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Sitting in Texas prisons, hundreds of migrants charged with trespassing under Gov. Greg Abbott’s ongoing “catch and jail” border security initiative have been waiting months for their first chance to appear before a judge.
Retired judges and prosecutors from across the state have been enlisted to help process the constant stream of new cases. But based on the current pace of the small-town courts through which the misdemeanor cases must pass, a defense group estimates that migrants arrested this month in rural Kinney County will wait in prison up to a year — the maximum jail sentence for trespassing — before they are even able to appear virtually in court and enter a plea of guilty or not guilty.
Until now, retired judges picked by the state have often agreed at the mens’ first court hearings to release them from state custody on no-cost bonds while their criminal cases slowly continue through the new judicial process for migrants. Other men who can afford their cash bonds are let out earlier. The released men typically are transferred to federal immigration authorities, after which they are either further detained, deported or released into the United States pending asylum hearings.
But a controversial shakeup by the county judge in conservative Kinney County, which accounts for the large majority of Abbott’s trespassing arrests, may lead to even longer detentions, potentially keeping men who can’t post a cash bond in prison indefinitely unless they plead guilty at their first hearing in exchange for a sentence of time they’ve already served.
This week, Kinney County Judge Tully Shahan canceled hearings for 20 men and dismissed the three retired judges — two Republicans and a Democrat — who had been hearing the majority of trespassing cases in his county, according to a letter obtained by The Texas Tribune. Instead, the region’s administrative judge said, Shahan himself has handpicked five county judges he hopes will help him with the heavy caseload brought on by Abbott’s Operation Lone Star arrests.
“My guess is he’s friends with these folks,” said Stephen Ables, the presiding administrative judge in the region who appointed the three retired judges from a state-provided list to help Kinney County. “He feels they probably understand West Texas.”
Unlike the visiting judges, Shahan has not allowed migrants to be released on no-cost bonds after they plead not guilty in his court. Instead, they stay in the state prisons that Abbott retooled as jails for immigration-related crimes while they await future court proceedings or a trial date.
Shahan did not respond to emailed questions about his decision, and his court coordinator said the judge was still out of the office after contracting COVID-19. But defense attorneys have raised the alarm. They argue that Shahan is trying to shunt aside the current judges because he doesn’t like them releasing migrants after months in prison. They call his move ethically unsound, retaliatory and an effort to coerce guilty pleas out of migrants.
“This is clearly retaliation against the judges who have been releasing hundreds of people and dismissing deficient cases under Operation Lone Star and is a threat to the rule of law,” said Amanda Woog, executive director of the Texas Fair Defense Project.
Defense groups noted that the judge’s letter was sent the day after the county’s misdemeanor prosecutor, Brent Smith, sought to bar the visiting judges from dismissing cases or reducing bond amounts in the trespassing cases. Smith, who declined to answer questions Thursday because the case is pending, argued without submitting evidence that the defense attorneys and current judges were settling motions without including the prosecution. Texas RioGrande Legal Aid, which represents hundreds of migrants accused of trespassing, denied the allegation.
In condemning the timing of Shahan’s decision, defense attorneys also pointed to the legal aid group’s recent request for all of its remaining 153 clients in prison to be released on no-cost bonds because the men have been in prison for months without a court date. The visiting judges were expected to hear many of the cases as Shahan was out of the office after testing positive for the coronavirus.
The move also follows a trend in the hearings of men pleading not guilty to the crime of trespassing, with only about 10 men having accepted guilty plea bargains in Kinney County so far. Texas judges are required to warn defendants at the hearing that criminal convictions can negatively impact immigration proceedings. More than 30 charges have been dismissed in court, and dozens more men have been released on no-cost bonds after pleading not guilty.
Kristin Etter, an attorney with Texas RioGrande Legal Aid, argued that Shahan and Smith’s moves come as the new state criminal justice system — quickly erected in response to a rise in border crossings — is cracking with pushback from migrants and their defense attorneys.
“The only way they’re going to make this work is if it’s a giant plea mill,” she said.
Since July, state police have arrested an average of 90 men a week for allegedly trespassing in Kinney County. The men are often found walking across private ranches or at a remote rail yard in the rural border county, jailed as part of Abbott’s border security clampdown to file state charges against migrants suspected of having crossed the border illegally. A spokesperson for the Republican governor seeking reelection said the state’s new arrest initiative is meant to “stop this revolving door and deter others considering entering illegally.”
But the system has been plagued with missteps since its onset, including wrongful arrests of migrants crossing with their families and migrants illegally being detained for weeks without charges filed against them or without being assigned a lawyer. And despite Abbott pouring nearly $3.2 million in state funds to boost Kinney County’s efforts, the backlog continues to grow. Throughout more than a month of first court appearances for migrants, defense attorneys have complained that their clients had already been in prison for 70 days, then 90 days and now beyond 100 days, while legally presumed innocent.
That increasing backlog is why cutting judges from hearing the trespassing cases is illogical, Texas RioGrande Legal Aid argued in a letter to Ables on Thursday that pushed back on Shahan’s decision.
“All of our clients have been held in state prisons at taxpayer expense for months, ... They are finally on dockets for December before one of the assigned judges whose authority has been called into question by Judge Shahan’s attempt to remove them,” the letter read. “If Kinney County has filed more cases than it can effectively administer, the solution is to bring in more judges, more prosecutors, more court staff, and more defense lawyers, not to remove the judges who have heard the vast majority of OLS cases in the county.”
But court officials say Shahan is within his rights to assign new county judges to help him share his case docket, even if his motive is called into question. And along with Shahan potentially adding fellow county judges to his bench, a county spokesperson said Smith is also hoping to get extra funding to hire additional prosecutors, court officials and office space in the sparsely populated county.
Abbott’s office did not respond directly to questions about new funding or concerns over delayed migrant hearings, but spokesperson Renae Eze noted the money already sent to Kinney County is in part to pay for additional court costs for Operation Lone Star cases.