse Fox Mayshark

On July 13, Knoxville attorney Mike Whalen stood with his client in front of U.S. District Court Judge Curtis L. Collier in a federal courtroom in the old Whittle Building. As Whalen listened, a prosecutor from the U.S Attorney's office announced that he had decided to drop all charges against the client in question, a Mexican national named Modesto Delgado-Matisto.

"He is free to go," Collier told Whalen. It was the kind of moment criminal defense lawyers—and criminal defendants—live for. Especially when they have been arguing, as Whalen had for five months, that the evidence in the case fell somewhere between flimsy and fictional.

Then, members of the U.S. Marshals Service stepped forward to do to Delgado-Matisto what they usually do to free men in such circumstances: put handcuffs on them and take them back to jail.

"His charges were dismissed at 9:30 in the morning, and he was still in custody at 5 o'clock," says Whalen, still mad about it weeks later.

In raising the issue, Whalen is challenging a long-standing practice of both the Marshals Service and the Knox County Sheriff's Department. It's a practice he believes violates constitutional rights (the Fifth and Sixth amendments, specifically) and calls into question the whole concept of innocent until proven guilty. Law enforcement officials say they can't just release someone without "processing" them—which often means handcuffing and strip-searching people who have been set free by a judge or jury.

"I don't know when they started processing the innocent," Whalen retorts. "Process what?"

Mike Ruble, the fair-haired administrative chief of the Knox County Sheriff's Department, says he understands why people who have been cleared of charges would want to get out of jail as quickly as possible. But, he says, "There are other issues about checking out."

All prisoners are registered and discharged from the Sheriff's Department's Detention Facility on Maloneyville Road, a 15 to 20 minute drive from downtown. The intake/outtake center moved out there because the old booking room in the City County Building was overcrowded.

When they enter the jail, prisoners surrender whatever clothes they're wearing and any other property they're carrying. When they're released, jailers have to return that property and also officially record the discharge so there's no confusion about who's in custody at any given time.

"Any time you've got a situation where the judge has said someone's free and they've got to go back through (the jail), it smacks of problems," Ruble admits. "But then you realize that's always how it's been done."

Whalen doesn't buy that defense. Why not, he asks, let legally free citizens come back to the facility of their own accord to check out and pick up their belongings? That's what he tried to do in the case of Delgado-Matisto.

The 28-year-old Mexican defendant had been arrested in January in one of the largest East Tennessee marijuana busts ever. After months of probing a Mexico-to-Tennessee smuggling operation, federal and state drug agents seized 1,100 pounds of marijuana en route from Chattanooga to Madisonville. They arrested nine men for transporting and receiving the drugs. Eight of them have since pleaded guilty.

The ninth was Delgado-Matisto, a legal alien resident of Laredo, Texas, who was in a car following the flatbed truck carrying the drugs when agents moved in. But Whalen—who was appointed to the case largely because he's one of a handful of Spanish-speaking attorneys in Knoxville—maintains prosecutors had no evidence his client did anything more than hitchhike with the conspirators.

"He was guilty of riding while Mexican," says the lawyer, who has a background in social activism and is known, among other things, for his verbal sparring and for wearing sandals with dress socks to court.

Assistant U.S. Attorney Hugh Ward apparently agreed, dismissing all charges against Delgado-Matisto "without prejudice" (which means they could be reinstated if new evidence arises).

Whalen had been notified of the pending dismissal the day before the court appearance, so he arranged for Delgado-Matisto to wear his own clothes rather than jail attire for the hearing. After Judge Collier officially cleared Delgado-Matisto, Whalen asked if his client "could go out the front door rather than the back door."

"He's got street clothes, I think he ought to be able to leave now," Whalen said. The judge concurred, and then left the bench. But the Marshals Service had other ideas. They moved to take Delgado-Matisto back into custody and return him to the Sheriff's Department for processing. (The Marshals Service has custody of prisoners in federal court, but the Sheriff's Department is responsible for housing them.)

"They said, 'We're going to take him back out there anyway. It's our policy,'" Whalen recalls. "I said, 'I think a federal judge trumps your policy.'"

There was some question of whether the Immigration and Naturalization Service still had a detainment order on Delgado-Matisto (standard practice when a legal alien is charged with a felony). So Whalen asked the Marshals Service to keep Delgado-Matisto in the courthouse while he went across the street to his office to call the INS. As he expected, the detainment order had been dropped along with the charges.

But when he returned, he found the marshals had already taken his client back to the detention facility, saying the Spanish-speaking Delgado-Matisto had "changed his mind" about going. As per custom, the trip back entailed being handcuffed and then strip searched.

"We're dealing with a secure area or a secure facility," Ruble explains. "And just because he's about to check out, and maybe because he's about to check out, that would be a good time for him to try to get something in to his buddies."

Ed Baker, superintendent deputy of the Marshals Service in Knoxville, says his department does sometimes release defendants directly from the courtroom.

"If they were already in street clothes and charges had been dismissed and there were no other charges pending, yes, they would be released," he says.

In this case, Baker says he was told Delgado-Matisto went to the detention facility voluntarily. Informed the defendant neither spoke nor understood English, Baker says, "That part of it I'm not aware of."

Other defense attorneys have seen the same thing happen to their clients, although none of them has made an issue of it.

"We see it every day," Public Defender Mark Stephens says. "From a practical standpoint, their property is there [at the detention facility]. ...The problem is, just logistically, the detention facility is a long way away. It just takes time. That wouldn't make me feel any better if I was waiting to get out, but that's just the way it is."

Ruble says the system will be streamlined somewhat with the completion of the new Justice Center, which is still at least three years away. It will include a new downtown intake/outtake center. But even with that, he says freed prisoners will have to wade through some bureaucracy.

Whalen acknowledges the system is unlikely to change unless someone challenges it in court—something Delgado-Matisto declined to do, returning to Texas instead. But in a letter to the Marshals Service and the federal judiciary, Whalen wrote, "The marshals violated [Delgado-Matisto's] constitutional rights, and they did so knowingly...I believe that the Marshals Service should look long and hard at this 'policy.' It is in violation of the laws you swear to protect, and I assure you that should another client of mine be treated with such wanton disrespect some of those accustomed to handling defendants in a federal courtroom will find themselves named as defendants in a federal courtroom."