August 31, 2008
District Attorney Jaime Esparza
500 E. San Antonio St., 2nd Floor
El Paso, TX 79901
Hand Delivered with file stamped copy on September 2, 2008
Re: Formal Criminal Complaint against District Attorney Jaime Esparza, El Paso Attorney Joe Aureliano Spencer and Alberto Ocegueda
Dear Mr. Esparza:
By this letter I am filing a formal criminal complaint against you, attorney Joe Aureliano Spencer and Alberto Ocegueda. I am filing this complaint with you as you are the chief prosecutor in this jurisdiction and according to the Texas Attorney General’s White Collar Crime and Public Integrity Unit, it is my understanding that in order for their unit to open an investigation, the complaint must be sent up by law enforcement. Naturally, as this complaint involves you and your best friends, Mr. Spencer and Mr. Ocegueda, you cannot personally investigate it, and you must pass it on. Please forward this complaint on to David Glickler at the Texas Attorney General’s Office as he is working on different aspects of this case and is already aware of the facts surrounding this case.
I am specifically complaining against you and Mr. Spencer and Mr. Ocegueda for the crime of Tampering with Government records, Texas Penal Code 37.10. Being Board certified in criminal law, you are aware that it is against the law to illegally cause the destruction of public records. Being board certified in criminal law you are also aware of the case entitled The State of Texas vs. James Vasilas, 2008 Tex. Crim. App. Lexis 579 (May 7, 2008); 187 SW3rd 486 and 153 SW3rd 725. This is a case where Attorney Vasilas moved for the expunction of his client’s criminal records and in so doing stated grounds in his petition for expunction which were not true. The District Attorney found about the false petition filed by Attorney Vasilas and being an honest district attorney (which we are sorely lacking here in El Paso), he actually brought charges against and prosecuted Attorney Vasilas for the crime of Tampering with Government Records.
To summarize the facts of my criminal complaint, your good friend Alberto Ocegueda was arrested in November of 2006 for aggravated sexual assault of a child. The accusation was that he had digitally penetrated the vagina of a six year old girl, a student at the school where he was the coach. Mr. Ocegueda is also the brother of your personal assistant, Amy Ocegueda Lujan, a secretary you pay the obscene amount of $84,000 a year to of tax payer money (we live in one of the poorest counties in the state) and a woman whom you send to Mexico City allegedly on government business also on the taxpayer dime. (It is important to note that Amy Ocegueda Lujan is not a lawyer and yet she earns far more that most lawyers in your office do.)
You then disqualified yourself from Ocegueda’s case and wrongly hand selected your successor to handle the case, Attorney Chris Bradley, who by no small coincidence is married to the former head of the El Paso police union, Chris McGill. It should also be noted that the brother of Alberto Ocegueda is Pete Ocegueda a police veteran who was also very active in the same El Paso police union. To the great dismay of Mr. and Mrs. Olvera, parents of the child in question, Chris Bradley declined the case. I have school documents which record that the Olveras were very upset about their daughter’s case being declined and were willing to do anything to make sure that Mr. Ocegueda is not around other children. (Sadly, they had to pull their daughter out of the school and my information is that they now home school her). The documents also state that the Olveras were shocked to have heard about the decline from the therapist and to have read about the case in the media. According to my documents, Ms. Bradley did not inform the Olvera family of her decision to decline the case until two weeks after she did it. What many people also do not know is that Bradley’s decision to decline the case came right after you found out that I had found out about the Ocegueda case and I had already publicly commenced my bid for DA against you. The crux of my platform was that you are corrupt and that you do illegal favors for your friends to the very great detriment of the law and this community and our court system. If you will recall, I had filed pleadings in a case on behalf of a client of mine wherein I mentioned the Ocegueda case and almost overnight Chris Bradley declined Ocegueda’s case.
Subsequently, during my campaign for District Attorney against you, there was a tv news report in February 2008 wherein you appeared and attorney Jeff Rey (ostensibly Ocegueda’s civil attorney) appeared talking about the Ocegueda case and the fact that Mr. Ocegueda’s records had been expunged. According to channel 7 reporter Ashlie Hardway, Ocegueda’s criminal and expungement Attorney Joe Spencer, your other good friend, showed her his petition for expungement and an order of expungement of Mr. Ocegueda’s criminal records. Being Board certified in criminal law, Mr. Esparza, you know that an arrest cannot be expunged until the statute of limitations has run when there is no “indictment” or “information” and no “dismissal for mistake or lack of probable cause.” Since Chris Bradley had declined Mr. Ocegueda’s case and therefore there was no indictment or information or dismissal, Mr. Ocegueda legally has to wait 32 years before he could even file a petition to expunge. However, contrary to statutory law and case law regarding expungements, Mr. Ocegueda and his attorney Joe Spencer did indeed charge forward and without fear of prosecution from you, filed a petition for expungement and worse yet, obtained an order of expungement. That illegal order of expungement led to the illegal destruction of government records. Both the petition and the order were filed in direct conflict with the law.
