A dead baby, a year in jail, a legal tangle

Immigrant: An 18-year-old Guatemalan has been found incompetent to stand trial in the death of her newborn son but cannot be freed without federal approval.

January 13, 2000|By Chris Guy | Chris Guy,SUN STAFF

DENTON -- Nearly a year after being jailed in the death of her newborn son, Erminia Escalante Berdugo has been found incompetent to stand trial but cannot be released without the approval of federal immigration authorities.

Found by two psychologists to be mildly retarded, with an IQ between 52 and 62, the wan 18-year-old, who entered the country illegally in 1998, appeared in court yesterday for a hearing to decide whether she is able to help in her defense.

Circuit Judge William Horne said he remained bound by a detainer order filed in February by the federal Immigration and Naturalization Service noting that if Berdugo is released, the INS wants 48 hours to decide whether to take her into federal custody and start deportation proceedings.

Despite the charges against her, for which she could still be prosecuted if she is later found competent, Berdugo has remained an enigma as much for prosecutors as for supporters. The latter say the nearly illiterate Guatemalan is a victim of a court system she cannot comprehend.

Berdugo was arrested in February and charged with first-degree murder after emergency units were called to the run-down trailer where she lived with her aunt and uncle, poultry plant workers Flora Perez Diaz and Jaime Escalante.

On the bathroom floor, emergency workers found the body of a 3-pound, 6-ounce boy who had been placed in plastic grocery bags with his umbilical cord attached.

Berdugo, impassive during yesterday's proceedings, is described as speaking only when spoken to in jail visits with her lawyers and local Roman Catholic leaders who minister to a growing Latino community in rural Caroline County.

Delia Gnall, a court-appointed interpreter who has spent many hours with Berdugo, said the young woman has "a very crude" mastery of Spanish. A Mayan Indian from a remote mountainous region, Berdugo has learned a few words of English since entering the country in December 1998.

Her attorneys and others who have rallied around Berdugo say she is little more than a child. They believe she was raped before leaving Guatemala and that she did not know she was pregnant until she gave birth.

A job packing eggs

Like many other Latino immigrants -- legal and illegal -- who have arrived on the Eastern Shore in recent years, Berdugo quickly found a $5.50-an-hour job packing eggs at a Kent County plant.

"She seems peaceful. She doesn't talk much," said Sister Francisca Mota, a member of the Catholic Diocese of Wilmington's Hispanic Ministry Team who visits Berdugo weekly at the Caroline County Detention Center. "Even though she knows me, I have to pull conversation from her."

Berdugo, who attended school through third grade, told a state health department psychologist who examined her in October that she made it to the United States with the help of a girlfriend who arranged transportation and handled their money.

Psychologist Robert E. Rouse found Berdugo deferential and soft-spoken and wrote that "mental retardation and vast cultural differences" leave her unable to understand the charges she faces.

Thomas McCarthy Sr., an Annapolis lawyer who volunteered to help defend Berdugo after reading news articles about her case, has criticized county prosecutors, who also charged Berdugo with second-degree murder, manslaughter, first-degree assault, second-degree assault and child abuse.

"The first-degree murder charge is nothing but a bargaining chip, plain and simple," McCarthy said. "There's a total lack of common sense. If ever there were an ideal candidate to wind up a passenger on a railroad, this girl is it. She's completely defenseless."

McCarthy said Berdugo had never been to a doctor until carried by ambulance to an Easton hospital Feb. 1. When she was arrested a day later, Berdugo thought jail was a cave where she would stay until her family raised money for her release, he said.

"There is zero evidence of any criminality here," McCarthy said. "I believe that in America, she has rights even though she is not a citizen. I think this was simply a rush to judgment."

Deputy State's Attorney Robert Greenleaf said testimony in a five-hour preliminary hearing in March justified the charges. According to testimony, Berdugo delivered her baby in a toilet, placed the child in plastic grocery bags and left him on a bathroom floor.

Nearly two hours passed before emergency units were called.

Death ruled homicide

A state medical examiner ruled the infant's death a homicide caused by drowning or asphyxiation. Dr. Margrita Korell said during the March hearing that although born prematurely, the infant might have lived with proper treatment.

"Clearly, this was more than your cursory hearing," Greenleaf said. "There were four or five hours of testimony. This was not a case where a prosecutor railroaded anyone."

Prosecutors and defense attorneys will confer with immigration officials today. Berdugo could be placed in the care of the state health department, but supporters hope she will be allowed to live with a Queen Anne's County couple, David and Jean Lusby, who are asking to be appointed her guardians.

During yesterday's hearing, the Lusbys elicited Berdugo's only show of emotion. She clutched their hands and smiled at them as she was led from the courtroom.

"The whole issue about her status as an illegal alien will have to be dealt with separately, but I believe a terrible injustice has already been done," McCarthy said. "She leaves a repressive Third World regime to come to work in America and ends up spending a year in jail."

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