By Dan Morse
Maryland prosecutors said Friday they will drop rape and sex offense charges against two immigrant teens accused of attacking a 14-year-old classmate in a high school bathroom stall in a case that shocked local parents, attracted international and White House attention and stoked the debate about illegal crossings into the U.S.
After a court hearing Friday morning, prosecutors said they will drop the sex assault case against Henry Sanchez Milian, 18, and Jose Montano, 17, who was ordered released from custody.
Montgomery County State’s Attorney John McCarthy said at a press conference that “the original charges cannot be sustained and prosecution is untenable” because of “substantial inconsistencies” from witnesses.
McCarthy, who was joined by the county’s top leaders, said the decision to dismiss the charges followed an extensive investigation that included additional interviews and a review of medical records, school security videos, and phone and computer records.
“As prosecutors we always go where the evidence takes us,” McCarthy said, without taking questions from reporters.
Defense lawyers for both defendants have said the sex acts were consensual and that text messages and school surveillance videos did not substantiate the girl’s claims she had been pushed from a hallway into a bathroom at Rockville High School on March 16 where the suspects took turns assaulting her in a stall as she tried to break free.
Prosecutors declined to comment before the hearing about the decision in the case that rocked the suburban community near Washington, D.C. But they had signaled in an early court proceeding that they were having challenges corroborating events the girl described to Montgomery County Police detectives and that led to the arrests of Sanchez Milian and Montano.
The severity of the reported assault and the fact the two accused teens had entered the U.S. illegally only months earlier drew heated comments from the White House, in the State House and among demonstrators, callers and emailers who weighed in with the county.
Jezic, the attorney for Sanchez Milian, said he was grateful to be told of the dropped charges during a call Thursday night. But in that same call, he said, prosecutors told him they would be pursuing a case for possession of child pornography against Sanchez Milian, a move confirmed by online court records posted late Thursday.
The allegations, Jezic said, involved lewd images on Sanchez Milian’s cellphone, which Jezic said had been sent by the girl to Montano who forwarded them to Sanchez Milian.
“This is selective prosecution of elective promiscuity,” Jezic said, adding that “it is hardly uncommon behavior for teenagers.”
Montano’s attorney Maria Mena said prosecutors told her that Montano would be charged in juvenile court with two counts each of possession and distribution of child pornography.
She said prosecutors “did the right thing” by dropping the most serious charges, but called the subsequent child pornography charges a “gross misapplication” of a law intended to go after adults.
“I do feel what they are doing now is egregious,” she told reporters.
In the immediate wake of the arrests, local police were prompted to speak about the merits of their investigation as defense attorneys asserted the encounter was consensual.
“This was a brutal attack,” Montgomery Police Chief Tom Manger said on March 22. “I am confident that we have a strong case.”
That case became explosive as political factions seized on its volatile mix of crime and illegal immigration.
Montano came to the U.S. from El Salvador, and Sanchez Milian from Guatemala. They were stopped at the border, detained, then allowed to continue on to relatives before they enrolled in Rockville at a ninth grade level.
White House press secretary Sean Spicer was asked about the case during a daily briefing and said “the idea that this occurred is shocking, disturbing, horrific,” Spicer said.
“Part of the reason that the president has made illegal immigration and crackdown such a big deal is because of tragedies like this . . . Immigration pays its toll on our people if it’s not done legally, and this is another example,” Spicer said.
The White House press office did not immediately respond to requests for comment on Friday.
Demonstrators converged on county government offices and hundreds of calls, emails and texts went to the school system bashing undocumented immigrant students, assailing school policies and demanding the ouster of the superintendent. Police provided protection at the school after the threats.
In Annapolis, politicians referred to the case in denouncing legislation that would have limited cooperation between local police and immigration authorities; the legislation was defeated weeks later.
Immigration advocates and the county schools superintendent publicly spoke out about the charges, voicing horror and regret and also saying politicians should not judge immigrant children seeking a better life for themselves by the disturbing case. “We are a public school system, and we serve all of our students when they come to us,” Schools Superintendent Jack Smith said.
Sanchez Milian’s father, Adolfo Sanchez-Reyes, was drawn into the rippling effects of the investigation when immigration agents looking into the suspects’ backgrounds concluded the father was in the country illegally and placed him in custody. His immigration case is pending, said his attorney, Himedes V. Chicas.
It was not immediately clear what immigration consequences may await the two teens. After the hearing, Mina told Montano’s family members that ICE agents were at the courthouse monitoring the case. She said she would fight any efforts to deport Montano.
“We’re going to fight this all the way to the end,” she told the family members
According to the defense lawyers, the day before the incident, the girl and Montano, exchanged explicit text messages and images about planning to have sex in the school. Video from school cameras showed Montano and the girl walked together into the bathroom at the time of the incident, according to the attorneys, who also said the girl’s account of events was not consistent as the investigation progressed.
“At no point did the girl express any reluctance with any sex acts,” said Jezic. “From the night before, she actively planned a sexual encounter.”
Detectives described a harrowing attack in the affidavits they filed for the rape arrests.
On March 16, they had been called to the school after the 14-year-old girl told a staff member she’d been raped. The detectives spoke to the girl, who according to their affidavits, told them she knew Montano, and they had been talking in a school hallway that morning.
She said he asked to have sex and when she refused, pushed her into a boys’ bathroom and pulled her into a stall, according to the police affidavits. Sanchez Milian then entered the stall, according to girl’s account in the affidavit, and both raped her as she cried out and told them to stop.
Montano “denied having any sexual contact with [the victim]. Montano stated they went into the bathroom to tell jokes,” detectives wrote after talking with him.
They also spoke with Sanchez Milian who “initially stated nothing happened,” the police affidavits state, “then changed his statement multiple times and admitted having sex with the victim with his friend Montano.”
Faced with the choice of filing charges, or not arresting the suspects as an investigation continued, the police brought charges. Hours later, the two teens were locked in the Montgomery County Detention Center.
Prosecutors took over the case and as they reviewed text messages, found there may have been an agreement between Montano and the girl that they would have sex. They also looked into whether Montano and Sanchez Milian - in text messages - had plotted to turn the planned encounter into a rape.
At a court hearing March 30 over setting bond, Assistant State’s Attorney Mary Herdman told a judge evidence was being discovered daily - some of it bolstering the accusations and some not. At that point of the investigation, though, she said text messages between the suspects showed they had at a minimum planned to commit a crime.
“This was clearly a conspiracy between this defendant and the co-defendant to get this victim into that bathroom and rape her and commit other sexual assaults against her,” Herdman said in court.
But Jezic said prosecutors concluded they had to drop the rape case against his client. And he thinks they should do the same for Montano.
Jezic said he knows many people who followed the case will question that group sex in a high school bathroom could be consensual.
“It does seem improbable, if you are a person who is not connected to contemporary high school culture,” he said.
On Friday, Smith, the superintendent issued a statement assuring parents that the school system is continuing its review of safety procedures.
“Our thoughts and prayers continue to be with the Rockville High School community, particularly the female student who has been at the center of this. I know that the staff and students remain focused on healing as a community and ending this school year “Rockville Strong.”’