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Systemic failures allowed man accused in motor vehicle homicide to vanish
Only In The World-Herald

Systemic failures allowed man accused in motor vehicle homicide to vanish

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Sarah Root is dead.

Eswin Mejia is missing.

And authorities are scrambling to answer how the 19-year-old accused drunken driver went missing just days after his arrest in Root’s death.

A World-Herald review of Mejia’s case shows a systemic failure — from county pretrial release staff to the county judge to federal immigration enforcement officials — to ensure that the man charged with felony motor-vehicle homicide in Root’s death would answer in court to the charge.

“He’s gone,” a law enforcement official told The World-Herald.

He’s gone because of a lack of communication and common sense among governmental agencies, Douglas County Attorney Don Kleine said.

Start with the crime: Omaha police allege that Mejia was drunk and street racing on L Street when he rammed into the back of a vehicle driven by Root.

Root died at the Nebraska Medical Center just hours after she graduated from Bellevue University with straight A’s and a degree in investigations. Prosecutors say Mejia’s blood-alcohol content was .241, three times the legal limit of .08.

A week after the crash, Mejia posted bail and skipped a urine test. Officials can’t find him.

The World-Herald review of court records found the following missteps:

» Mejia, who was listed on his jail booking sheet as from Honduras and not a U.S. citizen, was graded a low risk to flee by Douglas County pretrial release officials, despite the fact that he had a warrant and twice had failed to appear in court. On a scale of 1 to 7 — the higher the number, the more risk of fleeing — the county’s pretrial release staff graded Mejia a 2.

» On Feb. 4, Douglas County Judge Jeff Marcuzzo set Mejia’s bail at 10 percent of $50,000 — meaning that Mejia had to post $5,000 cash to be released. The newspaper’s review of 10 motor vehicle homicide cases filed in Nebraska over the past two years showed that five judges set the same bail amount. Five other judges set higher bail amounts — 10 percent of $75,000, $250,000 (twice) and $500,000 (twice). All of the other defendants were U.S. citizens.

» It’s not clear whether the judge was informed of Mejia’s immigration status. Deputy Omaha Police Chief Dave Baker said late Friday that an accident investigator informed Deputy Douglas County Attorney Matt Kuhse of Mejia’s ICE status before Mejia was released from Nebraska Medical Center.

» In considering bail, a transcript shows, Marcuzzo did not give prosecutors a chance to state their position — something every judge typically does.

» After not receiving a chance to speak about bail, Deputy Douglas County Attorney David Wear did not interrupt Judge Marcuzzo. Nor did anyone object after the judge set bail at 10 percent of $50,000.

» Root’s father called Omaha Police accident investigator Dawn Turnbull concerned about Mejia’s bail amount.

» Turnbull repeatedly called ICE about detaining Mejia “due to bond amount and elevated flight risk,” Baker said. Eventually, Baker said, “her request is denied.” She and her lieutenant tried to call an ICE supervisor. The call was never returned, Baker said.

A day after Mejia’s bail was set, a family member posted his bail. Jail officials released him at 8:44 p.m. on Feb. 5.

He then failed to show up to his required twice-daily urine tests. A warrant was issued.

His legal status — both in terms of U.S. citizenship and as a charged criminal — has prompted legal observers to question why the federal Immigration Customs Enforcement agency failed to place a hold on Mejia.

Shawn Neudauer, a spokesman for ICE, said that Mejia’s Jan. 31 arrest “did not meet ICE’s enforcement priorities” as stated in a November 2014 federal memo issued by Jeh C. Johnson, secretary of the Department of Homeland Security.

“Due to limited resources, DHA and its components (including ICE) cannot respond to all immigration violations or remove all persons illegally in the United States,” Johnson wrote.

The memo prioritizes detention and removal for those with felony convictions; it does not specifically authorize an immigration hold simply based on a felony arrest.

However, the memo has a catch-all provision.

“These factors (listed) are not intended to be exhaustive,” Johnson wrote. “Decisions should be based on the totality of the circumstances.”

