After four days of hearings last week, a judge dismissed about 370 criminal cases in El Paso because of prosecutorial delays. The El Paso Public Defender’s Office, which sought the dismissals, says this is just the beginning: It has more than 1,000 additional cases eligible to be dismissed and plans to file new motions soon.
Between Aug. 15-18, the El Paso Public Defender’s Office requested about 390 dismissals under a section of the Texas Code of Criminal Procedure that requires prosecutors to seek indictments within 180 days of arrest. About 20 of those requests were withdrawn; the rest were granted.
The purpose of article 32.01, according to the dismissal motion, is to prevent people from being jailed or placed under bond conditions for lengthy time periods before they’re charged with a crime.
The cases dismissed ranged from Class B misdemeanors, which carry sentences as high as six months in county jail, to first-degree felonies, which carry sentences up to 99 years in prison.
District Attorney Yvonne Rosales has stressed that the dismissals won’t keep her from issuing charges on these cases in the future. “Justice will be served,” she said in an interview with KFOX-14 TV station. “Their case is not lost.”
In a written press statement, she noted that the statute of limitations for many of the dismissed cases runs between two to 10 years.
However, moving to prosecute years down the line “would be an extreme injustice not just for my clients, but for the entire legal system,” said El Paso Public Defender Kelli Childress.
Statutes of limitations are intended to be used for “the most unique circumstances,” she said.
“They’re out there for the times when a crime has been committed and we have no idea who did it, and nine years later, we find DNA and figure out who it was — that’s what a statute of limitations is for,” she said.
In contrast, Childress said that with these cases Rosales would be “filing for the first time, years after an offense was committed, when you’ve known of the offender all along.”
“Trying to drag these people back to court at this time is going to be much more litigation than they’re anticipating,” she added, noting that long-time delays could infringe on her clients’ constitutional rights to fair and speedy trials.
And though Rosales said in an interview with KFOX that she’d been “blindsided” by the dismissal requests, Childress said she had contacted the DA’s office on multiple occasions to discuss delays in case screening.
Rosales did not respond to interview requests from El Paso Matters.
‘Like I’m starting over’
On Thursday morning, Magdalena and her 18-year-old son sat quietly outside the tiny jail magistrate courtroom while, in less than 45 minutes, Judge Humberto Acosta granted dismissals on 88 cases — hers among them.
It had been 10 months since her arrest for an alleged misdemeanor assault. After about eight hours in jail, Magdalena, a single parent who works at a fast-food restaurant, said she paid $350 for her release on bond, and began monthly email check-ins with a pretrial officer. All the while, she waited for charges that never came.
The threat of that charge has loomed since October not just for Magdalena, but for her son, who works at the same restaurant as his mother and attends Western Technical College. If the DA chose to prosecute, a conviction could mean imprisonment for his mother — leaving him to care for his two younger siblings, he said.
“It was something that was running through our minds every day, Monday through Friday, Saturday, Sunday, you know? You can’t focus throughout your day with that,” he said. “It was something that was lingering over me.”
El Paso Matters is not using Magdalena’s real name at her request, to avoid connecting her to a crime that she has not been charged with.
Both mother and son know the DA could still file the case for prosecution — which Magdalena worried could mean another round of arrest, jail time and money paid to bond out. But she still savored the day’s dismissal. Once she and her son left the courthouse, they planned to go home and sleep. They’d come to court straight from a graveyard shift at the restaurant.
“It feels like I’m starting over,” she said.
Most of the accused people in last week’s cases had already been released from jail, Childress said. But many had faced “oppressive bond conditions” well past the six-month time limit set by article 32.01, she noted.
“What we see is people will spend a year, 18 months, complying with these conditions that are a de facto probation sentence, when not only have they not been found guilty — they haven’t even been charged yet,” Childress said.
As of April 20, the District Attorney’s Office had 5,300 cases in screening, according to the office’s response to a public information request from El Paso Matters. While in screening, these cases are considered “pre-filed,” meaning that the DA has not yet decided whether to file the case for prosecution and formally charge someone with a crime.
During this pre-filed stage, defense attorneys do not have access to evidence against their client, which can impede their ability to represent them effectively, Childress said.
“The crazy thing is we can’t do anything to help a client defend him or herself during this pre-indictment stage. We don’t get police reports, we don’t know who the witnesses are, we don’t have the opportunity to go out and make sure that, you know, videos don’t get erased, and people don’t leave town and things like that,” she said.
