I have been out in the community campaigning hard.
Here is a report:
I was at the Senior community center, Hilos de Plata, this week speaking and passing out Alberto Ocgueda's arrest warrant as an example of Esparza's two El Pasos. Esparza, according to reports, went to that same location on another day to say that it was not true. What is not true I am not sure. He is spending his time now refuting that his overpaid secretary's brother was never prosecuted on child molestation of a six-year old girl charges.
I was at the Transmountain Apartments northeast El Paso group on Thursday night , Valentine's day. I spoke there and passed out more of the official records regarding Ocegueda's case. Esparza lost his temper in front of the whole room and actually stood up and called the arrest warrant on Ocegueda "trash." FYI: Esparza prosecutes people every day life on just such documents. They are El Paso County Sheriff's Department and El Paso Police Department official documents that a judge reviewed and approved. When it concerns his overpaid (with taxpayer money) secretary, Amy Ocegueda Lujan's brother, Alberto Ocegueda these same documents are now "trash." A member of the audience called my campaign and said that "if Esparza thinks anyone in the room that night believed him, he is crazy. He's a liar."
My phone rings off the hook every time Esparza runs one of his very strange TV ads, (he features people who appear to be on the verge of tears saying to vote for him because it is "the right thing to do"). The callers want signs for their front yards after seeing his commercials. It appears that the more ads he runs the more calls of support I get.
I was on the Barbara Perez show on Monday and then on the Bishop Washington show on Thursday. During the Bishop show Esparza had some of his people call in and try and attack me on non DA race issues. I handled all calls. He has nothing. I got several e-mails afterwards from people I have never met saying they heard the show and want to support me. They loved my message and did not like Esparza's tactics or what he has done during his long tenure. A lady in Fabens today said she heard the show and also wants to help me.
I sent another mailout this week that I will post when I have a minute. This one further exposes the Ocegueda scandal, and bullet points my education and experience.
Just in the past few days I have been in Fabens, Socorro, East El Paso, and Central knocking on doors.
I spoke at the El Paso Bar Association luncheon this week reminding lawyers why they became lawyers and asking them to stand up and fight.
I have also had to appear in court in between all these campaign appearances to earn a living. Esparza has been out campaigning during work hours.
The biggest case of Esparza's career, the David Renteria case, which Esparza personally tried himself was showcased on KVIA-7 News Friday and Saturday. Bob Harp did a great job. This case already has to be re-tried because Esparza simply cannot try a clean case and lied to the jury and left them with a false impression. Now there are further allegations of Esparza's misconduct in that case concerning him not disclosing certain fact witnesses that would have helped the Defendant at trial. One of these witnesses, Alicia Garay, actually used to work for Esparza. These witnesses were not disclosed to the defense by Esparza as required by law and the lawyers ethics code and that further puts the whole case in severe jeopardy. That poor family of Alejandra Flores now has to go through the agony and anguish all over again with the same outcome (a death sentence for Renteria) now far from certain due to Esparza's playing fast and loose with the rules. And this after his so-called 16 years of experience which he also trots out at forums to show why he should be given four more years!
Vote for TC. If you want to help call 566-0229 or 241-8418. Early voting starts this Tuesday, February 19, 2008.
Campaign Updates
February 17, 2008, 7:19 pmLetter from a Supporter, This is the Stuff El Pasoans are MADE of
February 11, 2008, 12:05 am
Note: What follows is a letter that I received from a supporter. I have left his name off as I do not want to subject him to the vindictiveness of the other side. The letter is beautifully written and it contains pearls of wisdom. I will frame this letter and hang it in my office as a reminder of the good, brave and generous people out there who were willing to take a stand for this community and do the right thing by their own families and by people they have never met. I have a campaign volunteer who is married, taking 17 hours at UTEP and has five children. She and her family have been banging in signs and pounding the pavement for me for days. Then there is Clint Huffman (who has written publicly here) who has done the herculean task of walking neighborhhoods and parking lots all over the eastside. There is the tireless work of Mr. Valenzuela and Mr. Hernandez, Mr. Artalejo, Mr. Medina and lawyer, Stuart Leeds, his mother and father Sonia and Malkiel Leeds, James (Jim) Terrell, James (Jim) Adelstein, and lawyers Sam Snoddy, Mickey Milligan, Mike (Miguelito) Pariente, James Lucas, Felipe Millan, Gary Hill, and Roger Montoya. Then there are Major Mark Bittakis, Lorenza, Arlene, Hortencia and her daughter, Irma and Rudy, UTEP students, EPISD and SISD teachers, the Hollebeke family and retired deputy police chief George DeAngelis, and many others who have helped me. Then there are those whose names are on my contributor list. Not least, there is my dear mother, Dorothy McGill who paid to educate me and made me the lawyer that I am and who is my volunteer coordinator (566-0229) and my biggest contributor. There are my intelligent, strong and beautiful sisters who are all accomplished lawyers, Jennifer, Deborah and Elizabeth and my brother who is a dedicated intra-city teacher, Raymond (Papo) who have pounded the doors for me and given to me. Then there are the many whose names I do not mention whom I have met at their doors and on the street who are passing my message around. This campaign has brought me in touch with the most incredible people. These are the people of El Paso and those who care about El Paso.