I am enclosing a copy of Mr. Spencer’s petition for expungement which I was fortunate enough to obtain. You may be interested to know that it was through information obtained from you at the UTEP debate that enabled me to get this most valuable document which is damning evidence of the crimes of which I am complaining. (I want to thank you for inadvertently pointing Stuart Leeds and me in the right direction). As you will see, in Spencer’s petition for expungement, he states that there was an “information” in Ocegueda’s case, which there was not. (I have Chris Bradley’s decline letter). Spencer also states that there was a “dismissal,” which there was not as it was never assigned to a court because it was DECLINED. And Spencer further states that the case is no longer pending which is also false since the statute of limitations has not run (that being 32 years from November 2006).
Furthermore, I am formally asking that Mr. Ocegueda be investigated and prosecuted for the crime of perjury as he swore to the truth of the contents of the petition as evidenced by his notarized signature on the petition. These contents we know were not true.
As for your involvement in these crimes Mr. Esparza, it was through the misuse of your position as District Attorney, your help, your aiding, your abetting and your conspiring with your friends, that valuable government records were illegally destroyed. It will not be hard to prove that you were aware of the illegal petition for expunction as you publicly stated on at least two occasions during campaign functions that you knew about every aspect of the case. It is also a reasonable inference that you sent your good friend Ocegueda to your good friend Spencer for legal representation. In fact, Mr. Spencer’s sister Deanna Spencer has worked for you for years and was the head of the “Victim Assistance Unit” for many years. How ironic the Victim’s Assistance Unit. Did the little Olvera girl receive any of the benefits of your victim’s assistance unit run by Deanne Spencer sister of Joe Spencer and friend of Amy Ocegueda Lujan sister of the alleged child molester Alberto Ocegueda and your best friend? Furthermore, you talked about the expungement and were aware of it and being not only a criminal attorney but board certified in criminal law, you knew that that expunction was illegal and your job was/is to make sure that as District Attorney, Mr. Spencer and Mr. Ocegueda never get prosecuted like Attorney Vasilas did. In fact, on August 15, 2008 channel 7 news reported that they spoke to Mr. Ocegueda in reference to his records being UNexpunged and remarkably they said "Ocegeuda said he was OUTRAGED and that he and his lawyer are definitley going to appeal." Only with your criminal conspiracy and involvement would Ocegueda be so brazen as to publicly say he was outraged that his illegal expunction was not only discovered but undone.
As you also know, attorney Stuart Leeds and I recently successfully litigated a petition to undo Mr. Ocegueda’s illegal expungement. For reasons unknown, Judge Barill did not want to hear the case, so an out of town judge, Judge Carl Pendergrass, came to El Paso to preside. It was refreshing to say the least to see an honest judge in action and so easily and so simply follow the law. Judge Pendergrass who is obviously not impressed with Mr. Ocegueda’s connections, agreed with Mr. Leeds and me and granted our pleadings. He followed the law and stated that Mr. Ocegueda could not have legally filed the petition for expungement for 32 years and that the order of expungement Spencer obtained was a “legal malady.” He decreed that the order be set aside as void and he further decreed that Alberto Ocegueda’s records regarding the aggravated sexual assault of a child be reinstated in City, County and State records including records held at your office..
Mr. Spencer unbelievably and arrogantly argued to the court that even if the judge were to order the records back in there were no records to put in because they had been destroyed. Fortunately, I have copies of Mr. Ocegueda’s records which are intact, clean and without redactions containing all of the necessary identifying information such as his social security number, and Texas Driver’s license number. This is identifying information necessary to tie these records to Mr. Ocegueda and properly identify him in law enforcement systems. The greatest irony of all in this story is that it is my copy of Mr. Ocegueda’s records which Judge Pendergrass has ordered be redistributed to law enforcement agencies across the state and to replenish the public files.
Please refer this complaint to the White Collar Crime Unit of the Texas Attorney General’s Office, Mr. David Glickler.
