The newest member of Tony Alamo’s defense team is appealing a U.S. magistrate judge’s ruling that the evangelist should remain jailed until trial because he is a flight risk and a threat to the community.
Houston attorney Don Ervin, who joined California lawyer DannyDavis and Texarkana attorney Jeff Harrelson less than a week ago as Alamo’s legal advocates, filed the 22-page motion late Tuesday.
Assistant U.S. Attorney Christopher Plumlee said his office will soon file a response to Ervin’s motion opposing Alamo’s release.
Neither Ervin nor Davis could be reached for comment Wednesday.
Alamo, whose real name is Bernie LaZar Hoffman, is facing a 10-count federal indictment in the Western District of Arkansas accusing him of bringing young girls across state lines for sex.
In this latest motion, Ervin alleges U.S. Magistrate Judge Barry Bryant overlooked two key tenets that should be considered when addressing four factors relevant to a detention decision.
Ervin’s motion asserts that Bryant first failed to give deference to federal statutes that favor release over detention and that, second, the judge failed to consider the presumption of innocence all criminal defendants are guaranteed under the Constitution. “Pretrial detention should be the exception rather than the rule in federal cases,” the motion cites from another case. “The wide range of restrictions available to courts ensures, as Congress intended, that very few defendants will be subject to pretrial detention,” the motion said. “Nothing in the detention order notes that Judge Bryant even considered the presumption of innocence or the legislative intent favoring pretrial release.”
Ervin’s motion reviews Bryant’s findings on each of the four factors and provides arguments supporting Alamo’s release in light of them.
In considering the crime charged, Bryant ruled the violent nature of the allegations involve “… a presumption of detention.”
Ervin argues defendants charged with crimes under the statute Alamo\ is accused of violating are eligible for pretrial release. Electronic monitoring, supervision by authorities and restrictions on a defendant’s associations, travel and residence are alternatives to incarceration the law allows, the motion said. “None of the alleged complainants testified and there was no proof adduced in the form of receipts, phone records, hotel bills, or anything further that the defendant took any minors across state lines for the purpose of sexual activity,” the motion said.
During the detention hearing, Bryant found the probable cause shown in Alamo’s indictment merited detention.
Ervin’s motion argues an indictment is not enough to warrant pretrial incarceration and that detaining a defendant because of one ignores the presumption of innocence.
The third factor, the defendant’s history and characteristics, was the focus of most of the detention hearing testimony.
Bryant’s ruling mentioned Alamo’s prior felony conviction for tax evasion and the church leader’s history of evading arrest.
In 1989, Alamo was charged in connection with the 1988 beating of a 12-year-old on church property in California. Alamo allegedly directed the public paddling of Justin Miller via speakerphone from a room nearby. From 1989 to 1991, Alamo eluded authorities. He’d been living under an assumed name when he was arrested in Tampa, Fla., in 1991.
After his conviction and sentence to six years in federal prison for tax evasion in 1994, the state child abuse charges were dropped. Prosecutors said at the time the expense of a trial wasn’t warranted in light of the time he was serving for his federal offense.
Davis, who represented Alamo at a hearing on the child abuse charges, said the case was dismissed because of “… its own failed merits.”
Ervin’s motion argues that Alamo’s prior felony conviction was nonviolent and thus isn’t evidence of a community threat. While on pretrial release for the income tax case, Alamo cooperated and wore an electronic monitor, the motion said.
Bryant’s detention order mentions the testimony of former followers who claim to have been beaten with a paddle. Ervin accuses one witness, Spencer Ondrisek, of having a “… personal and heavily vested interest in stating the purported beatings occurred.” “Specifically, Ondrisek has civilly sued defendant in this same jurisdiction and in the same court as this criminal case is pending and therefore has motivation to state there were alleged beatings,” the motion said. “The government did not prove … that any alleged
Bryant ruled Alamo has no actual legal title to businesses or properties that would keep him in the area. Ervin argues that property ownership isn’t required for pretrial release and that testimony during the detention hearing seemed to prove Alamo has strong ties to the area, which would support the defense’s contention he would not flee.
In evaluating the fourth factor, danger to the community, Bryant again referred to beatings and noted that followers are allegedly instructed to lie to law enforcement to protect Alamo.
Ervin’s motion said Bryant believed the testimony “ … without substantive proof.”
Ervin also claims Bryant failed to consider Alamo’s failing health as he should have under the law.
“Nothing in Magistrate Judge Bryant’s order notes states he even discussed the defendant’s age, his heart condition, his blindness, his glaucoma, his diabetes and his digestive problems,” the motion said.
“The Magistrate Judge, contradictory to the statute, did not consider these factors, which clearly overcome any presumption the defendant is a danger to the community, let alone a flight risk … ”
In the motion, Ervin states Alamo’s health is being threatened by life in jail.
Pepper spray meant to control unruly inmates near Alamo is harming his already waning eyes, the motion said. Walking with his hands cuffed behind his back has caused falls on concrete floors, and being permitted to exercise only once per week isn’t helping his diabetes, Ervin alleges.
Also, meetings with his lawyers, which are necessary to prepare his defense, have been made difficult by visitation rules, the motion said.
Once the government has responded to Ervin’s motion, U.S. District Judge Harry Barnes will rule on Ervin’s appeal of the detention order. Alamo is scheduled for a jury trial May 18