Since early 2017, the prosecutions of at least four defendants in the Berkshire County Superior Court have been disrupted by their arrests by the federal Immigration and Customs Enforcement agency. These disruptions have violated the judicial sovereignty of our Commonwealth, and probably also basic provisions of the U.S. Constitution.
I found the published accounts of these disruptions disturbing in at least two ways:
- For their inappropriate interference with the orderly judicial process for prosecutions in the Court and
- For the disrespect for victims’ rights shown in these situations by employees of the jail system and by employees of the federal immigration agencies.
The four defendants I know of whose cases have been disrupted in this way are:
- Rafael Lopez-Espinoza in 2017
- Alexis Gkoles in 2019
- Billy Erney Buitrago-Bustos in 2024
- Mynor Styvin DePaz Munoz in 2024
Because I know more details about the cases of Rafael Lopez-Espinoza and Alexis Gkoles, I will discuss these two.
The 2017 case of Rafael Lopez-Espinoza
Mr. Lopez-Espinoza was a defendant arraigned in the court on felony charges of child rape in mid-February 2017. He was scheduled to have a pretrial hearing on July 26, 2017. He was held in the Berkshire House of Corrections in Pittsfield with a bail set initially by Judge John Agostini at $50,000, later reduced to $20,000. He did not appear for the pretrial hearing, even though he had remained in the jail, entrusted (by Judge Agostini) to the custody of Berkshire County Sheriff Tom Bowler and that facility.
Mr. Lopez-Espinoza’s failure to appear for his pretrial hearing in the Superior Court on July 26, 2017, was not due to his own negligence. It was due to a systemic form of procedural negligence that has crept into our legal system in recent years in the Commonwealth, which has been repeated at least three times since 2017 in that court’s jurisdiction, in ICE disruptions of the prosecutions of the other three defendants named above.
While he was in the Pittsfield jail awaiting his scheduled pretrial hearing, defendant Lopez-Espinoza was transferred on April 18, 2017, to the Franklin County jail in Greenfield, according to a document sent to me by Daniel Sheridan, the deputy superintendent of the Berkshire County jail. During a 2018 phone conversation with an employee of the Greenfield jail, I was told that ICE preferred to pick up undocumented defendants from the Greenfield jail. According to the records of the Pittsfield jail, Mr. Lopez-Espinoza was turned over on July 13, 2017, to ICE agents, who apparently removed him from the Commonwealth’s judicial and correctional systems before his scheduled July 26, 2017, hearing, and deported him to his country of origin, as an undocumented resident of Berkshire County.
On March 20, I sent a list of questions about the history of the case of Mr. Lopez-Espinoza to Superior Court Clerk Lisa Denault-Viale. On March 27, I sent her an expanded list. On March 31, I received from her a seven-page paper copy of the Court’s Docket Report on that case. She has not yet responded directly to the questions I sent her on March 20 and March 27.
No account of Mr. Lopez-Espinoza’s removal by ICE from the jurisdiction of the Superior Court in 2017 appeared in the local or regional news media that year, and none has appeared in the nearly eight years since then. I learned of it after the fact, after I had first read in the former Berkshire Record about his arrest, and I had decided to visit him in the Pittsfield jail, because I had known him, for several years before his arrest, as an occasional assistant to the woman who regularly cleaned my apartment in Great Barrington.
After I called the facility to inquire about visiting him, I was told he had been moved elsewhere. Sometime in 2018, I learned of Mr. Lopez-Espinoza’s transfer to the Greenfield jail. Soon after that conversation, I spoke by phone with an employee of the Greenfield jail about him, in an unsuccessful effort to trace his movements between jail facilities before his disappearance from the jurisdiction of the Massachusetts court system.
Sometime in 2018, I learned from his former girlfriend that at the time of his July 2017 pretrial hearing date, the Berkshire County District Attorney’s Office could not tell her where he was, because they themselves did not know. She told me that she had been very unhappy with this state of affairs. She is the mother of the alleged victim, then a minor, and she wanted to see justice done in the matter.