Sincerely,
Theresa Caballero
Cc: David Glickler, Greg Allen, Chief of Police of the El Paso Police Department, Chris Pacheco of the El Paso Sheriff’s Department
Dear Chief Allen and Ms. Pacheco:
By copying you, I am hereby making a formal request of both of your offices to formally receive this complaint and forward it to David Glickler of the Texas Attorney General’s Office. Please do not shirk your duties by sending this letter back to me citing the dishonest and anemic excuse that you are the wrong agency. Please send it up.
Sincerely,
Theresa Caballero
Dear Mr. Glickler:
Please put this letter in your file.
Sincerely,
Theresa Caballero
Criminal Complaint against Jaime Esparza, Joe Spencer and Alberto Ocegueda
August 31, 2008, 2:53 pmJoe Spencer & Alberto Ocegueda's Illegal Petition Documents
August 22, 2008, 8:05 am
Joe Spencer & Alberto Ocegueda's Illegal Petition Documents Archive.
These are the documents regarding the Petition for Expunction for Alberto Ocegueda.
File: admin_Barill03.pdf is Judge Barill's 08/20/2008 letter to Theresa.
File: admin_Barill04.pdf is Judge Barill's 05/05/2008 Ex-parte letter to Judge Ables.
File: admin_ExpungPet02.pdf is Joe Spencer's & Alberto Ocegueda's illegal Petition for Expunction which Judge Barill granted.
These are the documents regarding the Petition for Expunction for Alberto Ocegueda.
File: admin_Barill03.pdf is Judge Barill's 08/20/2008 letter to Theresa.
File: admin_Barill04.pdf is Judge Barill's 05/05/2008 Ex-parte letter to Judge Ables.
File: admin_ExpungPet02.pdf is Joe Spencer's & Alberto Ocegueda's illegal Petition for Expunction which Judge Barill granted.
Judge Angie Barill's Void Order of Expunction/Joe Spencer/Alberto Ocegueda
August 20, 2008, 4:21 pm
Note: I will get back to our Pulitzer prize winning journalist Ashlie Hardway later. There is a lot happening regarding Judge Barill who granted the original order of expunction that you need to know about. What follows is a letter I wrote and sent to her yesterday. As Judge Barill is no longer the judge on the case, this is not an ex-parte communication. Read the letter, as it will explain many things about this case. It will especially make clear what Ashlie Hardway wilfully failed to tell you, what Spencer did, what the judge did and how they all reek. It will also help you to understand what may happen in the future. Of course your comments are always appreciated.
Theresa Caballero
Attorney at Law
300 E. Main St., Suite 1136
El Paso, Texas 79901
915. 565.3550
Fax 915.562.5250
August 19, 2008
The Honorable Angie Juarez Barill
346th Judicial District Court
500 E. San Antonio St.
El Paso, TX 79901
Re: Void Expunction Order and Attorney Joe Aureliano Spencer.
Dear Judge Barill:
On May 22, 2007, attorney Joe Spencer filed a Petition for Expunction on behalf of his client Alberto Ocegueda, aka Osegueda. Mr. Ocegueda had been arrested for aggravated sexual assault of a child in the fall of 2006. The petition was filed in your court when you were the presiding judge. Based on knowledge and belief you signed the order granting the petition sometime in August 2007.
Attorney Spencer had represented Mr. Ocegueda on the underlying aggravated sexual assault of a child charges and was therefore aware of all steps taken or not taken by the special prosecutor in his client’s case. After the special prosecutor Chris Bradley declined Ocegeuda’s case, attorney Spencer went on to prepare, file and litigate a Petition for Expunction. In his petition for expunction, Mr. Spencer stated that Mr. Ocegueda’s case had been brought forward by an “information.” There was never an information in Mr. Ocegueda’s case. Attorney Spencer also stated in his petition that Mr. Ocegueda’s case had been “dismissed.” That is also not true. His case had been declined. He also “failed to disclose facts to your tribunal when disclosure was necessary to avoid assisting a criminal or fraudulent act and, as this was an ex parte proceeding, he failed to disclose to your tribunal unprivileged facts which should have been known by you for you to make an informed decision.” (State Bar Rule 3.03). Attorney Spencer failed to state in his petition that the statute of limitations had not yet run in his client’s case. Mr. Spencer presented these false pleadings to his client Ocegueda to sign under penalty of perjury. Mr. Ocegueda signed to the truth of the above even though it was not true.
