Wednesday, November 26, 2008


"Additionally, in cases where a criminal defendant files a pretrial motion to disqualify the district attorney from prosecuting a case against him, the motion may not be granted without the defendant proving at a hearing that there is a conflict of interest that rises to the level of a due process violation."

In re Juan Guerra, 235 S.W.3rd 392, 421 (Tex. App.--Corpus Christi 2007, reh. den.)

This is exactly what happened. I have read Judge Banales order. It only gets worse with the more you read. There was no hearing. Counsel for Judge Leal, Judge Lopez, Mosbacker, Garza, and Lozano "raised an issue of great concern to the Court that requires the Court to reconsider its decision not to act on any pretrial motion prior to November 21, 2008." According to Judge Banales each of these attorneys raised the issue and asked for a ruling ex parte. It is a violation of the Rules of Professional Conduct for Lawyers to seek ex parte ruling, and a violation of the Rules of Professional Conduct for a Judge to consider matters ex parte, with limited exceptions, and then the orders are only temporary until the matter can be properly heard.

So now I have established that the Court of Appeals has previously held that a DA is entitled to a hearing when defense counsel seeks to remove them from the case. I have also established that the attorneys for the 5 defendants sought to remove DA Guerra. I have also established that Judge Banales did same without a hearing.

This is where he mislead the people and the press as to the legitimacy of his actions. In his order removing DA Guerra, he stated that he had supporting case law. Then he cited In re Juan Guerra, 235 S.W.3rd 392, 421 (Tex. App.--Corpus Christi 2007, reh. den.) You see Judge Banales understands the press better than the press understands themselves. He knew they would never check the opinion. The judiciary gets away with this stuff because the press is unwilling to do its job.

In the original Juan Guerra decision the court did say that in the limited case, and it went out of its way to say limited case, when the DA is the object of the Grand Jury investigation, and the Grand Jury asks the judge to appoint an Attorney Pro Tem to assist them, the judge can appoint an attorney Pro Tem because [1] the DA is the object of the investigation, and [2] the Grand Jury, not a defendant trying to hand pick the prosecuting attorney, requests the appointment of an attorney pro tem.

"When a lawyer is or may be a witness necessary to establish an essential fact, Texas Disciplinary Rule of Professional Conduct 3.08 prohibits the lawyer from acting as both an advocate and a witness in an adjudicatory proceeding." In Re Bill Martin Sanders, 153 S.W.3rd 54 (Tex. 2004) (For anyone interested in learning how these hearings work you can read the Sanders case) Judge Banales based his disqualification of DA Guerra on Rule 3.08. Judge Banales’ concern is DA Guerra is the alleged victim in these 5 cases.

If this is true and it raises to the level of a conflict of interest of a due process nature, then the defendant would be free to file a motion to disqualify DA Guerra. The Court would then consider the motion at a hearing. "the motion may not be granted without the defendant proving at a hearing that there is a conflict of interest that rises to the level of a due process violation."

My issue is not whether in the end upon a hearing we will have the same result, my issue is the lack of transparency by Judge Banales. This is a case which has caught the attention of the world. Judge Banales with full knowledge the world is watching how our judicial system works when a sitting VP and former US Attorney General are the objects of indictments, decides he is going to run roughshod over the laws and constitution. This has diminished the integrity of our entire legal system in the eyes of the world.

Canon 2A of the Code of Judicial Conduct

"A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
Based on what you now know can you say that Judge Banales actions "promotes public confidence in the integrity and impartiality of the judiciary." I still have not gotten to the Armando Villalobos mess part of this.

Canon 3B(2) of the Code of Judicial Conduct

"(2) A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
Given the clear ruling in the original Guerra decision can you say Banales has been faithful to the law?

Canon 3B(8) of the Code of Judicial Conduct

A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties ... . "

Given the fact the decision to hear argument on DA Guerra’s removal based on a oral motion when the DA was not present in the court, can you say Judge Banales complied with this Canon?
Here is a little quirk, the judge who will hear the Motion to Recuse Judge Banales will have a legal duty to report to the Commission on Judicial Conduct Judge Banales violation of these Canons.

Canon 3D(1) of the Code of Judicial Conduct

(1) A judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action


According to Judge Banales, Alfredo Padilla, the appointed attorney pro tem, is an assistant DA under Armando Villalobos. Villalobos currently prosecutes cases before Judges Leal and Lopez. This is an appearance issue. How are Judges Lopez and Leal going to feel about being prosecuted by an attorney pro tem who also prosecutes cases in their respective courts. And even if Padilla is removed from all cases pending before Leal and Lopez, there is the question of appearance that Judges Leal and Lopez would expect Villalobos to put pressure on Padilla to drop the criminal complaints against them.

This is a clear conflict of interest. So why did Judge Banales appoint Padilla? He wanted to make sure the indictments would be dropped. Would not commonsense have dictated that Judge Banales appoint an attorney pro tem out of Hidalgo county so that there would not be a conflict of interest?

For all of the reasons cited herein I am filing a complaint against Judge Banales with the Commission on Judicial Conduct. But I do know that without press coverage of same the Commission will do nothing. They only act when the press is watching.

I am also filing a complaint against Alfredo Padilla. He knows Banales has violated these rules of Judicial Conduct. He knows Guerra’s rights were violated. He as a lawyer has a duty report these violations to he Commission. He has not. Like everything else coming out of Villalobos office - it smells bad.

I can only hope the new US Attorney, regardless of what happens, will open an obstruction of justice investigation against Judge Banales and Alfredo Padilla. These indictments may very well all be bogus, but this is not how you go about getting them dismissed. Especially when the world is watching.


Anonymous said...


Anonymous said...

How come you have not said anything about the teacher who raped a special ed. student in San Benito?

BobbyWC said...

There has been very limited information on the issue. My only real concern at this time was the decision of the school district and police to disclose the mental health status of the student.

In my view, knowing people, it was disclosed to discredit the child. There is no information out there to suggest a cover-up.

What can I say? I was not there - I do not know if the facts are true. I have been involved in cases where my clients have been guilty and innocent. These are very difficult cases which need to be left alone until the investigation is done.

I have been waiting on the results of the rape kit test.

Bobby WC

Anonymous said...

You have been an advocate of special ed. students, so many parents are waiting for you to get involved in this one for the sake of all.

A Parent