El Paso District Attorney plans to appeal judge's ruling dismissing migrant 'riot' cases

El Paso District Attorney Bill Hicks is planning to appeal the "erroneous order" by a county judge who dismissed nearly 60 cases against migrants charged in an alleged "riot" at the U.S.-Mexico border in El Paso's Lower Valley.

"The appellate process is a very long process, but we anticipate that at some point in the future the Court of Appeals will come back and say, in fact, 'Judge (Ruben) Morales' rulings and orders were improper,'" Hicks said during a June 11 news conference.

County Court at Law #7 Judge Morales' ruling on June 10 said that he did not have jurisdiction over the 59 cases. There were questions about how the cases were filed in the court system.

"I want to emphasize why we think it's an erroneous order," Hicks said. "Number one, we think that the clerk's order is appropriate. There's nothing wrong with the clerk's order or the judge's order transferring the cases.

"Number two, if Judge Morales did not have jurisdiction, if he believed that there was something wrong with the order transferring jurisdiction to his court, then the appropriate remedy is to simply transfer them back to whatever entity had transferred it to him, in this case the grand jury court, and say, 'I don't have jurisdiction.'"

El Paso Public Defender Kelli Childress, whose office is representing a majority of the migrants, said taking the cases up on an appeal is wasting county resources.

"I am a little surprised that that's the route he's choosing to take," Childress said. "The law is clear in this regard, so it doesn't seem like this is a place to be expending limited justice system resources."

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Hicks blamed an error in transferring the case on the El Paso County Clerk's Office and the El Paso County District Clerk's Office. He added, "It has nothing to do with what the District Attorney's Office does."

"The (El Paso County) Council of Judges had gone through a very elaborate program to answer all of Judge Morales' questions and concerns regarding transferring the cases from the district courts to the county courts," Hicks said. "The district clerk had complied with that process. The county clerk had complied with that process … I don't know why the clerk's office had some clerical error."

The mistake in transferring the case occurred because of the way the District Attorney's Office originally filed the cases, not the clerks' offices actions, Childress said.

"The clerks have been following the instructions that they've been told to follow from everything I can see," Childress said. "This continued contention that the DA's office has nothing to do with how it's filed, the DA's office prepares the indictments and every indictment I've seen so far lists at the bottom of the actual prepared indictment that the matter is to be filed with the county clerk. That's error number one. The errors that have been made have been pointed out time and time and time again. I'm not sure why it hasn't been fixed.

"I don't know where all of the errors are occurring, but I can tell you when it starts with an indictment that on the face of it instructs that it be filed with the county clerk, things are bound to go wrong from there."

The migrants were facing misdemeanor "riot participation" charges in connection with an April 12 breach of a concertina wire barrier at the U.S.-Mexico border in El Paso's Lower Valley.

The migrants face a maximum punishment of 180 days in jail. They have already spent more than 60 days in jail awaiting their cases to go to trial. All of the migrants are facing federal illegal entry charges.

Despite the district attorney's plan to appeal Morales' ruling, the migrants are in the process of being transferred from state custody to federal custody, Hicks said.

The DA's office has offered time served plus one day sentences to the migrants as part of plea deals, he said, adding that it's important to continue trying the misdemeanor cases to get justice against anyone who breaks the law.

"There's still no finding of guilt," Hicks said. "If there's not a finding of guilt, then they're not held accountable until there's a finding of guilt."

More than 200 migrants have been charged in connection with several encounters with Gov. Greg Abbott's Operation Lone Star forces at the border . Most of the cases have been dismissed. Hicks' office is in the process of appealing others cases as well, he said.

The migrants represented by the El Paso County Public Defender's Office have rejected the plea deal offers.

"It's not my choice to accept or decline plea deals," Childress said. "That choice belongs to my clients. I'm not allowed to reveal what their reasons are, but I can tell you from a perspective of a criminal practitioner, it's common for people who are not guilty to insist on pleading not guilty."

Allegations of political motives, misuse of taxpayer money

Hicks questioned the motives of Childress in her efforts to get the cases dismissed.

"I think that Ms. Childress, the public defender, has a political motive," Hicks said. "I can't speak to the judge's motive, but if the public defender, if they wanted to go to trial on this case, they could have. They could have gone to trial at any point."

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Hicks did not elaborate. Childress countered she is looking out for the migrants' legal rights.

"I have absolutely zero political motivations, which is why I have stayed out of politics my entire career," she said. "My only motivation in my work is the best interests of my clients ... A huge part of his (news) conference was targeting me.

"I feel like if he would put as much effort into reviewing the facts of this as he puts into targeting me personally, as an attorney, as a professional, he might realize that what this all comes down to is these cases should never have been charged from day one."

Costly 'riot' cases?

Hicks said no extra taxpayer money is being used to handle the migrant cases.

"My message to anyone concerned about the District Attorney's Office spending money is that we spend money every day to prosecute criminal actions," Hicks said. "There's not any additional money or extra money that goes to prosecuting these cases that didn't go to prosecute every other case that we have in our courts. So, you can't say that, in our District Attorney's Office, we are dedicating specific money to these cases."

The cost of holding the migrants in jail while they wait for their cases to be resolved is costing taxpayers money, Childress said.

"I'd be surprised if we're not well over a million dollars so far." she said. "Every day they spend in the jail costs the taxpayers. Every time they're released from the jail and then brought back, that number goes exponentially higher."

Aaron Martinez may be reached at amartinez1@elpasotimes.com or on Twitter @AMartinezEPT.

This article originally appeared on El Paso Times: El Paso DA plans to appeal judge's dismissal of migrant 'riot' cases