February 7, 2008
Teresa Caballero
Democratic District Attorney Candidate
300 East Main Street, Suite 1136
El Paso TX 79901
Dear Teresa,
Enclosed you will find a check as my contribution to your campaign. Although the amount is not huge, please know that it comes from the heart, nevertheless.
At the same time I want you to know that you are the only candidate that I am supporting in your race. At times people have a tendency to contribute the same amount to all the candidates in order to cover their bets, this way when whoever wins that person can say "I supported you". This is not the case with me...
Additionally, I want to offer my support on the day of election, March 4th to pass out campaign materials at the…It is my precinct and I would be honored to cover it for you the majority of the day. From 6:30 am to 7:00pm. But I will break for breakfast and then again for lunch.
Finally, I must ask a favor of you: at night when you are laying there in your bed trying to take in the day’s events…don’t forget why you ran for office. Remember those who were with you and those who threw $50.00 your way just to cover their bases but then asked you not to say they were with you. But most of all…remember the promises you made to yourself.
And in the unlikely event that for some reason you do not win…know that it was my pleasure-but more importantly-my privilege-to stand with you and that I was honored to give you not only a contribution but more importantly-my vote.
Sincerely,
Un Abrazo!
February 7, 2008
Teresa Caballero
Democratic District Attorney Candidate
300 East Main Street, Suite 1136
El Paso TX 79901
Dear Teresa,
Enclosed you will find a check as my contribution to your campaign. Although the amount is not huge, please know that it comes from the heart, nevertheless.
At the same time I want you to know that you are the only candidate that I am supporting in your race. At times people have a tendency to contribute the same amount to all the candidates in order to cover their bets, this way when whoever wins that person can say "I supported you". This is not the case with me...
Additionally, I want to offer my support on the day of election, March 4th to pass out campaign materials at the…It is my precinct and I would be honored to cover it for you the majority of the day. From 6:30 am to 7:00pm. But I will break for breakfast and then again for lunch.
Finally, I must ask a favor of you: at night when you are laying there in your bed trying to take in the day’s events…don’t forget why you ran for office. Remember those who were with you and those who threw $50.00 your way just to cover their bases but then asked you not to say they were with you. But most of all…remember the promises you made to yourself.
And in the unlikely event that for some reason you do not win…know that it was my pleasure-but more importantly-my privilege-to stand with you and that I was honored to give you not only a contribution but more importantly-my vote.
Sincerely,
Un Abrazo!
Esparza's People Out Committing Theft at Six AM
February 9, 2008, 12:48 pm
Esparza's people have literally been out stealing my signs for a few weeks now. At six this morning, a man in a white Blazer was seen taking down my $130 banner at El Paso Tile on Montana Ave. There is a man who lives on the premises at El Paso Tile and when he came out of his trailer to see what was going on, the thief jumped in his white Trail blazer and headed east. We will make a police report. The man who lives there has been provided with a camera. A new banner will be put up today. There has been systematic stealing and destroying of my signs by Esparza's people.
What does this tell you about him and his followers? Desperate and unethical and so brazen.
Mrs. Leeds, Stuart Leeds' mother, had her sign stolen within two days of it being put up. She made a police report. Several signs were stolen from Pipo's barber shop. My sign at Doris Sipes' law office was stolen. These signs are located on busy streets. Another supporter found her sign torn to shreds in her front yard.They don't care who sees them stealing. Who is going to prosecute them?
One of my campaign workers two weeks ago actually caught red handed two guys taking out one of my signs at a location on Montana. They said they worked for Jaime Esparza.
These signs were purchased with your money. Behold the thieves. Take pictures get plate numbers and I will expose them here on my website. As for the thief this morning, we have a description of him and his car.
