Virgilio Aguilar Mendez, the 18-year-old migrant facing a manslaughter charge in the heart-attack death of a St. Johns County sheriff’s deputy following Mendez’s arrest on a minor charge, is now represented by Jose Baez, the Miami attorney and one of the most successful and high-profile trial lawyers in the country.
Baez replaced Assistant Public Defender Rosemary Peoples on Friday, when Mendez, who has been held at a jail in Volusia County since his arrest last May, also submitted a written not-guilty plea. Circuit Judge R. Lee Smith determined in December that Mendez was not competent for trial, but included a three-month clock in his order, requiring SMA Healthcare to provide a report on Mendez’s presumed progress toward competency. Peoples had cast doubt on whether Mendez could be returned to competency at all.
Baez’s take-over, with Orlando criminal defense and civil rights attorney Phil Arroyo as co-counsel, and a change.org petition calling for Mendez’s release that has drawn over 600,000 signatures, reflect the reach of the case far beyond St. Johns County, and shock over a charge that, according to the medical examiner’s conclusion about the cause of death, is disconnected from deputy Michael Kunovich’s heart attack–or much of Mendez’s behavior, a slight-framed Guatemalan who does not speak English and barely speaks Spanish. He is Mayan native to his country. (An earlier version of this article incorrectly referred to Arroyo as Mendez’s immigration attorney. Arroyo will be representing Mendez in a federal lawsuit.)
Baez has represented Casey Anthony, the Orlando woman who had been accused of killing her 2-year-old daughter Caylee (she was acquitted on the murder charge but served four years in prison for lying to police); the minor who was accused of bullying 12‑year-old Rebecca Ann Sedwick in Polk County to the point of suicide in 2013 (the charges were dropped); Aaron Hernandez, the New England Patriot football player accused in the murder of Odin Lloyd (Hernandez took his own life in 2017); and he was hired last fall to represent Shanna Gardner, one of three people charged in the murder of her ex-husband Jared Bridegan in Jacksonville Beach in 2022. Last year, Baez was the National Trial Lawyers Association’s Criminal Defense Trial Lawyer of the Year.
Mendez was staying at the Super 8 on State Road 16 in St. Augustine. He was speaking to his mother by phone on a sidewalk outside the motel when Kunovich drove up to him and, finding Mendez’s presence there suspicious, started asking him questions that Mendez could not answer, though he gestured that he was staying at the motel and had been eating dinner outside. When Kunovich attempted to frisk him, Mendez, clearly uncomprehending, tensed and resisted, and was quickly in a scrum of half a dozen deputies as Kunovich tased him repeatedly. Mendez was eventually handcuffed and placed in a patrol car. Minutes later Kunovich collapsed and was pronounced deceased at a local hospital.
There are no charges of any particular crime on Mondez other than resisting arrest, a charge that generally requires an underlying charge to stick: resisting arrest over what crime, other than not understanding deputies’ commands? The resisting charge would have been the only charge had Kunovich not died. The manslaughter charge was then added.
The defense argues that the manslaughter charge is not supported by the evidence, and in late January filed a motion to dismiss that count. Assistant State Attorney Mark Johnson countered with a motion to strike–not on the motion’s merits, but because the motion Peoples filed was not sworn to by Mendez. Johnson’s motion also does not address the its Catch-22 nature: Of course the motion Peoples filed could not be sworn to by Mendez: he’s been judged incompetent because he has no sense of the proceedings, and would not know what is to his benefit or not. He would not be able to make his own case to his attorney.
Additional details about Mendez’s history have emerged through the latest court filings. Mendez crossed into the United States illegally near Sasabe, Ariz., on Dec. 12, 2021, when he was 17. He was seized and turned over, as an unaccompanied child, to the federal Office of Refugee Resettlement, under the aegis of the Department of Health and Human Services. Within three days of entering the United States, he was housed in a facility for minors called The Villages in Topeka, Kansas. Clare Murphy Shaw, an attorney, started representing him in mid-April, 2022. He was released to the custody of a sponsor, Feliciano Aguilar, on June 1, 2022.