The Petition was then filed in your court. When attorneys file original petitions, they do not know what the cause number will be or what court it will land in so they leave those items blank and fill them in at the Clerk’s office once a court and a case number have been assigned. What is interesting and I have yet to get an explanation for this troublesome question, is that my copy of Ocegeuda’s original petition for expunction that Spencer filed shows that your court number, the 346th, appears to have been typed into the style of the case before it was filed . However the cause number was handwritten in. How could that be? As you are also aware, there is a huge public corruption FBI investigation into forum fixing, that is, attorneys fixing matters so that their cases fall into certain friendly courts. Could you please shed light on this question? I have enclosed a copy of the Spencer’s original petition for your review.
Furthermore, when it came to my attention that you had ordered the records in this case destroyed, Stuart Leeds and I became concerned. We knew that based on the information we had that this could not have been done in compliance with the law. We also came to find out that many valuable, governmental records regarding allegations of the rape of a six year old female child had been destroyed as result of your order and were being kept from the public. Relying on case law and statutory law, Mr. Leeds then filed a Petition to undo your order of expunction of Ocegueda’s records. Mr. Leeds’ petition fell in your court and your court set it for hearing on April 30, 2008. Since Attorney Leeds was seeking the reinstatement of records you had previously ordered law enforcement to destroy, he served all of those law enforcement agencies with notice about the hearing. Not one of them opposed his petition.
Anticipating that standing might be an issue, we subpoenaed a witness to prove standing, Channel 7 reporter Ashlie Hardway. She was personally served and paid through the process server to be present in your court on April 30, 2008 at 11:00 a.m.
On April 30, 2008, we appeared before you. You had the clerk’s file with Mr. Leeds’ pleadings outlining his case and why he was asking you to vacate your previous order. As a judge, you are aware of the following cases: the Mosier case, the James H. Thomas v. Judge Miller case, the Diel v. U.S. case and the Metropolitan Transit Authority v. Jackson case which state that you not only had jurisdiction to hear our case but an absolute duty to do so and to set aside your previous order as void. The Judge Miller case stands for the proposition that the court has no discretion to refuse to set aside a void order once it is brought to the court’s attention.
On April 30, when you had the opportunity to right a wrong, a wrong that you yourself had authorized, you failed to do so. You also tried to back out of your responsibility by blaming it on your predecessor as though he would have to come do it. You stated,
“And I don’t remember doing this, so it may have been done by my predecessor.” (Pg. 6 of the transcript)
Mr. Leeds responded, “Right. And that’s why as an officer of the court I have a duty to bring this to the court’s attention. I don’t think it was done under your predecessor, I think, because the motion was filed after you took office.”
Your response was to skirt the issue and begin the process of closing down the hearing.
Then when we brought it to your attention that our witness, Ashlie Hardway had failed to appear in violation of a validly served subpoena you did not have her attached as we requested. We knew that Hardway would disobey the subpoena and fail to appear and so in advance we had prepared a writ of attachment for you signature to bring her in. However, you refused to sign it. You then cancelled the hearing.
The next thing you did was to refer the case to an out of town judge, Stephen Ables. Again you refused to follow the law and correct not only a mistake that was brought to your attention but one that was your own error. Additionally, instead of just transferring the case without comment meant to influence the successor judge, you wrote a memo on May 5, 2008 telling Judge Ables that the case was political. Instead of telling the judge that you had ordered the destruction of government documents based on incorrect pleadings, you tried to feign ignorance as to what it was all about by saying ,
“However, in examining the pleadings in ths case, this is not an Expunction, but rather this case deals with campaign accusations that arose regarding an elected official here in our county and the candidate in that county race.”
However in court on April 30 you said,
“But before we start, Mr. Leeds, I remember when you filed your motion, I thought, What is this? And let me tell you the concerns that I had–and I didn’t even know it had been set for a hearing until just, I guess, recently when I saw it was on my docket.” (pg. 5 of transcript).
My question is, how could you write that when the pleadings mention no politics or campaigns and speak directly to the law of expunction. And the more important question is, why in the world would you write such a thing to a judge you were referring the case to for him to decide if not to improperly influence him to dismiss the legal questions as political? You spent more time and effort getting out of your duties then you did addressing your wrong doings and fixing them.
Furthermore, in this note to Judge Ables, you never cited any reason for your disqualification or your recusal, which is the only reason for a Judge “not to hear and decide matters assigned to her.” See Canon 3. What was the reason for your recusal? What do you know that we don’t know?
On August 13, 2008, Judge Carl Pendergrass without much ado, traveled from Del Rio to hear this case and stated that,
“The pleadings speak for themselves. There is no pleading that the limitation has run, or the offense to which the party who has been charged with the offense is seeking the expunction...Limitations require that the petition for expunction not be filed until 20 years after that child reaches the age of 18 years. The court is of the understanding that the alleged victim in this case was six years at the time of the offense.
