No action taken on motions to open public corruption investigation files

04/13/2008

By Ramon Bracamontes / El Paso Times

More than two weeks after El Pasoan Carl Starr filed a motion seeking to make more files public in the ongoing public corruption case, he has yet to hear from the court or the U.S. attorney's office, and no hearing has been scheduled.

"I don't even know if the court has decided to allow my motion to be entered," Starr said. "I don't know if it is the judge or the U.S. attorney who will answer my request."

While some defense lawyers and some of the people implicated in the public corruption case have complained privately about the ongoing three-year investigation and the enormous amounts of sealed documents filed in the case, only Starr, a civil-rights activist, has filed a public motion asking for more court documents to become public.

On March 23 he filed a motion to intervene in the public corruption case in order to find out why access to records and hearings is being denied. Last week he filed a second motion asking for a hearing.

U.S. District Judge Frank Montalvo, who is presiding over the case, did not return a phone call seeking comment.

Shana Jones, special assistant to the U.S. attorney, said, "There is no legal authority for a third party to intervene in a criminal prosecution, and as a result it is unlikely the government will respond to the intervener's motion."

Starr, who is not a lawyer, said he is hopeful that a public hearing on his motion will be held, unlike some past rulings.

"They are taking their time, though," he said.

Some of the sealed rulings or secret court proceedings Starr wants open to the public are:

When the government and Frank Apodaca were scheduled to argue in court over who should keep Apodaca's seized money, Montalvo two days before signed a separate warrant allowing the government to get the money out of the lawyer's bank account, thus making the scheduled hearing moot.

When U.S. Magistrate Judge Norbert Garney granted Fernando Parra the right to be released on bond during a public arraignment, Montalvo immediately signed an order in private halting his release. A public bond hearing was later held, but the order halting Garney's approval remains unavailable.

All seven people who have pleaded guilty in this case went before Montalvo without their hearings being listed on the judge's public docket. Their pleas remain sealed, and none were arrested or sentenced.

When El Paso lawyer Martie Jobe asked Montalvo to recuse himself from the case, Montalvo did not ask another judge to rule; instead, he ruled that he would not recuse himself, and no public hearing was held.

When El Paso lawyer Mary Stillinger was told she could not represent three people implicated in the case, Montalvo ruled against her without holding a public hearing. Stillinger was allowed to present her case in filings, and she has appealed to the 5th Circuit Court of Appeals.

And, 10 months after the first person pleaded guilty in case, several orders, motions and rulings remain sealed, and the reasons why these documents should remain sealed have never been made public, according to the court records available.

The lack of a public order or opinion stating why the documents must remain sealed is one of the reasons Starr filed his motion.

Jim Harrington, director of the Texas Civil Rights Project and a law professor at the University of Texas Law School in Austin, said that his group is aware of the public corruption case but that it has not been asked to intervene. The Texas Civil Rights Project is a nonprofit based in Austin, with an office in El Paso, that protects against civil-rights violations.

"I'm astounded that a judge is exercising any type of secret docket," Harrington said. "I can understand keeping documents sealed for a brief period, but what is happening there is amazing."

Harrington said the perception problem in this case revolves around the fact that this is a public corruption investigation.

"When you have public corruption cases, officials are investigating deals and meetings that occurred in secret away from the public's view," Harrington said. "The irony in this case is that the judge is hiding some of the courtroom's activities from the public's view. This is amazing."