What does this tell you about him and his followers? Desperate and unethical and so brazen.
Mrs. Leeds, Stuart Leeds' mother, had her sign stolen within two days of it being put up. She made a police report. Several signs were stolen from Pipo's barber shop. My sign at Doris Sipes' law office was stolen. These signs are located on busy streets. Another supporter found her sign torn to shreds in her front yard.They don't care who sees them stealing. Who is going to prosecute them?
One of my campaign workers two weeks ago actually caught red handed two guys taking out one of my signs at a location on Montana. They said they worked for Jaime Esparza.
These signs were purchased with your money. Behold the thieves. Take pictures get plate numbers and I will expose them here on my website. As for the thief this morning, we have a description of him and his car.
The Truth Behind Esparza's "Prosecutor of the Year Award"
February 6, 2008, 4:07 pm
Here are some facts regarding my opponent's platform. Back in September 2005, Esparza was subpoenaed to testify in the Nancy Hollebeke Federal Civil rights Trial. Esparza was to come explain to the jury why he had Nancy Hollebeke thrown in jail when she reported that El Paso Police Officers Albert Machorro, Jr. (whose father works for Esparza) and Jose/Joe Garcia had raped her. The Hollebeke case had been set for September 2005 since June 2005. The judge was adamant that the trial was going on the given September date.
Monday, the first day of trial, Esparza's attorney, the county attorney's office, showed up in federal court asking the court to release Esparza from his subpoena. Esparza wanted to fly to Corpus Christi to attend a banquet to pick up an award. The Court said Esparza could go to the banquet. (Some special treatment there. Don't try this yourselves at home. You won't like the results and it won't matter that you had bought your tickets a year ago for your 50th wedding anniversay and your spouse was dying.) On top of it all, it was hurricane weather in Corpus Christi that week. Rather than answer for his conduct in Ms. Hollebeke's case, Esparza arranged for his friends in a private non-governmental group of prosecutors to give him a party and an award the very week of the Hollebeke trial way across the entire state of Texas. He couldn't have gotten further away. Ever since, Esparza has spent quite a bit of time announcing to the public that the "State Bar of Texas" had named him the "Prosecutor of the Year." He even has a banner to prove it which he has hung over the mezannine on the second floor of the court house. Jurors coming into the court house see it when they walk in and look up.
During the KVIA televised debate last week and at forums around town, Esparza regularly refers to his "prosecutor of the year award." He says he is very proud of it. He cannot answer to the voter as to why he hasn't noticed the rampant public corruption and investigated or prosecuted it. He can't answer why he has taken money and given money to the main targets of the FBI public corruption probe. He cannot answer why he had Nancy Hollebeke and former Deputy Police Chief George DeAngelis thrown in jail for whistle-blowing on corruption. But what he does do is pull out the "Prosecutor of the Year award." He thinks he can change the subject with it and that it makes him look honorable and legitimate. He wants the public to think that the State Bar of Texas, a revered governmental entity charged with, amongst other things licensing attorneys and monitoring their conduct, selected him for the award. He has told people that the State Bar chose him above all others for the award. It is a center piece in his stump speech. He clings to this award.
Unfortunately it is not true. Attached to the bottom of this blog is a letter/Open Records Request from Stuart Leeds to the State Bar of Texas asking them about the award. Also attached is a response letter from the State Bar saying that it had nothing to do with this award except to pay for half its cost. The State Bar letter said: "The Criminal Justice Section of the State Bar's only involvement in the process is to provide payment for half the cost of the award." The State Bar letter says that the "Texas County and District Attorney's Association" determined who got the award. What is the Texas County and District Attorney's Association? It is a private organization of which Esparza is a member and past office holder. It is not governmental, despite its official sounding name. In fact, when we contacted them about getting information behind the award, Mr. Robert Kepple, its drector told us they were a private group, not governmental and therefore not subject to the Open Records Act and Texas Freedom of Information Act and did not have to give us any of the requested information.
Stuart Leeds had asked for a copy of the nomination form nominating Esparza, who else was in the running for it, who voted, what was the vote count, what were the criteria for the award and for any documentation received from the El Paso County District Attorney's Office and any El Pasoans in support of Esparza for this award. The State Bar responded it knew nothing about the award or its process when it wrote, "after a review of its records the State Bar has determined that it has no additional information responsive to your request."
