BAIL JUMPERS, COURT RULING PROMPT CHANGES

                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: SUNDAY, March 7, 1993                   TAG: 9303070088
SECTION: VIRGINIA                    PAGE: D-1   EDITION: METRO 
SOURCE: DOUGLAS PARDUE STAFF WRITER
DATELINE:                                 LENGTH: Medium
BAIL JUMPERS, COURT RULING PROMPT CHANGES
Shortly after Jose Henao was arrested in 1991 on charges of smuggling cocaine from South America to Roanoke, a federal judge allowed him to go free on $225,000 bond while awaiting trial.
A few days later, Henao called the federal pretrial services officer he was supposed to report to three times a week and said he wouldn't be able to make his first appointment.
"I'm in Bogota," Henao, a Colombian citizen, laughingly told the officer.
"And that's the last we heard from Henao," said Tom Bondurant, the federal prosecutor handling the case.
Bondurant went ahead and tried Henao in absentia, and in February last year a jury convicted Henao of drug smuggling. He faces a possible life sentence without parole.
Now, because of a Supreme Court decision in January banning federal trials in absentia - meaning in the absence of the defendant - Henao's conviction may have to be thrown out. The only way he can be tried is if he's recaptured.
The Supreme Court ruling also means that people charged with major federal crimes may find it harder to get out of jail on bail pending trial.
Trials in absentia are rare and go against the grain of the country's legal heritage. But the Supreme Court's ban could prod more defendants to do what Henao did, especially those facing lengthy mandatory sentences.
"If you face 10 years to life and you make bond, it's to your advantage to take off," Bondurant says. "What have they got to lose? And they may have much to gain by running."
The reason, Bondurant says, is that the longer a trial is delayed, especially drug conspiracies, the greater the odds that evidence will disappear and witnesses will forget, back out or die.
If Henao ever is recaptured, Bondurant says, the government might not be able to convict him on the drug charge. But Henao now also faces a charge of failure to appear, which carries a maximum of 10 years. "I know I can prove that," Bondurant says.
Glen Conrad, the U.S. magistrate who let Henao free on bond, agrees that the Supreme Court ruling might encourage some defendants to flee rather than risk long sentences. But Conrad says he's always been surprised that more defendants don't run.
"You don't have much to lose," Conrad says.
But, Conrad says, the bail system is based on the presumption that a person is innocent until proven guilty. Unless there is strong evidence that a person is a danger to society or very likely to flee, there's no reason to jail the person.
One real problem with the Supreme Court's ruling, Conrad says, is that more people accused of crimes might be denied bail. He says federal prosecutors will ask for more pretrial detention, especially in drug cases with lengthy mandatory sentences. And, he says, foreign nationals and defendants who are from out of state may have an especially hard time getting freed on bail.
E. Montgomery Tucker, U.S. attorney for the Western District of Virginia, says that's exactly what his office plans to do - "make a greater effort to ask for pretrial detention."
Kent Willis, director of the American Civil Liberties Union for Virginia, says the Supreme Court ruling has opened a "classic clash of individual rights and enforcement."
He says he doesn't know for sure if the case actually will prompt more people to flee to avoid trial. But, he says, it certainly has given prosecutors another argument for denying bail. "The tendency of . . . law enforcement has been to use every avenue available to seize, detain and incarcerate."

by Archana Subramaniam by CNB