In Mejia’s case, ICE said in a statement: “Mejia, 19, of Honduras, did not meet ICE’s enforcement priorities ... because he had no prior significant misdemeanor or felony conviction record. As such, ICE did not lodge a detainer. Mejia is scheduled to go before an immigration judge on March 23, 2017, and it will be up to the immigration courts ... to determine whether he has a legal basis to remain in the U.S.”

Whether Mejia will make it to his immigration court hearing is a mystery.

Mejia’s court appearances before his disappearance had officials scratching their heads. As he was awaiting the bail hearing, authorities brought him into court on a warrant for a Feb. 10, 2015, driving-under-suspension misdemeanor.

On Monday, Feb. 1, a day after the crash, Douglas County Judge Marcela Keim gave Mejia a 1-day jail sentence and fined him $50 for failing to have a child passenger restrained in his vehicle. City prosecutors dismissed a misdemeanor count of failing to have a proper vehicle registration and failing to appear in court.

Mejia, who police say doesn’t have a valid driver’s license, had not appeared in court in the 11 months since he was charged with those February 2015 driving offenses.

He also never appeared in court for a July 2014 traffic stop in which he drove the wrong way on a one-way street. He was charged with having no valid driver’s license.

It is not clear whether pretrial release officials factored in those failures to appear when they listed him as a low risk.

On Feb. 4, Mejia was brought before Judge Marcuzzo for his bail hearing.

According to a transcript of Mejia’s less-than-two-minute hearing:

Judge Marcuzzo asked Wear, the prosecutor, for the facts of what happened. Wear relayed the allegations.

“I find probable cause exists for detention,” Marcuzzo said. “For purposes of bond, pretrial, have you information?”

A pretrial clerk said: “Yes, your honor, we found a score of 2.”

Marcuzzo turned to Mejia’s attorney, Thomas Niklitschek.

“Looking at my client’s previous record, it doesn’t appear to have any felony traffic. He’s also eligible for the court’s 24/7 sobriety program. I think that’s a positive event in the situation. I’d ask for a reasonable bond, judge. He’s been in Omaha the past three years, has a lot of family here who support him.”

Marcuzzo didn’t ask for Wear’s input on bail.

“I’ll set your bond at $50,000, 10 percent,” Marcuzzo said. “If you post that bond, I’ll authorize you for the pretrial release program and the 24/7 program. Thank you very much.”

He moved onto the next case.

Marcuzzo didn’t return calls Friday. Nor did Keim, the county’s presiding judge.

Douglas County judges say they do not necessarily see a defendant’s rap sheet when they impose bail. In crowded hearings that often have more than 10 to 20 felony defendants, judges say, they typically rely on pretrial release officials and prosecutors to fill them in on any skipped court appearances or other flight-risk factors.

Kleine, the Douglas County attorney, said he was concerned that Marcuzzo didn’t turn to his prosecutor. “The judge just went, ‘Bam, here’s the bond.’  He’s running the show in terms of how the hearing’s conducted.”

Asked if his prosecutor should have interrupted — and highlighted Mejia’s failures to appear — Kleine said: “We weren’t given an opportunity to speak. In some ways, I wish our person would have just stopped the proceeding and said, ‘We think that’s an insufficient bond,’ but that didn’t happen.”

Kleine said common sense and communication are lacking in ICE’s detention policy. He questioned why ICE doesn’t put immigration holds on those arrested on suspicion of felonies.

As consequences increase, Kleine noted, so does a person’s motive to flee.

“No one’s saying that people need to be profiled,” Kleine said. “But when we have someone who has been arrested for a serious crime — and they’re not here legally — they have every reason in the world to flee.

“There has to be a common-sense communication between the feds and the state. ... For him to be able to evade prosecution is tremendously frustrating to us. And I know that’s true for (Root’s) family and for police as well.”

Beyond their dismay, Root’s relatives have been deflated by the official decisions that have led them here. Told Friday night that Douglas County pretrial release staff had determined that Mejia was a low risk to flee, Root’s mother said: “Of course they did.”

“It’s just outrageous,” Michelle Root said.

She regrets that she did not attend the arraignment, even if it would not have made a difference. But there was a funeral to plan, and an investigator said she didn’t need to go.

Contact the writer: 402-444-1275,

Staff writers Emerson Clarridge and Kevin Cole contributed to this report.

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