After 16 years, Esparza is left with retrying the biggest case of his career, the David Renteria case which he personally botched the first time, a reputation for trampeling on the United States Constitution, being a lawsuit magnet, a court of inquiry to probe corruption in his own office and one bogus award he drags around town hoping that the people will be fooled.
As I have said many times, be very careful of District Attorneys who lie about things big and small, even awards. Please see for yourselves and look at the attachment below.
Monday, the first day of trial, Esparza's attorney, the county attorney's office, showed up in federal court asking the court to release Esparza from his subpoena. Esparza wanted to fly to Corpus Christi to attend a banquet to pick up an award. The Court said Esparza could go to the banquet. (Some special treatment there. Don't try this yourselves at home. You won't like the results and it won't matter that you had bought your tickets a year ago for your 50th wedding anniversay and your spouse was dying.) On top of it all, it was hurricane weather in Corpus Christi that week. Rather than answer for his conduct in Ms. Hollebeke's case, Esparza arranged for his friends in a private non-governmental group of prosecutors to give him a party and an award the very week of the Hollebeke trial way across the entire state of Texas. He couldn't have gotten further away. Ever since, Esparza has spent quite a bit of time announcing to the public that the "State Bar of Texas" had named him the "Prosecutor of the Year." He even has a banner to prove it which he has hung over the mezannine on the second floor of the court house. Jurors coming into the court house see it when they walk in and look up.
During the KVIA televised debate last week and at forums around town, Esparza regularly refers to his "prosecutor of the year award." He says he is very proud of it. He cannot answer to the voter as to why he hasn't noticed the rampant public corruption and investigated or prosecuted it. He can't answer why he has taken money and given money to the main targets of the FBI public corruption probe. He cannot answer why he had Nancy Hollebeke and former Deputy Police Chief George DeAngelis thrown in jail for whistle-blowing on corruption. But what he does do is pull out the "Prosecutor of the Year award." He thinks he can change the subject with it and that it makes him look honorable and legitimate. He wants the public to think that the State Bar of Texas, a revered governmental entity charged with, amongst other things licensing attorneys and monitoring their conduct, selected him for the award. He has told people that the State Bar chose him above all others for the award. It is a center piece in his stump speech. He clings to this award.
Unfortunately it is not true. Attached to the bottom of this blog is a letter/Open Records Request from Stuart Leeds to the State Bar of Texas asking them about the award. Also attached is a response letter from the State Bar saying that it had nothing to do with this award except to pay for half its cost. The State Bar letter said: "The Criminal Justice Section of the State Bar's only involvement in the process is to provide payment for half the cost of the award." The State Bar letter says that the "Texas County and District Attorney's Association" determined who got the award. What is the Texas County and District Attorney's Association? It is a private organization of which Esparza is a member and past office holder. It is not governmental, despite its official sounding name. In fact, when we contacted them about getting information behind the award, Mr. Robert Kepple, its drector told us they were a private group, not governmental and therefore not subject to the Open Records Act and Texas Freedom of Information Act and did not have to give us any of the requested information.
Stuart Leeds had asked for a copy of the nomination form nominating Esparza, who else was in the running for it, who voted, what was the vote count, what were the criteria for the award and for any documentation received from the El Paso County District Attorney's Office and any El Pasoans in support of Esparza for this award. The State Bar responded it knew nothing about the award or its process when it wrote, "after a review of its records the State Bar has determined that it has no additional information responsive to your request."
After 16 years, Esparza is left with retrying the biggest case of his career, the David Renteria case which he personally botched the first time, a reputation for trampeling on the United States Constitution, being a lawsuit magnet, a court of inquiry to probe corruption in his own office and one bogus award he drags around town hoping that the people will be fooled.
As I have said many times, be very careful of District Attorneys who lie about things big and small, even awards. Please see for yourselves and look at the attachment below.
More on Crowder's 2nd DWI Arrest, Dionicio Flores, Jay Koester and Esparza
February 4, 2008, 12:24 am
Dear readers, as I have told you, one of the realities regarding my bid for the office of District Attorney is that I would have to spend time and money battling misinformation generated about me by the El Paso Times run by Dionicio Flores. It is simply a fact of life. Many of the Times' writers, not all, but many, write on subjects that they know nothing about or know very little about. As a result, they misinform their readers through their ignorance. Some of the writers are just downright dishonest and print lies or leave out information that leaves the reader with a false impression. These kinds of lies are called lies of omission. The Times is very good at that.
One of my main campaign platforms is to apply the law equally to all. Applying the law equally to all should be a given, but sadly that has not been the case in El Paso for many years under Esparza's regime.
