Federal vehicle in Chicago ramming case may have had repairs before defense looked at it. Can the court do anything about it?

By Andy Rose, Bill Kirkos, Andi Babineau, CNN

Chicago (CNN) — Thursday was supposed to be a day of no surprises for Marimar Martinez, the woman who was shot after allegedly ramming the car of a Border Patrol agent she had been following. She was headed to a routine court hearing.

But earlier that day, defense attorney Christopher Parente learned a piece of evidence that may be critical to the case was no longer in Chicago.

“I was informed about two hours before the hearing that the agent’s vehicle was gone,” Parente told CNN.

“Gone,” as it turned out, was more than 1,000 miles away. Department of Justice attorney Aaron Bond said in court the agent was told he could take it back to his home in Maine.

Parente said he was concerned moving the vehicle so far away could leave it open to being altered, and his concern seemed justified in another hearing four days later.

A government attorney said some repairs may have been “processed or at least approved,” but couldn’t say whether any work had actually been done.

US District Judge Georgia Alexakis was “troubled by what I’m hearing in terms of the repair work in particular,” the Biden appointee said Monday.

While the government has accounted for the missing SUV, Parente says there are more questions to answer when it comes to the where, the how and the why of the SUV’s long journey.

Vehicle’s condition is critical to defense, attorney says

Martinez, a 30-year-old American citizen, and her co-defendant, Anthony Ruiz – who was driving a different vehicle – both entered not guilty pleas to a federal charge of assaulting, resisting or impeding federal officers. They are accused of “aggressively and erratically” following and then ramming a Border Patrol vehicle on October 4 as it was on security detail on Chicago streets.

The incident took place as Chicago became one of the epicenters for the Trump administration’s immigration crackdown, with regular protests at a suburban ICE facility and dramatic raids and patrols in the heart of the Windy City.

Both Martinez and Ruiz left the scene of the crash, prosecutors say, although Parente said his client drove “to a safe place where she pulled over and called 911” to report the shooting. She was treated at a hospital for gunshot wounds and released.

They have not denied they were closely tailing the Border Patrol vehicle through Chicago streets. But Parente says Martinez, who was shot five times after the crash, did not cause the wreck, arguing the agent was the person who actually initiated the contact by sideswiping his client, making the condition of his vehicle crucial to her defense.

“The cars are the big issue,” Parente said.

The Border Patrol agent is expected to testify about his actions related to the vehicle at a November 6 status hearing. A trial for Martinez is set to start in February.

Surveillance video obtained by the Chicago Sun-Times shows the vehicles of Martinez and Ruiz following closely on the sides of the government SUV before the incident, but the only known video of the crash itself comes from a body-worn camera.

Parente, who has seen the bodycam video but is not allowed to share it under a court order, told CNN it shows the agent behind the wheel turning into his client’s vehicle, with one agent heard saying “Do something, b*tch” before shots were fired.

He also said the government has put out misleading information on Martinez. Department of Homeland Security spokesperson Tricia McLaughlin said in a news release Martinez was “armed with a semi-automatic weapon.” But Parente told CNN his client is a licensed gun owner and had a handgun in her purse but never brandished it. The criminal complaint against her doesn’t mention she had a firearm.

At some point after the crash, the agent, who has not been publicly named, was allowed to return home to Maine with the SUV because it was his “personal vehicle,” Bond told the court last week. It was not clear if Customs and Border Protection had consulted with prosecutors before giving that permission, Parente said.

The criminal complaint stated the vehicle is owned by CBP, not the agent. CNN reached out to the Department of Homeland Security for comment and asking for clarification on how the agent is connected to the SUV. Through a spokesperson for the US Attorney’s Office, Bond declined to comment.

At the Monday hearing, Assistant US Attorney Ronald DeWald said the agent took the vehicle to a secured parking area of a CBP station in Maine.

Can the judge punish the government for moving the SUV?

