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Thursday, May 1, 2014 - 10:50pm
Las Cruces, NM (KDBC) — A Las Cruces family has lost "faith" in the Doña Ana District Attorney's office, after they say they were never informed a former theater arts teacher was released from jail with an unsecured bond.
Our sister station NewsChannel 9 broke the story on KTSM.com Wednesday morning.
Philip Hernandez, 25, was released from jail Tuesday after an agreement between his defense attorney and prosecuting attorney was approved by a magistrate judge.
On April 16, a 17-year-old Centennial High School student revealed to school administrators and a school resource officer that Hernandez had allegedly touched him inappropriately on multiple occasions.
The student revealed that Hernandez began touching and fondling him in October 2013 and the inappropriate contact continued until the fall semester ended in December. Detectives then learned that Hernandez touched the boy at least one more time when classes resumed in January.
Sometime after the January incident, Hernandez allegedly became upset with the 17-year-old and began to ridicule and talk negatively about him in front of other students. The student alleges that the sexual contact occurred both on and off campus.
Hernandez resigned from his position before his arrest.
Hernandez was originally booked into the Dona Ana County Jail on a $15,000 cash-only bond set by Magistrate Judge Conrad Perea.
Eunice Calderazzo, the public information officer for the D.A.'s office, tells NewsChannel 9 prosecuting attorney Roxanne Esquibel and defense attorney Michael Stout reached an agreement to allow Hernandez to be released on an unsecured bond, or a bond not requiring him to post any money for bail. A different judge, Magistrate Judge Ken Wingenroth, signed off on the agreement.
"It's not a common practice, because judges like to track their own cases... But I think the fact that there were two different judges here would have no effect on the outcome. Certainly we weren't judge shopping," said District Attorney Mark D'Antonio in an interview with NewsChannel 9 Wednesday.
D'Antonio also told NewsChannel 9 Wednesday the family had been notified of Hernandez' release, albeit late.
However, a family member reached out to NewsChannel 9 Thursday, saying they only knew of his release after reading NewsChannel 9's story.
"Giving (Hernandez) special treatment is hurting my whole family," said the family member, who we are refraining from identifying in order to protect the identity of the alleged victim.
According to New Mexico Victims' Rights Laws, a victim has "the right to notification of court proceedings."
NewsChannel 9 asked D'Antonio Thursday about the discrepancy.
"That was the information I received. If I'm mistaken I apologize, but I was told just prior to our meeting, by Roxanne Esquibel herself, that notification was made," he said.
"I don't believe anything that we did put them in any more or less danger or hopefully didn't elevate their anxiety. If I did elevate their anxiety in my office, then I would certainly apologize."
We also fact-checked D'Antonio's statement Wednesday to NewsChannel 9.
"We have to weigh the risk factors. We cannot possibly put everybody in jail. There's no room," he said.
When NewsChannel 9 questioned the Doña Ana County Detention Center leaders about the jail's capacity Tuesday, we were told they were not at full capacity.
D'Antonio clarified what he said in an interview Thursday.
"It's not that there's no room in the jail. Every time you put someone in jail though, it's a cost to our society. It's my personal opinion, and it has been for 2 years, that the people who belong in jail are the people that are violent, are going to cause society some harm, or who are going to flee from justice," he said.
However, Las Cruces Police are concerned Hernandez would leave.
"One of the reasons he had submitted his resignation is because he wanted to travel out of state," said LCPD spokesman Dan Trujillo.
Yet D'Antonio supports RoxeAnne Esquibel's decision, saying Hernandez has "strong ties to the community."
"The defendant has a prominent family, and that counts for a lot. Not that it has to do with money, but it has to do with stability in the community," he said.
Hernandez's father, Steven L. Hernandez, is a well-known environmental lawyer in Las Cruces.
We reached out to Steven Hernandez. His son's attorney, Michael Stout, returned our calls.
"Having a stable family situation makes a release pretty standard," said Stout.
"Philip Hernandez is a talented and dedicated young teacher who has worked hard
to teach and inspire students in English and theatre. His relationships with students and parents have been energetic and helpful - and clearly legal," said Stout.
"Those familiar with Philip understand that he is innocent; he has not committed a crime. He feels embarrassed for those close to him that such charges would be made, but he will defend vigorously against any claim of impropriety, and will be cleared," he said.
"After this situation is resolved he hopes to continue to teach and work in the theatre arts," said Stout. "The release of Mr. Hernandez is as it should be given his good character and all other circumstances. He will not entertain any other city of residence for the immediate future."