I have outlined over the months several cases that illustrate how Esparza plays favorites with those in power (see blogs on Crowder, Joe Wardy, Ocegueda, Albert Machorro Jr.,...). I used the example of El PasoTimes reporter David Crowder's 2006 arrest for DWI. In that case, Esparza refused to prosecute David Crowder even though the police had determined that he exhibited signs of intoxication. Even though the police had placed Crowder in custody for DWI and had transported him to a police station, Esparza ordered Crowder's release. As a result, Crowder never saw the inside of the jail nor did Esparza prosecute him. On top of it all Crowder had already stepped in the jello before as this was his SECOND arrest for DWI. The average El Pasoan in circumstances similar to Crowder's would have been booked in jail and faced prosecution for DWI. How do I know this? I am a lawyer and as a former prosecutor and as a defense attorney, I have handled hundreds of DWI cases over the years. I also researched the facts behind Crowder's case.
El Paso Times on line editor Jay Koester wrote a blog regarding David Crowder's second arrest for DWI and my letters to the voters regarding this arrest. In reading Koester's blog it is apparent that Koester is upset with me. I don't know Mr. Koester. I don't believe we have ever met. I don't care if he is upset with me, but I do care if he misinforms his readers about me and the law. Koester, in his blog, made some incorrect assertions in defense of his colleague Crowder. Koester submits that if you drink and drive and get stopped by the police and exhibit signs of intoxication by failing field tests, and then get taken to the station because of your performance on the tests but then blow UNDER .08 down at the station, you will NOT be charged with DWI. If you believe Mr. Koester's information, and you do what David Crowder did, you are in for a world of hurt and legal trouble. In the end, it will cost you your license to drive, and maybe your job, thousands of dollars in legal fees and the public humiliation of having a mug shot of you on file in the system and having to go to court month after month to battle the charges. After all is said and done, chances are you will end up on probation with a conviction for DWI.
Here is what the El Paso Times reported on Crowder's DWI:
"Sambrano [police spokesman] said Crowder was taken to a police command center after peforming a field sobriety test. Sambrano said Crowder was released after passing a breath test. In Texas, a person is considered drunk when the blood alcohol level is .08 or higher."
Koester said in his blog that: "Crowder passed the BREATH TEST! There was no case for Esparza to prosecute. Esparza never had a chance to "release" Crowder. It never went that far."
Koester is saying that I have "slandered" Crowder and that I have not properly informed my readers.
Consider the following:
-Police stopped Crowder on suspicion of DWI.
-They had him perform field sobriety tests.
-When a suspect fails a field sobriety test the person is placed under arrest, cuffed and taken to a police station.
-When the Times reports that "Crowder was taken to a police command center" this means he was placed in cuffs, in the patrol car and taken to the station.
-At the station, an arrestee is given the opportunity to take a breath test. A person may consent and give a specimen or a person may refuse and not give a breath specimen.
-If a person does not give a breath specimen, he certainly is not released because there is no specimen. The case lives on because the police have already determined that he is DWI by virtue of his failing the field sobriety tests.
-Using Koester's premise, if there is no breath test to prove that you are .08 or above, then there is no proof of DWI and therefore a person is released. That of course is not the law.
-If a person takes the breath test and passes, the person is still under arrest because he failed the field tests.
-If the person takes the breath test and fails, then the police have one more piece of evidence that the person is guilty of DWI.
-There are people who refuse to take either test. The police can still arrest if there are other signs of intoxication like slurred speech, strong smell of alcohol, blood shot eyes, dangerous driving, etc.
When the Times writes that a person in Texas is drunk if he blows .08 or higher, that is correct. Except that is not the whole truth. The Times didn't tell you that there are TWO definitions of DWI in Texas. Texas Penal Code Sec. 49.01(2)(A) states, "intoxicated means: not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body or (B) having an alcohol concentration of 0.08 or more." Definition (A) is usually proved by failed field tests. It can also be proved by other reasons cited above. There are several tests: Walk a straight line, count backwards and forwards, hold one leg up, the Horizontal Gaze Nystagmus test (where the eyeball jerks at a certain angle), etc. Definition (B) is usually proved by a breath or blood sample. Why didn't the Times tell you about definition A, the more widely used one in DWI cases?
If a person fails the field tests but blows for example .04 he is charged and PROSECUTED only under definition A and not the .08 definiton. This happens every day of the week.
