Updated at 3:40 p.m.: A suspect accused of raping a freshman girl March 16 at Rockville High School was denied bond during a bond review Thursday in Montgomery County District Court after his attorneys presented evidence they argued attested to his innocence.
Judge James Sarsfield said he was “not convinced” the evidence presented by Jose Montano's attorneys warranted a change in Montano's bond status.
Montano, 17, was initially denied bond March 17 after his arrest along with another student, Henry Sanchez Milian, 18, for the reported rape of a 14-year-old. But on Monday, his attorney, David Wooten, filed a request for a bond review with the Rockville court, citing new evidence that the sex was consensual.
Wooten and Maria Mena, both representing Montano, argued in court Thursday that the girl texted Montano the night before the incident saying she agreeed to have sex with him the next day at school. They argued that her failure to report that text conversation and information about her previous sexual contact with Montano to a police detective in an initial conversation calls her reliability into question.
“The dynamics of the case have changed,” Mena said. The girl and Montano also exchanged photos and video in which they discussed meeting the next day, according to Montano's attorneys.
Prosecutor Mary Herdman argued that regardless of any previous consent the girl may have given to Montano, the act was not consensual and that the defendant and Sanchez Milian appeared to conspire together to commit the assault.
Herdman said the Montgomery County State's Attorney’s Office also has images of both Montano and Sanchez Milian flashing MS-13 gang signs.
MS-13 is a criminal gang with a growing presence in Montgomery County and other areas around Washington, D.C. Many of its members come from El Salvador or other Central American countries.
The attorneys for the defendant said they were not aware of the photos, and Andrew Jezic, an attorney for Sanchez Milian, told reporters outside the courthouse that Immigrations and Customs Enforcement had detained his client and found no gang affiliations.
The girl told Montgomery County police she met Montano and Sanchez Milian in a school hallway at about 9 a.m. March 16 and said they were walking near the gym area when Montano asked for sex. After she refused, Montano pushed her into a boys bathroom, and he and Sanchez Milian took turns assaulting her in one of the stalls as she repeatedly told them to stop and cried out in pain, according to her report to police.
She told police she knew Montano as a friend and did not know Sanchez Milian personally, according to court documents.
Sarsfield said he was open to the idea that the girl may have consented to have sex the day before the alleged attack, but said he did not think that changed the facts of the case or her previous testimony to police.
“Assuming that to be true, which for the purposes of this motion I will, I didn’t see any evidence that the agreement was un-revocable,” he said.
The girl had the opportunity to say no the next day in the hallway when there was at least one other witness, Sarsfield said. “She declined at that point,” he said, pointing to her account as given to police, in which she said she refused to have sex after Montano asked while they were in the school hallway.
Sarsfield said he didn’t think her possible consent over text the previous day “extends to consent” for other acts with a second party.
Montano was not present for the bond review. He was being held at a juvenile detention center on the Eastern Shore and was set to be transported to a Montgomery County center so that he could appear in court over closed circuit television, but the transportation was delayed.
Herdman argued to postpone the bond review until Montano could be present, but Sarsfield denied the request.
Herdman contested the evidence presented by the defense, saying prosecutors were not aware of evidence of a previous sexual relationship between the girl and Montano. The defense also argued that Montano and the girl exchanged texts both before and after the reported rape, but Herdman said the conversation afterward was one-sided. Montano texted her saying "Hi" and she did not respond, Herdman said.
The State’s Attorney’s Office also has “communications between the two boys from the day before,” in which they plan the attack, she said.
Montano and Sanchez Milian discussed where it would take place and how, and whether or not to use condoms, Herdman said. Herdman alleges that they agreed Montano would get her to take her clothes off, and then Sanchez Milian would come in and threaten to tell a teacher in order to get her to agree to perform sex acts.
“This was clearly a conspiracy between this defendant and the other defendant to get her into that bathroom and rape her,” Herdman said.
The rape case has cascaded into an intense public debate over the issue of immigration, as both Montano and Sanchez Milian are undocumented immigrants. Montano entered the country illegally from El Salvador about eight months ago, while Sanchez Milian arrived from Guatemala seven months ago.
Montano is scheduled to appear in district court again Friday for a preliminary hearing, although prosecutors said they would be requesting the court date to be pushed back a week as evidence continues to come in daily.
Montano is being charged as an adult for the crime, for which his lawyers said he would plead not guilty.
Sanchez Milian will also plead not guilty, his lawyer, Jezic, his lawyer, said. He is scheduled for a preliminary hearing in Montgomery County District Court on April 14. Jezic said Thursday that he “might” consider a bond review request for Sanchez Milian.
Jezic said there was a “rush to judgment” in the case and that many in the public already assume his client Sanchez Milian and co-defendant Montano are guilty.
“This case is a classic case demonstrating the importance of the presumption of innocence,” Jezic said. “Now that we know that the narrative is very different, it illustrates everybody should keep an open mind and wait for a verdict in this case.”