The ongoing legal battle involving allegations of police abuse against a female detainee being waged in El Paso’s courts begins to expose the underbelly of legal tangles in our community that raises serious questions about the integrity of El Paso’s jurisprudence. In legal motions filed in court last week, the underbelly of the legal choreography rarely witnessed by everyday citizens is slowly being played out for all to see. This choreography involves the city’s District Attorney and the City’s Police Department pitted against the community. Although serious allegations have been leveled against two El Paso police officers, allegations that need to be addressed by the community to its conclusion, the real public issue at stake is the integrity of the city’s legal system, this without minimizing the seriousness of the allegations that are the impetuous for the case. The case involves the allegations of a then 18-year old female (it is the policy of the El Paso Tribune not to identify individuals alleging sexual assault) who has alleged in a filed complaint that two El Paso Police officers sexually assaulted her while detaining her at a desert party, where, the complainant had acknowledged that she had being drinking in violation of the state’s legal drinking laws. According to public records, the alleged victim has alleged that the two officers detained her and then proceeded to victimize her sexually. After the ordeal, the alleged victim, along with her mother proceeded to file a complaint with the police department alleging the sexual abuse. Along with the criminal complaint, the alleged victim also submitted herself to a medical examination that by all accounts meets the requirements of a “rape kit” as well as photographs of injuries that purport to support her allegations and a videotaped interview where the allegations are assumed to be detailed. These, along with the officer’s Internal Affairs records have been made available to District Attorney Jaime Esparza, according to the documents filed with the December 19, 2003 motion, titled cause number: 20030D06000 of the Grand Jury of the 120th Judicial District Court.

Although the allegations raised by the young woman are very troublesome, the District Attorney’s actions, as well as the Police Department’s actions are troublesome at best. In a letter dated October 3, 2002, signed by Lt. Lisa K. Gaily, Professional Responsibility Unit of the El Paso Police Department, Gaily advises the complainant that her complaint “has been thoroughly investigated.” The letter goes on to state that the “Deputy Chief over the Personnel Bureau has reviewed the case and the appropriate action has been taken to address your complaint.” Although the letter makes no mention of the eventual determination made by the investigation, it can be inferred by the content of the letter and subsequent actions of the District Attorney’s Office that the allegations were determined by the Police Department to have no basis. Subsequently to that, the complainant was charged by the District Attorney’s office for “Filing of a False Report to a Peace Officer”. From a letter included in the latest motions filed before the court, attorney Stuart Leeds indicates that he was court appointed to represent the alleged victim against the charges brought forth by the District Attorney’s office. According to the letter, dated November 24, 2003 addressed to Hon. Jaime Esparza from attorney Leeds, Leeds asks Esparza if he really wants to proceed with this case. The letter advises Esparza that the only way to defend that alleged victim is by putting the two police officers on trial for her allegations.

This raises two serious questions that are yet to be addressed. First, is the apparent fact that although serious allegations had been brought against two police officers, the only investigations done to date were an internal investigation by the police department itself, sort of a case of the fox guarding the hen house?  The second and most chilling issue is the fact that a criminal complaint has been filed against the alleged victim for filing the complaint in the first place, this without a formal third-party investigation! Although no wrongdoing has been found against the police officers, the question needs to be asked is what kind of message does this send to future would-be complainers. Is the answer, file a complaint, have the police investigate their own and then have charges brought forth against you? One needs to wonder where the Rape Advocacy Groups are on this issue. Of course there are two sides to this concern, the first is that the state cannot allow citizens to make unfounded allegations without some penalty, but how can a citizen feel comfortable bringing wrongdoing allegations forth if those allegations are to be investigated by the same agency that the complaint is made against and if determined unfounded then the citizen is subject to criminal charges against them. Without a third-party investigation, what citizen would be comfortable having their allegation investigated by those who stand to loose the most. The integrity of the system is in jeopardy should this be allowed to continue unchallenged, as citizens would be mortified to file allegations thus allowing the police force the unrestrained ability to do as they please.

