On KHOW, Boyles promoted misinformation about GOP state senator's proposal to limit plea bargains

Summary: Interviewing Republican state Sen. Ted Harvey about his proposed constitutional amendment seeking to bar plea agreements with illegal immigrants that "will result in the defendant avoiding removal from this country," Peter Boyles failed to challenge inaccurate and misleading claims regarding the measure and plea deals given by Gov. Bill Ritter when he was Denver District Attorney.

On his April 17 broadcast, 630 KHOW-AM host Peter Boyles allowed state Sen. Ted Harvey (R-Highlands Ranch), a candidate for the GOP nomination in the 6th Congressional District, to repeat misinformation regarding his proposed state constitutional amendment, which seeks to prohibit state prosecutors from offering a plea bargain to a defendant "who is illegally present in the country if the result of the plea would be to permit the defendant to avoid removal from this country."

Harvey claimed that "cities like Denver" offer agricultural trespassing plea bargains "to be soft on crime when it comes to illegal immigrants so that they won't be deported." He stated that the resolution he offered for legislative approval to be on the November ballot will "say that prosecuting attorneys across the state of Colorado cannot plea bargain down to a misdemeanor or 'trespassing on agricultural land' in order to avoid deportation." After stating to Boyles, "And you know what the issue is," Harvey further claimed: "You don't immediately deport on a misdemeanor charge, but you do on felony."

However, neither Boyles nor Harvey mentioned that, as Colorado Media Matters has noted, under U.S. law illegal immigrants are subject to deportation by federal officials regardless of any state or local pleas to which they agree. Moreover, the charge of agricultural trespassing, offered by current Denver District Attorney Mitch Morrissey and by current Gov. Bill Ritter when he was Denver DA, is in fact a Class 5 felony, as Colorado Media Matters has pointed out.

Referring to the agricultural trespass plea bargains offered by Ritter's office, Harvey said, "I find it hard to believe that other district attorneys across the state are using this mechanism." In fact, the Rocky Mountain News reported on October 12, 2006, that from 1998 to 2006 in Colorado, "483 cases were sentenced under the charge [of felony agricultural trespassing] in 38 judicial jurisdictions," including Arapahoe and Jefferson counties.

Harvey's proposed amendment would "[p]rohibit[] a court from accepting a plea of guilty from a defendant who is illegally present in the country if the result of the plea would be to permit the defendant to avoid removal from this country." The measure also would allow courts to accept such plea bargains in cases where the prosecuting attorney showed that the defendant could not otherwise be brought to trial under the original charge, and if "the plea offer is not intended to permit the defendant to avoid removal from this country."

Promoting Harvey's appearance early in his April 17 broadcast, Boyles stated that the legislator "wants to amend the Colorado Constitution to ban plea-bargain deals to allow illegals to avoid deportation." After commending Boyles at the start of the interview for being "a hero on this issue," Harvey said his proposed amendment stated that prosecutors could not plea bargain cases involving illegal immigrant defendants "down to a misdemeanor or 'trespassing on agricultural land' " so that the defendants could "avoid deportation." He added, "I think it's a serious issue, because I think cities like Denver are using it to be soft on crime when it comes to illegal immigrants so that they won't be deported, but also, it's a good statement."

However, as Colorado Media Matters has noted repeatedly, while an "agricultural trespass" plea deal might help legal immigrants avoid deportation, aliens unlawfully present in the United States are always subject to deportation under federal law. Furthermore, the charge of agricultural trespass offered through the Denver DA's office is a class 5 felony -- not a misdemeanor. As Colorado Media Matters has pointed out, Colorado Revised Statute 18-4-504 (C.R.S. § 18-4-504) states that third degree criminal trespass "is a class 5 felony if a person unlawfully enters or remains on premises classified as agricultural land, with the intent to commit a felony." As The Denver Post reported on October 1, 2006, in a section titled "Taking the felony hit," Denver immigration attorney Jeff Joseph described the plea as "the felony agricultural trespass charge." The October 12, 2006, News article similarly described the charge as "felony farm trespassing."

Referring later in the broadcast to an April 16 News article in which Ritter spokesman Evan Dreyer was quoted as saying,
" 'Sen. Harvey should check with his Republican district attorneys who have also used that charge' " of agricultural trespassing, Harvey said, "I found it somewhat offensive." He added, "I find it hard to believe that other district attorneys across the state are using this mechanism." Boyles responded that Ritter "wasn't alone," adding, "I mean, it is fair to say that, you know, other people were using this 'gift' as well," without noting how widely the plea deal has been given in Colorado.