Clearly, limitation did not occur. And not having occurred, the petition for expunction should not have been filed. As such the order of expunction, which resulted from these pleadings is a legal malady, it is void and hereby ordered vacated....
It is further ordered that the name of Mr. Ocegueda and the records of his arrest be reinstated in all applicable city, county and state records.”
To say the least, it was very refreshing to see a judge who has the moral fiber to come in and hear a case and rule according to the law and without concern as to who is friends with whom. Why couldn’t you have done that? Why did it take hundreds of tax payer dollars to bring an out of town judge in to fix your mistake when you had the opportunity and the absolute obligation to do it yourself?–And while justice was left pending while we waited for out of town people to travel here to do your job, valuable records were being withheld from the public and perhaps were still being destroyed regarding the accusation of a little girl who said she had been raped by a coach at school. Attached please find a letter from the counselor at SISD documenting the child’s family’s anguish.
Recently, a lawyer named James Vasilas was charged with Tampering With Governmental Records in violation of Texas Penal Code Sec. 37.10. He had filed a petition for expunction stating false grounds. The Vasilas facts are eerily the same as those in the Spencer/Ocegueda case. Please see The State of Texas vs. James Vasilas, 2008 Tex. Crim. App. Lexis 579 (May 7, 2008); 187 SW 3rd 486 and 153 SW 3rd 725.
You as the judge either knew about the defects in the pleadings Mr. Spencer presented to you or you were duped. If you were duped, please see State Bar Rules of Professional Conduct, Rule 3.03 and Rule 8.03 and Code of Judicial Conduct, Canon 3 D(2), second sentence.
We gave Mr. Spencer the opportunity to “take reasonable remedial measures, including disclosure of the true facts.” See Rule 3.03, entitled Candor Toward the Tribunal. Spencer not only did not disclose the true facts, he filed pleadings and argued that the court had no jurisdiction to vacate your void order. Canon 3 states in pertinent part that:
“A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action.”
Canon 3 also states that “A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.”
Your staff has indicated to me that you were duped by Mr. Spencer’s pleadings. You now have another opportunity to do the right thing in this case. The rules of ethics require a judge who has knowledge that a lawyer has not been candid toward the tribunal (in this case I remind you that attorney Spencer handled his client’s underlying criminal offense and knew all of its details including that it had not been dismissed and that limitations had not run and that an information had not been filed. He is the same attorney who prepared the expunction and litigated it which led you to enter an order destroying governmental records) to report him to the State Bar.
Please let me know by no later than 5:00 p.m. on Friday, August 22, 2008 if you plan to report Mr. Spencer to the State Bar. If you read Rule 8.03 you will see that I also have an absolute duty to report those lawyers and judges who do not comply with the Bar and judicial rules. If I do not hear from you in written form, I will assume that your position is that Joe Spencer was candid to you when he presented his pleadings for expunction on Ocegueda to you and that you concur with what he did and that you believe that the order of expunction that you sent out to law enforcement agencies to destroy governmental records was fine, proper and legal.
Sincerely,
Theresa Caballero
Theresa Caballero
Attorney at Law
300 E. Main St., Suite 1136
El Paso, Texas 79901
915. 565.3550
Fax 915.562.5250
August 19, 2008
The Honorable Angie Juarez Barill
346th Judicial District Court
500 E. San Antonio St.
El Paso, TX 79901
Re: Void Expunction Order and Attorney Joe Aureliano Spencer.
Dear Judge Barill:
On May 22, 2007, attorney Joe Spencer filed a Petition for Expunction on behalf of his client Alberto Ocegueda, aka Osegueda. Mr. Ocegueda had been arrested for aggravated sexual assault of a child in the fall of 2006. The petition was filed in your court when you were the presiding judge. Based on knowledge and belief you signed the order granting the petition sometime in August 2007.
Attorney Spencer had represented Mr. Ocegueda on the underlying aggravated sexual assault of a child charges and was therefore aware of all steps taken or not taken by the special prosecutor in his client’s case. After the special prosecutor Chris Bradley declined Ocegeuda’s case, attorney Spencer went on to prepare, file and litigate a Petition for Expunction. In his petition for expunction, Mr. Spencer stated that Mr. Ocegueda’s case had been brought forward by an “information.” There was never an information in Mr. Ocegueda’s case. Attorney Spencer also stated in his petition that Mr. Ocegueda’s case had been “dismissed.” That is also not true. His case had been declined. He also “failed to disclose facts to your tribunal when disclosure was necessary to avoid assisting a criminal or fraudulent act and, as this was an ex parte proceeding, he failed to disclose to your tribunal unprivileged facts which should have been known by you for you to make an informed decision.” (State Bar Rule 3.03). Attorney Spencer failed to state in his petition that the statute of limitations had not yet run in his client’s case. Mr. Spencer presented these false pleadings to his client Ocegueda to sign under penalty of perjury. Mr. Ocegueda signed to the truth of the above even though it was not true.