Unfortunately, in this case, the community concern intensifies, as the actions of the District Attorney are itself brought into question. As if filing the charges of false reporting against the alleged victim were not enough, the District Attorney seems to have concluded that the alleged victim is in fact a liar and should be prosecuted, all without a trial to determine if a crime ever took place. The problem, in this case is that the alleged victim can only defend herself if her allegations are tried in court, something that has not happened, if not her filing makes her criminally guilty, as she has no basis by which to defend herself. Not withstanding the seriousness that the charges brought against her do to the general welfare of the right to complain against those that would abuse their authority in our community, the District Attorney’s unwillingness to investigate her claims prior to filing charges against her is patently wrong in our form of equal representation before the legal system.

In further correspondence between the alleged victim’s attorney, Stuart Leeds and the District Attorney’s office, the question is put forth to the District Attorney as to why the allegations were not addressed by the District Attorney’s office. According to a letter dated December 16, 2003, the District Attorney seems to have declined the case against the police officers on September 26, 2002 because according to the District Attorney’s office, the “crucial witness testimony [was] not credible”. This determination was made by the same entity that is now wishing to prosecute the alleged victim. Of course, the alleged victim’s attorney points out that this action clearly spells out the District Attorney’s position that the alleged victim was in fact a liar, which explains the reasons for the filing of the false reporting charges against her. This raises a third issue for the community, who watches over those who make a determination about someone’s integrity while at the same time retaining the right to criminally charge someone should the determination not benefit the accuser? Why would the District Attorney not want to present the accuser’s case to a Grand Jury and let a third party make a determination prior to the filing of charges against the individual making the accusation? It should be expected that the integrity of the system would demand this.

Could the answer lie in the fact that one of the accused police officer’s is actually related to one of the employee’s of the District Attorney’s office? The District Attorney’s office, single handedly makes a determination of the integrity of an accuser yet finds no problem that there might be an issue with community perception that the father of one of the police officer’s accused by the alleged victim is actually employed by the same agency making the integrity determination of the accuser. Shouldn’t the hypocrisy of this, in itself be sufficient to force the District Attorney to seek a third-party determination, especially when filing criminal charges against the accuser? Common decency should at least give pause to the District Attorney’s office that its actions on this case are not only detrimental to the functionality of the legal system but also potentially disastrous to the victims of future abuse at the hands of those charged to protect us.

In light of all this, the question now becomes, did the District Attorney finally realize the potential error of their actions and take steps to rectify them? According to the public filings, the District Attorney scheduled a hearing before the Grand Jury to present the case of the alleged victim. This raises another issue that conveniently favors the District Attorney to the detriment of the alleged victim. Although anyone is allowed to present a case before a grand jury, the common community perception is that only the District Attorney presents cases before a grand jury. The current incarnation of the system provides for a grand jury that is accustomed to and expecting a District Attorney to make a case before them. Their determination is largely based by the way the District Attorney presents its case before them. When a District Attorney, clearly does not believe in the case it is presenting then their actions, “body language” and content largely determines the outcome of the case, whether an accused is indicted or not. In this case, the District Attorney clearly does not believe the accuser, so common practice would dictate that the District Attorney would then appoint a “Special Prosecutor” to bring the case before the Grand Jury. This way any problems with perception would be addressed and the integrity of the system would be retained.

Unfortunately the expected is not what appears to have transpired. According to a letter dated December 17, 2003 by the alleged victim’s attorney, Stuart Leeds addressed to Assistant District Attorney Karen Larose, it appears that the District Attorney had decided to move forward with presenting the case against the police officers, not withstanding the problem of the District Attorney’s own bias against the accuser and the father-son relationship between one of the accused and an employee of the District Attorney’s office. In response to this apparent capricious action by the District Attorney’s office and fulfillment of his obligations to his client’s rights, attorney Leeds was forced to seek an emergency order disqualifying the District Attorney’s office from moving forward with their presentation to the Grand Jury from the 120th Court. Leeds’ letter clearly states that should the District Attorney wish to proceed with the presentation to the Grand Jury, then at the very least it should include a litany of testimony already available to the District Attorney’s office, among them the alleged victim’s testimony, other witnesses, the complete Internal Affairs records of the accused officers, as well as a the Internal Affairs record of another police officer that is identified as “crucial” to the investigation, medical records and finally a “pile” of photographs of the injuries and a video taped interview of the alleged victim. In regards to the “crucial” witness to the case, it should be noted that the officer was dismissed by the Police Department on October 16, 2003 for cause in a 12-page Notice of Termination that states that the officer’s “conduct has brought discredit and disgrace to both you and the department”. The notice also indicated that the officer, that is a “crucial” witness had agreed to enter a substance abuse treatment program on September 30, 2003, one that according to the notice was never completed by the officer.