“I knew Virgilio to be a quiet and reserved child,” Shaw wrote in a sworn affidavit that’s now part of th court record. “He was from a very rural area of Guatemala, and his family lived in abject poverty. He is an indigenous Guatemalan, and his first language is Mam. He did not speak much Spanish during the time I worked with him, so we communicated through interpreters. He had no history of violence, criminal past, or gang affiliations. CBP [Customs and Border Patrol] and ORR [Office of Refugee Resettlement] screen children for these issues, and he never would have been placed at The Villages, which is not a ‘secure facility’ but simply what is referred to as a “‘shelter-level” or minimally secured group home-type placement, if he had any criminal past or gang ties. He was a peaceful child and had no issues during his time at The Villages.”
He was released to his first cousin in Opelika, Ala. Federal authorities handed him a Verification of Release document that serves as a federal identification document children may use to register for school, apply for work and other everyday steps that require documentation, according to Shaw. His case was moved to the Atlanta Immigration Court, where Mendez’s case is pending: his next appearance is scheduled for July 8 before Judge Philip Taylor. If he misses that hearing, his status would change in federal authorities’ eyes, and he would be subject to deportation.
He would not be subject to deportation or arrest now, if he were freed from the Volusia Branch jail, according to Shaw: “If Virgilio were to be stopped by CBP or other federal agent at a check-point, for example, he would not be subject to re-apprehension. He was released subject to his agreement to attend all court proceedings, and has no order of removal outstanding.” Johnson, the prosecutor in the St. Johns County case, has told the court that if Mendez were released from jail, he would be immediately apprehended by federal authorities. Shaw has been replaced by Phil Arroyo in Mendez’s immigration case.
Dane Olsen, a staff attorney at the Young Center for Immigrant Children’s Rights who was appointed child advocate for Mendez–a role similar to that of a guardian ad litem–met frequently with Mendez and spoke with staff members at The Villages when he was there. “Throughout this process, I knew Virgilio to be a respectful, humble, and peaceable young man who got along well with staff and peers at the shelter,” Olsen wrote in a statement. “He demonstrated a positive, upbeat attitude when I and our volunteer Child Advocate met with him, despite his being far from home and family. He told us of his interest in cars and his dreams to one day become a mechanic, and of his love of soccer (mostly playing, not watching). He enjoyed doing arts and crafts at the shelter, making bracelets and necklaces and even learning to knit. Virgilio also exhibited a unique level of patience and calm for a young person of his age and in his circumstances.”
Notably, neither Olsen nor Shaw described Mendez in terms similar to those used by Mendez’s advocates during his competency hearing. At that hearing in December, psychologists painted the portrait of an amiable but oblivious young man who could not grasp the gravity of the case against him and did not seem able to learn much, even when schooled on one thing or another. If anything, he would seem less comprehending, not more, after explanations. Olsen and Shaw were focused on different aspects of his personality, but they at no point suggest that he had difficulties understanding his circumstances or his verbal exchanges, through an interpreter, with his advocates. “He was a model shelter resident by all accounts,” Olsen wrote.
Olsen’s and Shaw’s statements were included as additional defense exhibits to support a previous motion to set a bond on Mendez. He is being held without bond. Additional documents were filed in support of the motion to dismiss the manslaughter charge. Those include body cam video footage, the Kunovich autopsy report and a brief deposition of St. Johns County Sheriff’s deputy Gavin Higgins, who tells Peoples, the defense attorney, that he at no point during the interactions and arrest with Mendez could foresee Kunovich was in trouble or having a heart attack.
“When you handed him the water, were you thinking, oh, he’s about to have a heart attack?” Peoples asked Higgins.
“No,” the deputy replied.
“So this is not something you were foreseeing in the events of that evening?”
“No, ma’am,” the deputy replied.