By Kelli Stopczynski (kstopczynski@wsbt.com)

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 WSBT-TV

8:06 p.m. EDT, August 31, 2011

ELKHART COUNTY – Police have released the identity of the man who burned to death inside a car after two stabbings, a deadly house fire and a police chase in Elkhart County last week.

DNA results from the Indiana State Police laboratory confirm the body inside that burned car was 31-year-old Francisco Macias. An Elkhart County Superior Court judge also explained to WSBT why he couldn't deport Macias in a 2008 domestic violence case. 

Investigators say Macias brutally stabbed two women in the early morning hours on August 22. He is also a "person of interest" in a house fire that killed a Jose Aguilar, 38, and two little boys – 7-year-old Adolfo Aguilar and 8-year-old Ricardo Aguilar – after someone threw a propane tank through the dining room window of a home on Grant Street while eight people slept inside.

WSBT also learned Macias might not have been a legal U.S. resident. Court documents from a 2008 domestic violence case indicate Macias was born in Mexico and was NOT a legal U.S. resident at that time. But because of privacy laws, Immigration & Customs Enforcement (ICE) can't say whether he was here legally on a green card.

The Elkhart County Superior Court judge in that case – Judge Evan Roberts – threatened to deport Macias, but instead gave him probation. In an e-mail, Judge Roberts responded to questions we had about the case. 

Email response from Judge Evan Roberts, received at 9 am Wednesday August 31:

Ms. Stopczynski:

Please consider this letter a response to the questions raised in your e-mail of August 29, 2011. Also, thank you again for permitting me an opportunity to respond via e-mail and I sincerely appreciate your patience as we just finished up a jury trial last evening (8/30/11). The answers below correspond directly to the questions raised in your earlier e-mail:

WSBT: Illegal aliens cannot legally have jobs in the United States, but standard terms of probation say the defendant must be employed while on probation. How did Macias’ immigration status impact your decision to put him on probation in 2009?

Judge Evan Roberts:  A defendant’s immigration status is among many considerations a sentencing judge must make in light of all the facts and arguments presented. These "facts" include, but are not limited to, the nature of the crime, the arguments of counsel, a defendant’s comments at sentencing, the wishes of the victim, the defendant’s prior criminal record (including immigration status), etc. etc. Everything must be digested and considered when entering a sentence. There is no "one size fits all sentence" and each case must be considered individually before a sentence is imposed.

WSBT: Why didn’t you turn Macias into Immigration and Custom Enforcement as part of the case?

Judge Evan Roberts: There is no requirement for a judge to "turn over" anyone to DHS (Department of Homeland Security - Immigration).  Notwithstanding, Elkhart Superior Court No. 1 routinely sends "notice" to DHS of a sentence imposed on someone who may not be legally in this country. The decision to take action rests exclusively with DHS, not a state trial court.  In this case, notice was not sent; although, Defendant Macias was clearly advised in open court that he could be deported. 

WSBT:  How does immigration status play a factor in your job as a judge when you must decide what types of punishments to hand down to criminals?

Judge Evan Roberts: The status of a Defendant is one factor (among many) to consider.  However, Indiana's Appellate Courts have mandated that trial courts cannot treat any defendant more harshly than any other citizen solely due to his/her national origin or alien status, but that does not mean a court must close its eyes to defendant's alleged illegal alien status and disregard for the law, including immigration laws.  Defendants are sentenced for the crimes they have pled guilty to or been determined guilty of.  I do not have the jurisdiction or right as a state court trial judge to "punish" defendants for being illegal as that authority and responsibility rests solely with the federal government.  Again, defendants are punished for the crimes they have pled guilty to or been found guilty of; which, herein, was misdemeanor domestic battery.

In this case, specifically, Defendant Macias was sentenced on his plea of guilty to Domestic Battery, a class A misdemeanor.  He was placed on reporting probation and successfully completed reporting probation including a forty (40) week batters’ intervention program at a certified batters intervention program in Elkhart County.  

Thank you again for allowing me the opportunity to respond to your questions.  R/S Evan Roberts, Judge, Elkhart Superior Court No. 1.