The State of Texas has these two definitions because there are people who simply cannot hold their liquor; they become intoxicated after having only had a little bit of alcohol. If they blow, they could very well pass the breath test but are completely unfit to drive. On the other hand, there are people who can really drink a lot and still walk a straight line but fail the breath test because they are loaded. These people should also not be behind the wheel. The law provides for both kinds of drunks on the road.
Koester writes that there was "no DWI to prosecute because Crowder passed the breath test." That is false because Crowder had failed the field tests and that is why the police put him in custody and took him to the station. If Crowder had passed the field tests then the police would not have taken him to the station in the first place.
Koster writes that "Crowder passed the BREATH TEST! There was no case for Esparza to prosecute. Esparza never had a chance to "release" Crowder. It never went that far." This is also false. This assertion of Koester's also shows his ignorance of the arrest process under the DIMS program. Under DIMS, when an officer makes an arrest he calls the DA's office prior to booking the defendant into the jail and asks the DA if he will accept the case for prosecution. Under DIMS, Esparza has made himself the gatekeeper of the jail. If he says no, then the person goes free. (A magistrate should be making that determination.) In Esparza's own press release reported by various media including the NewspaperTree Esparza himself wrote:
"When a defendant is detained by an officer, an on-duty prosecutor instantly receives a report allowing him/her to decide, based on the merits of the case, whether or not it will be accepted for prosecution. If the prosecutor decides not to file charges, the individual is immediately released."
How could Koester be so ignorant of what DIMS is and what my opponent has said himself what the process is? Koester's own newspaper received the above quoted press release. Did Koester not know about defendants, including Crowder, being immediately released when the DA says no to a case or is he deliberately misrepresenting the facts regarding the DIMS arrest procedures here in El Paso? Indeed it was the DA who had Crowder released as per his own DIMS system.
In Crowder's case, the police followed DIMS procedures and contacted the DA and he said no, he would not accept the case. He used the excuse that Crowder had blown under the legal limit and ignored the fact that the police had determined that Crowder had failed the field tests. Crowder was then immediately released. No doubt this was to the chagrin of the officers who felt they had a solid DWI.
Any other citizen similary situated would have been booked and prosecuted. It was by sheer coincadence that I happened to have a DWI case with the same facts at the same time Crowder's case came out. I was appointed by a county court judge to represent an indigent man who had been arrested for DWI. He was in custody when I got the case and had been in jail for over a week. Like Crowder, my client had blown under the legal limit. He had blown a .06. Unlike Crowder's case, the DA had accepted my client's case for prosecution and they were going full force ahead. I went to the DA supervisor and I said that "I want the same treatment for my client that David Crowder had gotten. I wanted an outright dismissal because my client had blown under." Of course in the legal world having a client who has blown under but who has failed the field tests means nothing. But I looked the supervisor straight in the eye and said I was not kidding and that if they didn't dismiss it right then and there I would haul into court David Crowder and Jaime Esparza so they could explain to the jury what the difference between the two cases were." The supervisor knew I would do what I said I was going to do. He knew it would get rough and he knew that they could not explain to a jury how they were prosecuting one man who had blown under and let another man go who had blown under and both had failed the field tests. Both had been under the same DA's DIMS process and each had been treated differently. The poor man went to jail and the newspaper reporter went home. The DA supervisor recognized this hypocrisy and my willingness to expose it and immediately dismissed my client's case. However, the dismissal did not erase the fact that my client had actually been booked and printed and had his mug shot taken, now had a record, and had spent a week of his life in jail. Crowder went through none of that.
Koester goes on to say that I had not exposed the Crowder case on my website but rather the El Paso Times had exposed Crowder's arrest. What I exposed on my website was the special treament Crowder received by the DA's office.
I encourage Mr. Koester to research DWI law in Texas and the DIMS arrest process before he writes any more blogs on DWIs and the arrest procedure used here in El Paso. He can find much information on DIMS on my website but not in his own newspaper which may account for his profound ignorance on the subject. It is telling about Koester that he does not understand DIMS, which happens to be one of the burning issues in my race and that of the Sheriff's. Koester really should inform himself even if it is just so that he can cast his own vote in my race and the Sheriff's race in a responsible manner. Doing the proper research might also equate into his properly informing his readers on these matters so that they too can cast an intelligent and good vote in March and make El Paso a better place. That is the job of a good journalist who reveres the constitution and the rule of law. I invite Mr. Koester back to my website and am glad that he comes to see what I have written.