An eighteen-year-old files a complaint of sexual abuse against two police officers, the allegations are investigated by the Internal Affairs Department of the Police Department to which it appears they find no basis for the allegations. The District Attorney’s office then unilaterally concludes that the complainant is lying and therefore proceeds to file false reporting charges against the alleged victim without even a cursory inspection from a disinterested third party even though one of the accused officer’s father works for the District Attorney and finally the District Attorney neglects to appoint a Special Prosecutor even after the issues are brought to its attention. If this were just a case of an individual acting irresponsibly then the actions to date would just be a curiosity at best. However, unfortunately in this case, the issue is one of the integrity of the very foundations of our legal system with repercussions not only for the victims but also for the community as a whole.

On December 19, 2003, in the cause titled; “The State of Texas vs. Albert Machorro and Jose Garcia”, cause number 20030D06000 before the Grand Jury of the 120 Judicial District Court, the alleged victim’s attorney once again raises questions of the integrity of the District Attorney’s office. In his motion, Leeds states that a representative of the District Attorney’s office had provided an untruthful statement to the court by a statement made by Assistant District Attorney Marcos Lizarraga to the court that the District Attorney’s office had not been present during the hearing to stay the District Attorney’s actions before the Grand Jury. According to the motion, Assistant District Attorney John Briggs was in fact present before Judge Aguilar and actively participated in the hearing to stay the District Attorney’s actions. Yet, by all indications, the District Attorney has proceeded with its actions before the Grand Jury.

Ultimately, the issue is one of integrity for all concerned. The alleged victim’s integrity is at stake as well as her future criminal proceedings. The two officer’s integrity is at question as the seriousness of the allegations demand a thorough and objective investigation. The most crucial issue of integrity is the actions of the District Attorney’s office. Their actions have not only placed a serious cloud over the future of any victims at the hands of official abuse but have also seriously undermined the community’s trust in the system. The most troubling aspect of this issue is the fact that this whole thing could have been buried never to be examined by the community were it not for the due diligence and the rise to defend the rights of an individual that attorney Stuart Leeds has demonstrated to date. Leeds, apparently a court appointed attorney for the alleged victim brings hope that the system may still work, regardless of the actions of those in authority. It should be noted that although the El Paso Tribune has had no contact with Stuart Leeds nor have we attempted to interview him, the public record speaks volumes for his handling of the rights of his client. It should also be noted that the basis for this piece was derived from the public record and no attempt was made by the El Paso Tribune to interview any of the contenders.

The issue is not one of whether the allegations levied by the women are true or not as that is something for the Court System to decide. The true issue is one of the integrity of the process and one that should be satisfied to the community’s satisfaction. Abusive officer’s should not be tolerated by the community, nor should abusive filings of false allegations of impropriety. In order to protect the integrity of the system, the actions of those in authority should be scrutinized and all perceptions of impropriety should be completely avoided, even to the detriment of those in authority. A citizen should feel secure in the knowledge that if he feels the need to report wrongdoing that report will be treated with the utmost integrity regardless of who it implicates. Once a thorough and impartial investigation is completed, then and only then should the accuser be subjected to judicial scrutiny for filing the allegations. Even then, victimizing a report filer should be reserved for only those that are determined to seriously abuse the system.

Ultimately, the courts will determine the validity of the allegations raised by both sides, but the actions to date need to be seriously questioned by our community. The implications are just too serious to ignore, lest we let them pester long enough to force our community into complete legal anarchy.

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