In my intermittent interactions with Rafael Lopez-Epinoza in the years before his February 2017 arraignment, he seemed to me to be a pleasant, gentle, generous man, a good worker with impressive repair skills. It was difficult for me to imagine that he might be guilty of the felonies with which he was charged. But, at age 77, I have learned—from decades as a diligent newspaper reader and from widely separated periods of work as a general assignment reporter and opinion columnist—that all kinds of people are capable of all kinds of unwholesome behavior. Had his case gone to trial, I would have wanted to observe it, in support of both him, his estranged partner, and the young alleged victim (whom I also knew, if only superficially, before mid-2017).
The information in the previous paragraph is not strictly relevant to the bare bones of the legal, procedural, and constitutional issues raised by the subversion of due process exemplified in Mr. Lopez-Espinoza’s case and the three others cited near the start of this narrative. But had his case not been aborted by the actions of ICE, I would have gladly responded in that vein to questions put to me by a social worker on behalf of thecCourt, to a prosecutor, or to a defense lawyer.
The case of Alexis Gkoles in 2019
At about 7:30 a.m. on January 8, 2019, two ICE agents arrested and detained for deportation Alexis Gkoles, then an allegedly undocumented chef at a restaurant on Main Street in Great Barrington. According to later public remarks by our then-Police Chief William Walsh, the ICE agents had asked the Great Barrington Police Department that morning to send a local officer with Mr. Gkoles in their place, to retrieve some prescription medicine from his apartment, before they drove him away to be deported.
Their request for this form of Great Barrington police assistance was readily granted, in clear violation of a detailed town policy adopted by voters at the May 1, 2017, Annual Town Meeting.
According to a January 15, 2019, news story in The Berkshire Edge, “ICE told [Chief Walsh] it might alarm Gkoles’ neighbors if federal agents in black SUVs, clad in flak jackets and ICE vests, had descended on Gkoles’ apartment.” In The Edge video of my and Chief Walsh’s remarks to the Great Barrington Selectboard on January 14, 2019, Chief Walsh said that the ICE agents did not want their appearance at Gkoles’s apartment to “scare the daylights out of” his neighbors, and that they thought “it would be better” if town police officers performed that task instead.
The request by the ICE agents for local police assistance in this incident was, in effect, a politically shrewd maneuver in a town and region where their less than publicly accountable bosses—unlike our Chief Walsh—must have known that they were not welcome.
It also supported the ICE violation of state judicial sovereignty created by the disruption and abortion of the Berkshire County Superior Court judicial proceeding against Alexis Gkoles in a case where a judge had determined that he was not at risk of failure to appear in court for the next stage of the case.
News of the arrest also appeared as a front page story in The Berkshire Eagle.
If the ICE agents had gone to Mr. Gkoles’s apartment to retrieve his prescription medicine and their paramilitary appearance had “scared the daylights out of” his neighbors, the story might well have been picked up by state or national news media beyond Berkshire County. If I had then been in the shoes of a regional or national ICE administrator, I certainly would have wanted to prevent wider coverage of an incident where my agents managed to recruit local police assistance, especially in a town where Elizabeth Warren had received more than 80 percent of the vote in both her 2012 and 2018 successful bids for election to the U.S. Senate.
Such facilitation by Great Barrington town employees of an ICE detainment or transfer—absent a judicial warrant—is expressly forbidden by at least three of the stipulations in the Article 25 Trust Policy, adopted by voters at the May 1, 2017, Annual Town Meeting and endorsed by our Selectboard on the warrant for that meeting.
One of the legal issues raised by this incident: ICE is not an arm of the judicial system or of the local or state police in Massachusetts. Some comments on the January 15, 2019, Berkshire Edge news story revealed the confusion of some citizens on this point. Gkoles, a defendant in Superior Court for a pending state charge of sexual assault when he was detained by ICE, presumably for his immigration status, was not a fugitive from justice in relation to that charge. He had been released by a judge, pending further judicial proceedings, who had determined him safe to be released on his own recognizance, and to show up in court at the appointed time.
ICE has no authority to somehow speed the state judicial process here by arresting and detaining a defendant who has already been charged with a state felony and released (or jailed) by a Superior Court judge, pending further court proceedings.
