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After months of missteps and delays, the already sluggish court system handling misdemeanor cases of migrants arrested under Gov. Greg Abbott's border security effort has effectively ground to a halt after two Kinney County officials tested positive for COVID-19.
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More than 90 men arrested by the state on trespassing charges had their first court appearances abruptly canceled this week. Nearly 30 of them have been in state prison for up to three months without seeing a judge.
A county spokesperson confirmed Kinney County Judge Tully Shahan, who was to preside over one of four court hearings for migrant trespassing cases this week, and the county court coordinator had been diagnosed with COVID-19. Defense lawyers said they were told Sunday their clients’ hearings this week were canceled, with no insight into when they will be reset.
“They’re in limbo,” said Amrutha Jindal, a Houston defense attorney whose organization represents several migrants with canceled hearings. “Because this is a makeshift court, it doesn’t appear they have the standard backup procedures in place that a traditional court system would for when something like this happens.”
The migrants were arrested after Abbott flooded the rural border county with state police in July, ordering them to jail men suspected of illegally crossing the Texas-Mexico border for state crimes. Almost always, migrants are arrested only for alleged trespassing, apprehended at a rail yard or on private ranches.
The system, which so far has resulted in nearly 2,000 trespassing arrests in Kinney and Val Verde counties, has been racked with problems since it began. Police have wrongfully separated asylum-seeking families to make arrests, prosecutorial delays have led to prolonged and illegal detention, and small court systems have become backlogged with misdemeanor cases that can at most result in a sentence of one year in jail.
In Kinney County, it took months after mass arrests began before any court hearings were held, and those themselves have been fraught with missteps. In their initial court hearing before a judge, defendants are arraigned, with the criminal charge presented to them. They are asked to plead guilty, not guilty or no contest. In the migrants’ cases, defense lawyers often also raise legal issues that have surfaced in the weeks or months since their arrest.
“It’s literally like winning the lottery when their case gets set for arraignment,” said Kristin Etter, an attorney with Texas RioGrande Legal Aid, which represents hundreds of migrants arrested under Abbott’s Operation Lone Star.
Unlike in typical criminal justice systems, Etter said a rotating list of prosecutors and judges in the migrant trespassing system keeps her from being able to quickly negotiate lower bonds or releases for her clients. And as court hearings are few and far between, the first court appearance often is months after the arrest and is the first time she can raise any motions, like the faulty prosecutorial paperwork that has led to dozens of cases being dismissed.
Of about 90 men accused of trespassing that were docketed for their first Zoom appearance before a judge this week, 29 are still in prison, according to the Texas Department of Criminal Justice. That means they have not posted bond, which typically ranges from about $1,000 to $5,000. The incarcerated men have been in prison for weeks or months since their arrests, with at least several locked up for more than 90 days, Etter said.
In previous hearings, several of the rotating judges hearing migrant trespassing cases have opted to release incarcerated migrants on no-cost bonds after their first court appearance while their case is pending if their case is not dismissed and they plead not guilty, which almost all migrants have done.
With their clients’ hearings canceled this week, Jindal and Etter said they are continuing to push for the men’s release on no-cost bond, hoping to get agreement from the county attorney or have other judges hold hearings solely on reducing bond amounts so the men can get out of prison while awaiting a court date.
“I definitely don’t want to leave them incarcerated without a court date on the calendar,” Jindal said.
Matt Benacci, a spokesperson for the county, said makeup dockets are expected to be scheduled when hearings resume, hopefully next week. He said Kinney County Attorney Brent Smith believes the court “will be double-timing it.”
Meanwhile, the men will wait in prison.
“They were crushed,” Etter said Monday after her organization spoke to its 18 imprisoned clients whose hearings were canceled this week. “This is something that they’ve been looking forward to for a long time, and to not only tell them that our court date is canceled but also that we have no idea when it’s going to get reset ... it’s hard.”