MInneapolis man freed after 16 months; charges dismissed

Judge Kevin Burke dismissed a defendant's murder charge after he spent 16 months in jail. Burke said mere presence at a crime is not criminal.

By ROCHELLE OLSON, Star Tribune

Last update: February 29, 2008 - 10:06 PM

A Hennepin County district judge dismissed an indictment against a Minneapolis man who spent 16 months in jail, saying he should not have been charged with murder because he was merely a passenger, not a player in the killing of Carlos Hernandez Perez.

"To put it bluntly, this was not the criminal justice system's finest hour," Judge Kevin Burke wrote in an order released late Thursday.

Jose Manuel Saldivar-Alvillar, now 18, was one of five people charged in the April 2006 gang-related killing of 17-year-old Perez in Bloomington. The other four have been convicted or pleaded guilty.

Saldivar-Alvillar's lawyer died shortly before his trial was to begin. His new lawyer, James Austad, argued for dismissal. "It's a tragedy all around," Austad said Friday.

Burke noted that prosecutors never sought to indict Saldivar-Alvillar; the decision was made by the grand jury. He said the grand jury likely was confused about the evidence necessary to support an indictment against him.

Hennepin County Attorney Mike Freeman said Burke's order "aptly and sensitively stated the issue." He said when a grand jury indicts, his office must go forward.

Saldivar-Alvillar did not initiate the attack, touch a gun, leave the truck or see the shooting. "Mere presence at the scene of a crime is not a criminal act," Burke wrote.

Jose Saldivar-Alvillar remains in jail on a federal immigrant hold.

Rochelle Olson • 612-673-1747

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