A county court judge dismissed 140 cases againstmigrants charged in anApril 12 "riot" at the U.S.-Mexico border after determining there was no probable cause for their arrests.
County Court at Law 7 Judge Ruben Morales dismissed the 140 cases during a hearing Monday, April 22, after ruling Texas Department of Public Safety state troopers failed to provide probable cause for the mass arrest.
"After reviewing the affidavit, I don't believe that (probable cause) exists," Morales said during the hearing. "I don't believe there is probable cause for these individuals to continue to be detained for the offense of riot participation."
The migrants will now be released from state custody. However, all 140 migrants are still facing federal charges of illegal entry into the U.S. and will be turned over to federal custody.
The dismissal does not mean the migrants can't be charged with riot participation later. The El Paso District Attorney's Office can still indict them on those charges.
El Paso District Attorney's Office officials could not immediately be reached for comment.
"This is one step,"El Paso County Public Defender Kelli Childresssaid after the hearing. "Can the DA go back and indict them now? Sure, but I would hope they would have the integrity to explain to a Grand Jury what probable cause means and the fact that the judge found there was none."
More:Migrants breach razor wire barrier in El Paso, overwhelm Texas National Guard
Two other cases related to the April 12 encounter between migrants and Gov. Greg Abbott's Operation Lone Star forces were not dismissed because one of the suspects is already in federal custody and the other is charged with criminal mischief, not riot participation.
The alleged "riot" happened April 12 at the U.S.-Mexico near Riverside High School in El Paso's Lower Valley.
Childress argued during the Monday hearing that Texas Department of Public Safety troopers had no probable cause when they made a mass arrest of a large group of migrants on riot participation charges.
"This is nothing more than an attempt to arrest and harass," Childress said during the hearing.
El Paso District Attorney's Office Assistant District Attorney Jennifer Vandenbosch countered the migrants knew when they crossed the border illegally that they were participating in a riot.
"Why were they camping and waiting for someone to cut the concertina wire?" Vandenbosch said during the hearing.
Vandenbosch declined to comment after the hearing.
Public defender calls allegations hearsay with no real evidence
Affidavits filed by DPS state troopers were the main focus of Monday's hearing stemming from the arrest of 142 migrants on riot participation charges.
The criminal affidavits against each migrant are the same, with only the defendant's names changed, Childress said.
"The affidavit for almost all of (the migrants) are identical," Childress said. "DPS agents in the affidavit use boiler plate language."
She argued the basis of the allegations against the migrants is hearsay, with the affidavits failing to identify anyone who saw the migrants participate in the riot.
"No evidence of who in the National Guard witnessed the crime," Childress said. "These affidavits are nothing more than hearsay. We have nothing that points to these (migrants) participating in a riot."
State prosecutor: Migrants' bum' rushed Texas forces
Vandenbosch argued the affidavits provided enough probable cause to show the migrants participated in the rioting.
The evidence in the affidavit includes the migrants breaching the concertina wire and "bum rushing" National Guard troops, state troopers and Border Patrol, Vandenbosch said.
"They all followed," Vandenbosch said. "When you come in force with a large group you are participating in a riot."
Judge questions whether affidavit shows riot participation
Vandenbosch repeatedly said during the hearing that the migrants broke the law when they crossed the border illegally.
Judge Morales reminded Vandenbosch several times that the charge the migrants are facing in state court is riot participation, not illegal entry into the U.S.
Vandenbosch argued that the act of illegally crossing the border in a large group showed the migrants participated in the riot.
She added that whether the migrants were at the front or at the back of the large crowd did not matter since they still participated.
Childress ended her argument by stating state prosecutors "clearly had no evidence whatsoever."
Morales then recessed the hearing before he made the decision on probable cause.
All 142 migrants remain on U.S. Immigration and Customs Enforcement holds on the immigration charges.
No trial dates have been set on the federal charges.
Migrants, National Guard continue to face off at border fence
This is at least the second mass arrest incident at the border fence in El Paso.
On March 21, a "riot" occurred about10:45 a.m.at Gate 36 of the border fence in El Paso's Lower Valley, about eight miles from Downtown El Paso.
A group of migrants allegedly cut down the concertina wire placed on the border by National Guard troops and rushed the troops, state troopers and U.S Border Patrol agents.
Two Texas National Guard troops were injured in the incident, court documents state.
In the end, 682 migrants were detained for illegally crossing the border during the confrontation with National Guard troops.
DPS troopers arrested 214 migrants on state misdemeanor "riot participation" charges. Another nine migrants are facing felony state charges of rioting due to their actions allegedly resulting in two National Guard troops being injured in the altercation.
Aaron Martinez may be reached at amartinez1@elpasotimes.com or on Twitter @AMartinezEPT.