One of my main campaign platforms is to apply the law equally to all. Applying the law equally to all should be a given, but sadly that has not been the case in El Paso for many years under Esparza's regime.
I have outlined over the months several cases that illustrate how Esparza plays favorites with those in power (see blogs on Crowder, Joe Wardy, Ocegueda, Albert Machorro Jr.,...). I used the example of El PasoTimes reporter David Crowder's 2006 arrest for DWI. In that case, Esparza refused to prosecute David Crowder even though the police had determined that he exhibited signs of intoxication. Even though the police had placed Crowder in custody for DWI and had transported him to a police station, Esparza ordered Crowder's release. As a result, Crowder never saw the inside of the jail nor did Esparza prosecute him. On top of it all Crowder had already stepped in the jello before as this was his SECOND arrest for DWI. The average El Pasoan in circumstances similar to Crowder's would have been booked in jail and faced prosecution for DWI. How do I know this? I am a lawyer and as a former prosecutor and as a defense attorney, I have handled hundreds of DWI cases over the years. I also researched the facts behind Crowder's case.
El Paso Times on line editor Jay Koester wrote a blog regarding David Crowder's second arrest for DWI and my letters to the voters regarding this arrest. In reading Koester's blog it is apparent that Koester is upset with me. I don't know Mr. Koester. I don't believe we have ever met. I don't care if he is upset with me, but I do care if he misinforms his readers about me and the law. Koester, in his blog, made some incorrect assertions in defense of his colleague Crowder. Koester submits that if you drink and drive and get stopped by the police and exhibit signs of intoxication by failing field tests, and then get taken to the station because of your performance on the tests but then blow UNDER .08 down at the station, you will NOT be charged with DWI. If you believe Mr. Koester's information, and you do what David Crowder did, you are in for a world of hurt and legal trouble. In the end, it will cost you your license to drive, and maybe your job, thousands of dollars in legal fees and the public humiliation of having a mug shot of you on file in the system and having to go to court month after month to battle the charges. After all is said and done, chances are you will end up on probation with a conviction for DWI.
Here is what the El Paso Times reported on Crowder's DWI:
"Sambrano [police spokesman] said Crowder was taken to a police command center after peforming a field sobriety test. Sambrano said Crowder was released after passing a breath test. In Texas, a person is considered drunk when the blood alcohol level is .08 or higher."
Koester said in his blog that: "Crowder passed the BREATH TEST! There was no case for Esparza to prosecute. Esparza never had a chance to "release" Crowder. It never went that far."
Koester is saying that I have "slandered" Crowder and that I have not properly informed my readers.
Consider the following:
-Police stopped Crowder on suspicion of DWI.
-They had him perform field sobriety tests.
-When a suspect fails a field sobriety test the person is placed under arrest, cuffed and taken to a police station.
-When the Times reports that "Crowder was taken to a police command center" this means he was placed in cuffs, in the patrol car and taken to the station.
-At the station, an arrestee is given the opportunity to take a breath test. A person may consent and give a specimen or a person may refuse and not give a breath specimen.
-If a person does not give a breath specimen, he certainly is not released because there is no specimen. The case lives on because the police have already determined that he is DWI by virtue of his failing the field sobriety tests.
-Using Koester's premise, if there is no breath test to prove that you are .08 or above, then there is no proof of DWI and therefore a person is released. That of course is not the law.
-If a person takes the breath test and passes, the person is still under arrest because he failed the field tests.
-If the person takes the breath test and fails, then the police have one more piece of evidence that the person is guilty of DWI.
-There are people who refuse to take either test. The police can still arrest if there are other signs of intoxication like slurred speech, strong smell of alcohol, blood shot eyes, dangerous driving, etc.
When the Times writes that a person in Texas is drunk if he blows .08 or higher, that is correct. Except that is not the whole truth. The Times didn't tell you that there are TWO definitions of DWI in Texas. Texas Penal Code Sec. 49.01(2)(A) states, "intoxicated means: not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body or (B) having an alcohol concentration of 0.08 or more." Definition (A) is usually proved by failed field tests. It can also be proved by other reasons cited above. There are several tests: Walk a straight line, count backwards and forwards, hold one leg up, the Horizontal Gaze Nystagmus test (where the eyeball jerks at a certain angle), etc. Definition (B) is usually proved by a breath or blood sample. Why didn't the Times tell you about definition A, the more widely used one in DWI cases?
If a person fails the field tests but blows for example .04 he is charged and PROSECUTED only under definition A and not the .08 definiton. This happens every day of the week.
