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Prop. 100: Prosecutors have created politically motivated controversy

Accusations continue to fly that Superior Court in Maricopa County is failing to enforce Prop. 100. The county attorney has even stated that because he has no other recourse, he must take his case to the people. He is incorrect.
As a lawyer and an officer of the court, he has several options other than to make false accusations against the court commissioners and judges who are following the law and the administrative order issued by the state Supreme Court’s chief justice on April 3.
The order, which Superior Court judicial officers must follow, also stipulates that the county attorney has the burden of proving that the proof is evident or the presumption great that the person committed a serious felony and that he or she entered or remained in the United States illegally. If the prosecutor disagrees with the interpretation or application of the law, he has three options:
• Apply to the appellate courts for review of judicial officers’ rulings in specific cases.
• File a comment on the Supreme Court’s rule petition to establish procedures to implement Proposition 100 and replace the current administrative order.
• Ask the state Legislature to enact a specific burden of proof for Proposition 100 cases.
Prosecutors have not appealed a single Prop. 100 decision by our court. Instead they’ve created a politically motivated controversy, using the media to agitate the public and create political fodder for the uninformed. The criticism is unfounded and unfair.
Proven illegal immigrants are being held without bond when facing serious felony charges. Our data proves that. A recent sampling showed 350 defendants were held non-bondable at their initial court appearance, within 24 hours of their arrests.
An evidentiary hearing follows within 24 hours of the initial appearance, during which the prosecutor must prove, through witnesses and evidence that proof is evident and presumption great that each of these non-bondable defendants has entered or stayed in the United States illegally. In nearly 70 percent of the cases, the prosecutor failed to prove the defendant was here illegally. Of those who couldn’t be held without bond, the court set bond based solely on the criminal charge. The County Attorney’s Office offered plea deals to 20 percent of the defendants — closing the cases.
Voters approved Prop. 100 with the intent of holding illegal immigrants in custody, without bond, while they await trial on serious criminal allegations. The details of how this was to be achieved were not included in the referendum. Implementation was left to the criminal justice system’s partners to sort out.
For the past two months I, members of the bench, prosecutors, defense lawyers and law enforcement officers have worked together to assure each of us fulfills the responsibilities of our roles in the criminal justice system.
However, there is disagreement over the role of the court in the process.
It is not proper, nor is it the role of the judicial officer, to gather evidence to prove the illegal acts of an individual. If the prosecutors disagree with the court’s rulings, they should bring the issue to the proper forum.
Courts must follow the law. Our court is committed to complying with Prop. 100, protecting defendants’ rights and providing a fair and impartial legal forum accessible to everyone.
Judge Barbara Rodriguez Mundell has been on the Maricopa County Superior Court bench since 1989, serving first as a court commissioner and then becoming a judge in 1991. She has been presiding judge since July 2005. She was in private practice for eight years before becoming a court commissioner.

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