The DA’s delay in screening and indicting cases also has affected people who are in custody. Article 17.151 of the Texas Code of Criminal Procedure prohibits jailing defendants past 30 to 90 days if the state isn’t ready for trial.
Between 2018 and 2020, roughly 14 people were released under this provision each year. In 2021, Rosales’ first year in office, that number jumped to 183.
Private defense attorneys weigh whether to follow suit
The Public Defender’s Office represents defendants who can’t afford to hire a private attorney and handles roughly 40% of criminal cases in El Paso County. Some private defense attorneys are now weighing whether to follow the public defender’s lead.
Defense attorney Omar Carmona said his clients have also experienced delays that would make their cases eligible for dismissal under 32.01. But while he’s planning to request similar dismissals, for now, he said he and other private defense lawyers may wait to see if there’s any “fallout” from this week’s hearings.
“We’ve seen how this (district attorney’s) office has been vindictive in the past,” he said.
Last fall, Carmona represented Ivan Gabaldon, whose capital murder charge was dismissed after a judge ruled that the DA’s office had taken “vindictive actions” against him in a case that was also marked by prosecutorial delays.
In their motion to dismiss the case, Carmona and co-defense attorneys Denise Butterworth and Felix Valenzuela argued that state prosecutors had asked for the death penalty against their client as a way to buy themselves more time to prepare, and because the defense had sought to protect their client’s constitutional right to a speedy trial. In earlier hearings, the DA’s senior division chief, Curtis Cox, acknowledged that prosecutors had received the case, but “apparently for at least the next six months effectively did nothing.”
What types of cases were dismissed
Most of the week’s dismissed cases involved drug-related arrests. About one in five involved people accused of family violence assaults.
Penny Hamilton, who retired as head jail magistrate for El Paso County this spring, said that when she released people accused of violent offenses from jail, she’d try to establish a “safety zone” for the person they may have harmed. She’d prohibit the accused person from possessing any weapons or ammunition, for example, or bar them from going within 200 yards of an alleged victim’s workplace or home.
“You want to avoid any kind of repeat offense or increase in violence that could be committed against the victim,” she said.
With last week’s dismissals, any protective conditions imposed on someone as part of their bond — such as restrictions against contacting an alleged victim — were also removed.
“Her inaction is really such a disservice to our community. It’s a public safety issue, especially now. I mean, (about) 400 cases dismissed and a lot of those having victims of violent crime? That’s just shameful,” Hamilton said.
Reading about the dismissals, Jen worried that a pending sexual assault case against her former partner, who she says abused her and her children for years, would be among those dropped.
In July 2020, the previous DA’s office indicted Jen’s ex-partner for multiple alleged violations of a protective order — a felony offense that is set for trial this fall. But Jen said she’s been unable to learn the status of the sexual assault case, which she believes has been in screening at the DA’s office since 2019. “I have gotten zero confirmation,” she wrote in a text message. “We are still in limbo waiting.”
El Paso Matters is not publishing Jen’s real name due to the risk of violence from her former partner.
“It’s very frustrating,” Jen said of the dismissals. “Not many (domestic violence) victims feel the DA is on our side. No point in reporting to police if the DA will do nothing.”
In her press statement, Rosales wrote that, “victim advocate services are still assisting victims while the cases are pending filing.”
No objection from the state
In her statement, Rosales described article 32.01 as a “procedure wherein Judge Humberto Acosta has released defendants from all bond conditions.” But though Acosta granted the dismissals, the law gave him little choice in the matter, Hamilton said.
Acosta might have had more discretion if prosecutors had provided a reason, or “good cause” for the delay, she noted.
In comments to the media, Rosales has said the backlog had been caused by the COVID-19 pandemic; older cases lingering from the previous district attorney, Jaime Esparza, who left office in December 2020; and a delayed presentation of cases to her office by the El Paso Police Department during a six-month contract re-negotiation period for the District Attorney Information Management System, an information-sharing program between the two agencies meant to help screen cases more efficiently.
In a press statement, El Paso police wrote: “Cases not presented through DIMS were still presented to the DA’s office in a timely manner and most within 10 days of an arrest, or in non-arrest cases, well within the statute of limitations.”
The DA’s office did not cite any reasons for lack of prosecution during the dismissal hearings. It did not file affidavits attempting to show good cause for its delays, and at the hearings did not object to the dismissals.
Childress estimated that over the course of the week, she agreed to prosecutors’ requests to withdraw about 20 motions before the hearings began.
Carmona, who watched some of the dismissals, said “just to have your prosecutor go up there and say ‘nothing from the state’ — that’s just not good enough.
“That’s a total lack of accountability.”