The Petition was then filed in your court. When attorneys file original petitions, they do not know what the cause number will be or what court it will land in so they leave those items blank and fill them in at the Clerk’s office once a court and a case number have been assigned. What is interesting and I have yet to get an explanation for this troublesome question, is that my copy of Ocegeuda’s original petition for expunction that Spencer filed shows that your court number, the 346th, appears to have been typed into the style of the case before it was filed . However the cause number was handwritten in. How could that be? As you are also aware, there is a huge public corruption FBI investigation into forum fixing, that is, attorneys fixing matters so that their cases fall into certain friendly courts. Could you please shed light on this question? I have enclosed a copy of the Spencer’s original petition for your review.
Furthermore, when it came to my attention that you had ordered the records in this case destroyed, Stuart Leeds and I became concerned. We knew that based on the information we had that this could not have been done in compliance with the law. We also came to find out that many valuable, governmental records regarding allegations of the rape of a six year old female child had been destroyed as result of your order and were being kept from the public. Relying on case law and statutory law, Mr. Leeds then filed a Petition to undo your order of expunction of Ocegueda’s records. Mr. Leeds’ petition fell in your court and your court set it for hearing on April 30, 2008. Since Attorney Leeds was seeking the reinstatement of records you had previously ordered law enforcement to destroy, he served all of those law enforcement agencies with notice about the hearing. Not one of them opposed his petition.
Anticipating that standing might be an issue, we subpoenaed a witness to prove standing, Channel 7 reporter Ashlie Hardway. She was personally served and paid through the process server to be present in your court on April 30, 2008 at 11:00 a.m.
On April 30, 2008, we appeared before you. You had the clerk’s file with Mr. Leeds’ pleadings outlining his case and why he was asking you to vacate your previous order. As a judge, you are aware of the following cases: the Mosier case, the James H. Thomas v. Judge Miller case, the Diel v. U.S. case and the Metropolitan Transit Authority v. Jackson case which state that you not only had jurisdiction to hear our case but an absolute duty to do so and to set aside your previous order as void. The Judge Miller case stands for the proposition that the court has no discretion to refuse to set aside a void order once it is brought to the court’s attention.
On April 30, when you had the opportunity to right a wrong, a wrong that you yourself had authorized, you failed to do so. You also tried to back out of your responsibility by blaming it on your predecessor as though he would have to come do it. You stated,
“And I don’t remember doing this, so it may have been done by my predecessor.” (Pg. 6 of the transcript)
Mr. Leeds responded, “Right. And that’s why as an officer of the court I have a duty to bring this to the court’s attention. I don’t think it was done under your predecessor, I think, because the motion was filed after you took office.”
Your response was to skirt the issue and begin the process of closing down the hearing.
Then when we brought it to your attention that our witness, Ashlie Hardway had failed to appear in violation of a validly served subpoena you did not have her attached as we requested. We knew that Hardway would disobey the subpoena and fail to appear and so in advance we had prepared a writ of attachment for you signature to bring her in. However, you refused to sign it. You then cancelled the hearing.
The next thing you did was to refer the case to an out of town judge, Stephen Ables. Again you refused to follow the law and correct not only a mistake that was brought to your attention but one that was your own error. Additionally, instead of just transferring the case without comment meant to influence the successor judge, you wrote a memo on May 5, 2008 telling Judge Ables that the case was political. Instead of telling the judge that you had ordered the destruction of government documents based on incorrect pleadings, you tried to feign ignorance as to what it was all about by saying ,
“However, in examining the pleadings in ths case, this is not an Expunction, but rather this case deals with campaign accusations that arose regarding an elected official here in our county and the candidate in that county race.”
However in court on April 30 you said,
“But before we start, Mr. Leeds, I remember when you filed your motion, I thought, What is this? And let me tell you the concerns that I had–and I didn’t even know it had been set for a hearing until just, I guess, recently when I saw it was on my docket.” (pg. 5 of transcript).