As Martinez’s and Ruiz’s vehicles remain impounded in an FBI garage, Alexakis told the government to return the SUV to Chicago. No alteration is allowed – not even a car wash – before the defense gets a look. And this time, it will be making the journey on the back of a flatbed tow truck.

“It’s a reasonable request,” said Alexakis. “There’s only so much you can tell from photos.”

Still, Parente told the judge he couldn’t believe a key piece of evidence had been removed from the state by one of the main figures in the case.

“This is not just the driver, this is the shooter,” Parente said incredulously in court.

Parente isn’t the only attorney who was amazed the government’s Chevy Tahoe was allowed to leave the state. Patrick Griffin, a San Diego lawyer who has handled civil cases involving Border Patrol vehicles, said the defense has a right to get access to the SUV.

“This is not some novel concept. This is as basic as it gets,” Griffin told CNN. “It’s 101 that the vehicle needs to be maintained and needs to be able to be examined by the defense.”

Although Alexakis agreed the car should be returned, Griffin says there is a high bar before the government can be punished for allowing the car to be taken away.

In the 1984 Supreme Court decision California v. Trombetta, justices said prosecutors are not required to preserve evidence unless they have a reason to believe it could help the defendant.

“If it’s just not obvious that the evidence would be exculpatory, then you must show bad faith,” said Griffin.

Even then, the Supreme Court said, it may not matter if the defense has other evidence that can still prove innocence.

Parente, said he had asked the court to order DHS “to preserve and maintain any and all records, emails, text messages, documents, notes and other materials related to” the Martinez case.

While Parente has focused in court on the physical condition of the SUV’s exterior, the most important piece of evidence is probably inside the Tahoe. Most vehicles now have an event data recorder – the EDR – that is similar to an airplane’s “black box.”

“It can show all the data that leads up to a crash,” said Griffin. “Did the person swerve? Did they hit the brakes? What was the speed? And this is really just fundamental evidence that is necessary to determine what happened.”

ICE detainees and officials have been suddenly moved

It is not the first time concern has been raised about important elements in a Department of Homeland Security-related case being quickly moved from one state to another – although it usually involves people rather than physical evidence.

Multiple people who have been arrested in immigration cases this year – including Mahmoud Khalil, Badar Khan Suri and Rümeysa Öztürk – were quickly moved hundreds of miles away to remote detention facilities shortly after being taken into custody, frustrating the efforts of their families and attorneys to gain their freedom.

Last week, Arthur Berto, a 13-year-old boy who was taken by ICE after an arrest for allegedly threatening another student at school, was transferred to a juvenile facility in Virginia.

The Massachusetts-based federal judge in that case ruled he didn’t have the authority to decide whether Berto should be freed because the child had crossed the Massachusetts border an hour before his family’s petition was filed. Defense attorney Andrew Lattarulo told CNN last week he was still working to find an attorney in Virginia to represent his client.

Even ICE officials have sometimes been difficult to track down.

In a separate case in Chicago challenging federal agents’ use of riot control munitions and tear gas against protesters and journalists, Judge Sara Ellis asked an ICE interim field director to testify in court and explain why an order she issued appeared to be ignored.

But the government announced one business day before the Monday hearing the official had been reassigned to Washington, DC, and other officials would have to testify in his place.

Ellis said she would accept the last-minute substitution as long as those officials can answer her questions.

But until the defense team actually gets a look at the vehicle and if anything has changed in the 2,000-mile round trip, legal experts say it’s not clear whether the Trump administration will be punished for allowing it to be moved.

“The question arises whether the car will have been altered in a material way,” said Richard Friedman, a University of Michigan law professor who has written books on the rules of evidence. “If they haven’t done anything to the car, then maybe ‘no harm, no foul’ if they bring it back.”

Whether rules of evidence were actually broken or not, Martinez’s attorney says it should raise concern.

“This was a case involving the Border Patrol shooting of a US citizen in broad daylight and lack of integrity in this investigation is alarming,” Parente told CNN.

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This story was written by Andy Rose in Atlanta with reporting from Bill Kirkos and Andi Babineau in Chicago.