The State of Texas has these two definitions because there are people who simply cannot hold their liquor; they become intoxicated after having only had a little bit of alcohol. If they blow, they could very well pass the breath test but are completely unfit to drive. On the other hand, there are people who can really drink a lot and still walk a straight line but fail the breath test because they are loaded. These people should also not be behind the wheel. The law provides for both kinds of drunks on the road.
Koester writes that there was "no DWI to prosecute because Crowder passed the breath test." That is false because Crowder had failed the field tests and that is why the police put him in custody and took him to the station. If Crowder had passed the field tests then the police would not have taken him to the station in the first place.
Koster writes that "Crowder passed the BREATH TEST! There was no case for Esparza to prosecute. Esparza never had a chance to "release" Crowder. It never went that far." This is also false. This assertion of Koester's also shows his ignorance of the arrest process under the DIMS program. Under DIMS, when an officer makes an arrest he calls the DA's office prior to booking the defendant into the jail and asks the DA if he will accept the case for prosecution. Under DIMS, Esparza has made himself the gatekeeper of the jail. If he says no, then the person goes free. (A magistrate should be making that determination.) In Esparza's own press release reported by various media including the NewspaperTree Esparza himself wrote:
"When a defendant is detained by an officer, an on-duty prosecutor instantly receives a report allowing him/her to decide, based on the merits of the case, whether or not it will be accepted for prosecution. If the prosecutor decides not to file charges, the individual is immediately released."
How could Koester be so ignorant of what DIMS is and what my opponent has said himself what the process is? Koester's own newspaper received the above quoted press release. Did Koester not know about defendants, including Crowder, being immediately released when the DA says no to a case or is he deliberately misrepresenting the facts regarding the DIMS arrest procedures here in El Paso? Indeed it was the DA who had Crowder released as per his own DIMS system.
In Crowder's case, the police followed DIMS procedures and contacted the DA and he said no, he would not accept the case. He used the excuse that Crowder had blown under the legal limit and ignored the fact that the police had determined that Crowder had failed the field tests. Crowder was then immediately released. No doubt this was to the chagrin of the officers who felt they had a solid DWI.
Any other citizen similary situated would have been booked and prosecuted. It was by sheer coincadence that I happened to have a DWI case with the same facts at the same time Crowder's case came out. I was appointed by a county court judge to represent an indigent man who had been arrested for DWI. He was in custody when I got the case and had been in jail for over a week. Like Crowder, my client had blown under the legal limit. He had blown a .06. Unlike Crowder's case, the DA had accepted my client's case for prosecution and they were going full force ahead. I went to the DA supervisor and I said that "I want the same treatment for my client that David Crowder had gotten. I wanted an outright dismissal because my client had blown under." Of course in the legal world having a client who has blown under but who has failed the field tests means nothing. But I looked the supervisor straight in the eye and said I was not kidding and that if they didn't dismiss it right then and there I would haul into court David Crowder and Jaime Esparza so they could explain to the jury what the difference between the two cases were." The supervisor knew I would do what I said I was going to do. He knew it would get rough and he knew that they could not explain to a jury how they were prosecuting one man who had blown under and let another man go who had blown under and both had failed the field tests. Both had been under the same DA's DIMS process and each had been treated differently. The poor man went to jail and the newspaper reporter went home. The DA supervisor recognized this hypocrisy and my willingness to expose it and immediately dismissed my client's case. However, the dismissal did not erase the fact that my client had actually been booked and printed and had his mug shot taken, now had a record, and had spent a week of his life in jail. Crowder went through none of that.
Koester goes on to say that I had not exposed the Crowder case on my website but rather the El Paso Times had exposed Crowder's arrest. What I exposed on my website was the special treament Crowder received by the DA's office.
I encourage Mr. Koester to research DWI law in Texas and the DIMS arrest process before he writes any more blogs on DWIs and the arrest procedure used here in El Paso. He can find much information on DIMS on my website but not in his own newspaper which may account for his profound ignorance on the subject. It is telling about Koester that he does not understand DIMS, which happens to be one of the burning issues in my race and that of the Sheriff's. Koester really should inform himself even if it is just so that he can cast his own vote in my race and the Sheriff's race in a responsible manner. Doing the proper research might also equate into his properly informing his readers on these matters so that they too can cast an intelligent and good vote in March and make El Paso a better place. That is the job of a good journalist who reveres the constitution and the rule of law. I invite Mr. Koester back to my website and am glad that he comes to see what I have written.