My question is, how could you write that when the pleadings mention no politics or campaigns and speak directly to the law of expunction. And the more important question is, why in the world would you write such a thing to a judge you were referring the case to for him to decide if not to improperly influence him to dismiss the legal questions as political? You spent more time and effort getting out of your duties then you did addressing your wrong doings and fixing them.
Furthermore, in this note to Judge Ables, you never cited any reason for your disqualification or your recusal, which is the only reason for a Judge “not to hear and decide matters assigned to her.” See Canon 3. What was the reason for your recusal? What do you know that we don’t know?
On August 13, 2008, Judge Carl Pendergrass without much ado, traveled from Del Rio to hear this case and stated that,
“The pleadings speak for themselves. There is no pleading that the limitation has run, or the offense to which the party who has been charged with the offense is seeking the expunction...Limitations require that the petition for expunction not be filed until 20 years after that child reaches the age of 18 years. The court is of the understanding that the alleged victim in this case was six years at the time of the offense.
Clearly, limitation did not occur. And not having occurred, the petition for expunction should not have been filed. As such the order of expunction, which resulted from these pleadings is a legal malady, it is void and hereby ordered vacated....
It is further ordered that the name of Mr. Ocegueda and the records of his arrest be reinstated in all applicable city, county and state records.”
To say the least, it was very refreshing to see a judge who has the moral fiber to come in and hear a case and rule according to the law and without concern as to who is friends with whom. Why couldn’t you have done that? Why did it take hundreds of tax payer dollars to bring an out of town judge in to fix your mistake when you had the opportunity and the absolute obligation to do it yourself?–And while justice was left pending while we waited for out of town people to travel here to do your job, valuable records were being withheld from the public and perhaps were still being destroyed regarding the accusation of a little girl who said she had been raped by a coach at school. Attached please find a letter from the counselor at SISD documenting the child’s family’s anguish.
Recently, a lawyer named James Vasilas was charged with Tampering With Governmental Records in violation of Texas Penal Code Sec. 37.10. He had filed a petition for expunction stating false grounds. The Vasilas facts are eerily the same as those in the Spencer/Ocegueda case. Please see The State of Texas vs. James Vasilas, 2008 Tex. Crim. App. Lexis 579 (May 7, 2008); 187 SW 3rd 486 and 153 SW 3rd 725.
You as the judge either knew about the defects in the pleadings Mr. Spencer presented to you or you were duped. If you were duped, please see State Bar Rules of Professional Conduct, Rule 3.03 and Rule 8.03 and Code of Judicial Conduct, Canon 3 D(2), second sentence.
We gave Mr. Spencer the opportunity to “take reasonable remedial measures, including disclosure of the true facts.” See Rule 3.03, entitled Candor Toward the Tribunal. Spencer not only did not disclose the true facts, he filed pleadings and argued that the court had no jurisdiction to vacate your void order. Canon 3 states in pertinent part that:
“A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action.”
Canon 3 also states that “A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.”
Your staff has indicated to me that you were duped by Mr. Spencer’s pleadings. You now have another opportunity to do the right thing in this case. The rules of ethics require a judge who has knowledge that a lawyer has not been candid toward the tribunal (in this case I remind you that attorney Spencer handled his client’s underlying criminal offense and knew all of its details including that it had not been dismissed and that limitations had not run and that an information had not been filed. He is the same attorney who prepared the expunction and litigated it which led you to enter an order destroying governmental records) to report him to the State Bar.
Please let me know by no later than 5:00 p.m. on Friday, August 22, 2008 if you plan to report Mr. Spencer to the State Bar. If you read Rule 8.03 you will see that I also have an absolute duty to report those lawyers and judges who do not comply with the Bar and judicial rules. If I do not hear from you in written form, I will assume that your position is that Joe Spencer was candid to you when he presented his pleadings for expunction on Ocegueda to you and that you concur with what he did and that you believe that the order of expunction that you sent out to law enforcement agencies to destroy governmental records was fine, proper and legal.
Sincerely,
Theresa Caballero
Ashlie Hardway Testifies the Law is Irrelevant and Puts KVIA in Harms Way
August 18, 2008, 11:53 am
Ashlie Hardway is a reporter for channel 7, KVIA news, an ABC affiliate. As Americans, we have been taught to rely on the press for information. We have been taught that the press is the "Fourth Estate" and that it willl act as a watchdog on the government. We have been told that the members of the press will set aside their personal animosity and bias when reporting the news. The news stations in turn go to the government, specifically the Federal Communications Commission (FCC) and apply for licenses to operate on the airwaves. Because these licenses are limited due to limited space, stations have to prove that they are doing a public service in order to obtain or maintain their licenses. Is KVIA doing a public service and informing the public of the truth when it employs a reporter who falsely accuses a citizen with a squeaky clean record of violating a law that she cannot violate? That citizen violating the law is a legal impossibility. Ashlie Hardway did all this in the MIDDLE of Early voting, days before the primary day, March 4, 2008 when I was running for the office of District Attorney.