ICE’s circumvention and disruption of our state’s criminal justice system, by removing a defendant from the jurisdiction of the Berkshire County Superior Court and deporting him before the disposition of the state charges against him, is at best a constitutionally grey area.
ICE had trodden very lightly in Berkshire County before the first Trump administration, according to Berkshire County Assistant District Attorney Joseph Pieropan and a victim’s rights worker who spoke with me in an on-the-record interview in the District Attorney’s Office on November 5, 2018. On that date, Mr. Pieropan was a 21-year veteran of that office.
He told me then that during his tenure there before July 2017, no federal agency had disrupted the judicial process here by arresting an already charged defendant, whisking him to a lock-up outside the county, and deporting him before the judicial disposition of his case.
Mr. Pieropan was then (and is now) the custodian of the records of the District Attorney’s Office. He said that our then-District Attorney David Capeless had been very disturbed by this breach of protocol when he learned of it after the fact in 2017. When Mr. Capeless called ICE or Homeland Security for an explanation of their action, he had been stonewalled, Mr. Pieropan told me.
Before my November 2018 interview with Mr. Pieropan, Mr. Capeless had resigned as Berkshire County district attorney effective March 15, 2018. He did not respond to a message I left with his wife in early November 2018, soon after my interview with Mr. Pieropan, requesting an interview with him about the 2017 Mendoza case. In a brief phone conversation with me in early February 2019, Mr. Capeless said he could not comment on it.
When I told the Great Barrington Selectboard on January 14, 2019, that the January 8 ICE arrest, detention, and transfer of Alex Gkoles on our Main Street raised complex economic, political, and legal issues, I was not engaging in hyperbole. The rubber of apparent violations of state sovereignty in our republic can meet the road of constitutional law even in a small town like Great Barrington.
During that meeting, both Chief Walsh and I asked the board to promptly put on a future meeting agenda a discussion of the need to give clearer instructions to our police department about the implementation of the Article 25 Trust Policies. That article explicitly charges the Selectboard with the responsibility to address any questions about the interpretation or implementation of those policies.
Some weeks later, I repeated this request, both in person and in writing, to our then-Town Manager Jennifer Tabakin and wrote to the whole Selectboard to make the same suggestion. Neither she nor Selectboard Chair Steve Bannon responded to that request, despite a provision in the board’s own Policies and Procedures [Section XII(B)] that requires a prompt response to such a request from a citizen.
During the Citizen Speak time at the end of the January 14, 2019, Selectboard meeting, I said (according to The Berkshire Edge story on January 15, 2019), “There are some complex political, economic and legal issues related to the incident reported in the newspapers,” and I “urged the selectmen to place the matter on the agenda at their next meeting …. This is something that can’t be handled as a routine administrative matter.”
The Great Barrington Selectboard has a duty—by the terms of the 2017 Article 25 policies—to consider these issues, in one or more public meetings or hearings, in as careful, sober, and patient detail, and in a manner as respectful of sometimes angrily expressed questions and opinions of citizens, as they did during their extensive January 14, 2019, discussion of the issues around implementation of an ordinance banning the sale of certain plastic bottles, adopted at the 2018 Annual Town Meeting.
I think that the town’s Article 25 Trust Policies deserve at least as much public discussion by our town’s governing body as they have devoted in recent years to extensive debates about such issues as the ban on small plastic bottles, or the more recent proposal to grant to a local supermarket a license to sell alcohol.
On a higher political level, I urge town residents and the Selectboard to support the Safe Communities Act, a bill proposed in the state legislature in response to the dangers faced by immigrants state-wide due to President Trump’s current harmful and hateful policies.
To defend immigrants from President Trump’s anti-immigrant executive orders, the “Protect Our Immigrant Communities” campaign urges state leaders to pass that act, which would prevent state and local law enforcement from doing the work of ICE agents. The campaign also calls on the state to expand legal services for immigrants facing deportation court proceedings to ensure they have a fair day in court.
As immigrants share with our communities their culture, aid our economy during workforce shortages, and pay hundreds of millions in taxes, it is essential to pass reforms to protect those who provide our state with so much.
