In a 1920 Supreme Court case throwing out the conviction of an accused, Justice Felix Frankfurter described how “ a substantial portion of the case against him was a fruit of the poisonous tree.” He’d put elegant words to a doctrine first formulated by Oliver Wendell Holmes 20 years earlier: when you build a case against someone on illegally obtained evidence, the whole case must be thrown out.
A venomous tree led to the arrest of Vergilio Aguilar Mendez last May in St. Johns County, where he’s facing charges of resisting arrest and aggravated manslaughter for the death of the sheriff’s deputy who arrested him. (He’s in jail in Volusia County, not in St. Johns, as initially reported here.)
Mendez is a dark-skinned 18-year-old Mayan from Guatemala with a sixth grade education. He weighs 115 pounds and stands no higher than a mailbox. His primary language is Mam, an ancient language that predates the colonial era. He speaks only a little Spanish and even less English. Racial persecution is endemic against Mayans in Central America. He thought he might have it better here.
Mendez crossed over illegally a year ago to provide for his family back home. Being a minor when he crossed, he was held in a detention center for juveniles until he was released to a family member and issued a court date. He joined Mexican migrants and ended up picking vegetables at a farm in St. Augustine. In other words, he’s among the millions of migrants who help put food on our tables, doing work the rest of us consider too good for us.
He shared a room at a Super 8 motel with three other migrants. One evening last May he went outside to have something to eat and speak with his mother by phone. He was in the well-lit parking lot of the motel, on the phone with his mother, when St. Johns County Sheriff’s deputy Mike Kunovich rode by. Mendez apparently got up and walked in the opposite direction.
That’s not a crime. To someone like Mendez, who may be more familiar with the terrors of paramilitary brutality than “protect and serve” (or with the more mundane fear of deportation) it may have been a survival instinct automatically kicking in. To the deputy, it was “suspicious behavior.” But when the deputy told him to stop, he stopped.
“Why did you get up and walk away?” the deputy asked him, building on the self-fulfilling suspicion. Mendez didn’t understand. He tried to tell the deputy he didn’t speak English. He managed to show with gestures that he was staying at the motel, that he’d been eating. The deputy asked a preposterous question, on a balmy Florida night at 9 p.m. especially: “Why aren’t you eating inside?”
The encounter was enough to make clear that Mendez wasn’t doing anything wrong. He was not committing a crime. He was not about to commit a crime. He was not anywhere near anyone with whom he could commit a crime. He was on the grounds of his motel, as even his arrest report states. He was eating while Mayan. The encounter should have ended then.
Instead, the deputy escalated. He searched Mendez. The move was unreasonable, unjustified, probably motivated by profiling, and illegal. You can’t just search anyone absent reasonable suspicions or probable cause. Inventing either is no substitute. Mendez was being strung up on that poisoned tree. Everything after that, including the noose tightening around him, was the result of that poisoning, including the terrible parts that followed.
From the deputies’ perspective, and maybe even objectively so, from a how-to-comply-with-a-cop’s-order-on-an-American-street’s perspective, Mendez behaved terribly. But he had not been to civics class at FPC. He’d probably not watched 10,000 hours of American cop shows on TV. He was uncomprehending. He thought he was being deported.
Other deputies arrived. He struggled, he resisted, he was tased repeatedly before he was handcuffed. According to his arrest report, he took out a “folding pocket knife” from his shorts and was disarmed. Not long afterward, Kunovich, 52, collapsed of an apparent heart attack and died that night. There is no diminishing or mitigating that tragedy. But to compound the loss of a 25-year veteran of the force with an untenable cause and effect doesn’t alleviate it. It aggravates it by associating it with a miscarriage of justice.
What might have been a resisting arrest charge that would have most likely been dropped, especially since there was no underlying crime that would have substantiated the resisting charge, became “felony murder,” later formalized as aggravated manslaughter, plus resisting. Mendez is still not comprehending. It’s not clear he’s all there: his lawyer filed a motion suggesting he has no idea what’s going on, that he’s incompetent to stand trial.
The poisoned tree has grown branches.
The Sheriff’s Office has retroactively claimed Mendez was trespassing on a nearby property, another preposterous fabrication that was never mentioned by Kunovich nor was in the arrest report. Further, the property was a shuttered building owned by the motel within 10 steps of the Super 8 road sign, without any No Trespassing indications anywhere. Mendez was on the sidewalk.
The governor, with his usual skills of dousing anything he touches in effluent, wasted no time politicizing the tragedy of Kunovich’s death, and of course blaming Joe Biden.
The defense is asking for a bond at the Dec. 22 hearing, when Mendez’s competency will also be determined. He at least has the humane R. Lee Smith as a judge. But Mendez won’t get a bond. Smith’s indulgences may only go so far in an environment–in a circuit and a state–where the fate of men like Mendez has been decided long ago. Poisoned trees are no obstacles to the reigning faith that cops can do no wrong, that cops who die in the line of duty must be avenged, and that migrants like Mendez can do no right but hang from trees. The poison in cases like this only fuel the lynching.
Pierre Tristam is FlaglerLive’s editor.