In fact, as Colorado Media Matters has noted, the News reported in its October 12, 2006, article that the newspaper's "review of cases involving pleas to felony farm trespassing also found that the charge is used by other Front Range district attorneys, with the volume of cases this year, two years after Ritter left office, on pace to reach a record high." The article further noted:

The News also reviewed the use of the trespassing charge statewide from 1998 to 2006. In all, 483 cases were sentenced under the charge in 38 judicial jurisdictions.

So far, 83 people have been sentenced under the charge this year, including 31 by Ritter's successor, Mitch Morrissey. That is on pace to reach 99 cases in 2006, more than the record 97 cases in 2004, state records show.

Additionally, the article reported that "[t]he News reviewed online summaries of 151 cases in which the defendants pleaded guilty to farm trespassing during Ritter's tenure. None of the summaries included whether the defendants were citizens or immigrants in the U.S. either legally or illegally. Court files generally don't contain that information, the News found."

From the April 17 broadcast of 630 KHOW-AM's The Peter Boyles Show:

BOYLES: Also, we'll have Senator Ted Harvey on the show this morning. First of all, let's take on the senator. He's a Republican state senator, and he wants to amend the Colorado Constitution to ban plea-bargain deals to allow illegals to avoid deportation. This, of course, is right down Governor Ritter's throat in terms of the Voorhis story.

[...]

HARVEY: Well, first off, I want to thank you for all your hard work on this issue. I think you have been a hero on this issue. But as you know, [state Sen.] Tom Wiens and myself a couple years ago carried a bill to outlaw sanctuary cities in the state of Colorado. And Denver has on their books an executive order which essentially makes Denver a sanctuary city, and I think that the Voorhis case just shows that not only do they have it on the books, but when Ritter was the district attorney, he was doing everything he could to implement that.

BOYLES: Absolutely.

HARVEY: And the resolution that I am carrying -- and Representative Mike May in the House is the House sponsor -- is the resolution that we're going to try to get through to put it on the ballot to say that prosecuting attorneys across the state of Colorado cannot plea bargain down to a misdemeanor or "trespassing on agricultural land" in order to avoid deportation. And, one, I think it's a serious issue, because I think cities like Denver are using it to be soft on crime when it comes to illegal immigrants so that they won't be deported, but also, it's a good statement. It's a great debate to have about the issues that are out there in the state when it comes to illegal immigrants.

BOYLES: It's interesting, when we spoke with [former Denver District Attorney] Norm Early when the whole Voorhis fiasco begins, and Norm Early said, never in his 10 years of DA did he ever give an ag trespass. And in the beginning of his tenure [Denver District Attorney Mitch], Morrissey continued to, and then after the blowup he discontinued it. But a lot of these guys, what we have found out is that their lawyers would actually plead them as illegals, and they weren't -- to get the better deal from Ritter.

HARVEY: Right. And you know what the issue is. You don't immediately deport on a misdemeanor charge, but you do on felony.

BOYLES: Sure.

HARVEY: And they're doing everything they can to make sure that they're not deporting illegal immigrants in the city of Denver. And I found it somewhat offensive -- I don't know if you read all the articles that were in the paper yesterday -- when the governor's spokesperson said, "Well, I think Senator Harvey needs to look at what other Republican district attorneys are doing across the state." And I find it hard to believe that other district attorneys across the state are using this mechanism to --

BOYLES: It wasn't used as many times as Ritter did it. Ritter, I think, set the stage for it. It goes back into some drug-court stuff. Ag trespass. And the Ritter people used it, I think, it was well over 152 times. And the people, some of the people that they sprung loose out of there -- Ted, I'm tellin' you, man, they were just horrible people. And the worst, best example you can give, obviously, is Walter Ramo, if that's his real name. Ernesto Estrada Medina, that may be his name. Who knows what his name is? And he's finally now in Atlanta in the penitentiary. But, as you know, even when they apprehended him in California, Denver didn't want him back. So, there's all kinds of -- I mean, there was enormous problems with the prosecution in Ritter's office. But he wasn't alone. I mean, it is fair to say that, you know, other people were using this "gift" as well.

— C.H.

Posted to the web on Thursday April 17, 2008 at 6:04 PM EST