Recently the local newspaper has published two articles regarding Frank Montalovo, the judge overseeing the public corruption cases in El Paso. As is usual with the local paper, the articles are nothing more than press releases or regurgitated articles submitted by others for publication. The January 30 article by Daniel Borunda was about Dallas attorney Ty Clevenger who had filed a complaint against Montalvo in regards to Montalvo unilaterally ordering the removal of an online video without the typically required court hearings involving all of the parties. As is typical for Borunda, he just published the information delivered to him without taking the time to connect the important dots relevant to El Paso. In other words, as is the modus operandi of Daniel Borunda he published what someone else had told him to.
Except for one sentence pointing out that Montalvo has been overseeing that public corruption cases Daniel Borunda focuses the rest of the article on what is happening to a woman in Dallas, unconnected to El Paso except for the judge and ignores the fundamental issues involved. Do not misunderstand me; what is happening in the Dallas case is important because it raises questions about Frank Montalvo’s judicial rulings and how they impact El Paso. Unfortunately you wouldn’t know this because Daniel Borunda just wrote what he was told to write obviously completely ignorant about what ramifications they could have on the public corruption cases.
The El Paso Times masquerading as a newspaper depends on the incompetence of the Daniel Borunda’s of the world in order to publish incomplete and often erroneous information for the highest bidder. The issues involving the judge overseeing the public corruption cases are important to the community and therefore the community needs to be aware of them. Here is why.
You might remember that Frank Montalvo has been sealing the majority of the court records in all of the public corruption cases. For the most part, the little information we know now is based on a few judicial records that have leaked through the PACER system before being sealed again and the public commentary during the sentencing of the various defendants. For the most part, the court proceeding records have remained sealed by order of the judge overseeing the various cases, Frank Montalvo. Some records have entered the public realm because of Carl Starr.
You might remember that on May 26, 2008 local activist Carl Starr filed a motion before Montalvo asking to be allowed to intervene in the case involving Travis Ketner in order to allow Starr the opportunity to argue for the opening of portions of the trial records for the public’s examination. Starr asked that various plea agreements with individuals involved in the public corruption cases be unsealed. Starr further requested that all court proceedings be opened to the public and that the transcripts of previous court hearings be made available. Carl Starr argued that the basis of the US jurisprudence system was an open proceeding available to all.
In response to Starr’s lawsuit, Montalvo ordered certain redacted transcripts released while substantially keeping the majority under seal. There has been some evidence in some of the sentencing and the small amount of transcripts that have been released where Frank Montalvo questions why certain records remain sealed ostensibly at the request of the prosecutors. Although it still remains unclear as to why the judge has yet to order the unsealing of the various cases that have reached resolution.
Notwithstanding that, two other issues have arisen involving the actions of the judge that raise questions important to the community. On June 2013, Adrian Peña’s guilty plea was overturned by the Fifth Circuit Court because the judge had inappropriately interfered with the plea agreement negotiations. As I have written numerous times I am not an attorney however my basic understanding of the US judicial process is that there are three parties; the prosecutors, the defendants and the judge. As I understand it the judge is supposed to be an uninterested, detached third party that acts as an arbiter between the two opposing sides making rulings based on the law. As such, it is my understanding that the judge is not supposed to insert himself in support of one side, or the other.
The Fifth Circuit has ruled that he has.
Adrian Peña was involved in the public corruption cases. A few weeks ago, David Escobar who also pleaded guilty to public corruption filed an appeal arguing that his guilty plea should also be vacated because he alleges that Montalvo also involved himself in his plea negotiations. Escobar is also arguing that his attorney had been told that Escobar would be sentenced to a year in half in prison if he cooperated. Escobar was instead sentenced to three years and five months in prison.
The local paper also recently reported on the Peter Victor Ayika case. The pharmacist’s guilty plea was also vacated by the appeals court. Like in the Peña case the appeals court ruled that both defendants should have their cases tried in front of another judge. In other words, Montalvo was removed from the cases. Like in the Daniel Borunda report you would not know how these two cases are important because both articles failed to point out that the judge involved was overseeing all of the public corruption cases and that two defendants in the public corruption cases are alleging judicial misconduct.
Also, some of the few court proceedings that have been released seem to show some acrimony between the judge and the prosecutors with the judge ignoring the leniency requests from the prosecutors for the defendants that have helped in the cases.
It is no secret that many have opined that the public corruption cases have been selective at best with some selectively prosecuted while others seem to come out unscathed in the far-reaching investigations. Public corruption grows in an environment where the trust in the institutions that enforce the laws is either lacking or nonexistent. El Paso is a corrupt place.
Having questions abound about the integrity of the judicial processes further diminishes the rule of law reinforcing the notion that to succeed you must be corrupt. Keeping judicial records sealed may be necessary to protect the integrity of the process however at what point do sealed court records stay sealed to protect individuals or to protect the system. It is a difficult question to address based on the limited information available.
Unlike the El Paso Times masquerading as a newspaper I am going to fill in some blanks for you tomorrow detailing how recent court filings may give us more information with which to make an opinion on whether the public corruption cases have been effective or not. Have the cases been nothing more than selective prosecutions, a political power-play if you will or have they been an honest attempt to neuter public corruption in the community.