Ashlie Hardway accused me on tv of being a criminal. She said that I could be prosecuted for violating the Texas expunction law for disseminating SISD coach Alberto Ocegueda's arrest records of aggravated sexual assault of a child. I told her that I did not know anything about an expunction order, that I had never been served with an expunction order and not being a government actor am not subject to such an order. Hardway preferred to run with the story Ocegueda's attorney Joe Spencer handed to her anyway, even though she had no proof that I had ever been served with an expunction order. What makes Hardway's actions more deplorable is that Hardway testified on August 13, 2008, that she had READ the expunction statute and she even held it up on TV for her viewers to see. What Hardway failed to tell her viewers was that the expunction petition and order Ocegueda had given her to do her story COULD NOT HAVE BEEN legally granted. Here is what Art 55.01 (Expunction statute) of the Texas Code of Criminal Procedure says:
"A person who has been placed under a custodial or non-custodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an idictment or information charging the person with commission of a felony was presented...and the limitations period expired before the date on which a petition for expunction was filed under Article 55.02;
Hardway knew from her own story that the "Special Prosecutor" Chris Bradley did not take the case before a grand jury and therefore there was no indictment and no information (Bradley said she had declined the case). This means then under the above law, that Ocegueda would have to wait for the limitations to pass before he could file for an expunction (32 years in this case). Ocegueda filed for and obtained an expunction in less than two years. This isn't even the limitations for a misdemeanor. Anyone else in this town woud have had to have waited 32 years. Can we say "special treatment?"
It was ASTOUNDING to me that Ashlie Hardway and Channel 7 did not report that Alberto Ocegueda could never have gotten his records legally expunged just by using the information they provided in THEIR OWN REPORT. Their story should have been about how the expunction was illegal, another example of my campaign platform: District Attorney Jaime Esparza's friends get special treatment under the law that no else gets!
Here are some verbatim excerpts from the transcript of the August 13, 2008 hearing where a judge agreed that the expunction was a "legal malady" and ordered it vacated as being a void order. Ashlie Hardway testified at that hearing. I am doing the questioning.
Q. Ms. Hardway, did you not in your report say that I could be prosecuted for publishing expunged records?
A. Yes.
Q. Have you looked at the expungement law?
A. I did at the time. I don't recall exactly what it says.
Q. Have you been shown any evidence that I have been served with an expunction order?
A. No.
Q. Okay. Have you ever been served with an expungement order?
A. No.
Q. Okay. And how do you know that these records are expunged?
A. I received a copy of--I beleive it was Mr. Spencer's, after the fact, a motion or something he has filed that he requested this case be expunged. And I received a copy after the fact saying, yes, these were indeed expunged.
Q. Okay. And did you look at the petition Mr. Spencer sent you?
A. Yes.
...
Q. Are you aware that the statute of limitations for sexual assault is 20 years after the child turns 18, or life, depending on what year the offense had been committed?"
A. No
Q. And you didn't cover any of that in your reports either, did you?
A. It wasn't relevant to my report at the time. The report was about the document that was published.
Q. You didn't cover any of that in your report?
A. No, because it was not relevant.
Hardway testifies under oath that the expunction law that she is accusing me of violating, "..was not relevant" to her report. Why wasn't her report that the expungement law would not permit Mr. Ocegueda's expungement? Under the expungement law, Ocegueda and his attorney could not even FILE their petition until 32 years after his arrest. (Find out later about the judge who signed the order granting Ocegueda's petition).
What Hardway also failed to tell you is that Ocegueda's petition for expungement stated he was seeking the expungement of the arrest records of an "Ocegueda", O-C-E. What were ordered destroyed were the arrest records of "Osegeuda" O-S-E. Why did the booking records spell Ocegueda's name with and O-S? How did Ocegueda get the misspelled records purged when he failed to ask for O-S-E. If you seek the expungement of a particular name then that is all you should be able to get and not all the names that "are close in spelling to it." When I asked Ms. Hardway about the petition haveing one spelling and the destroyed records having another and if her inquiring, truth seeking mind had wondered and asked about that, here is what transpired:
Q. Have you seen the arrest records of Mr. Ocegueda? You saw my flyer?
A. Right. Yes.
Q. Do you remember that his name was O-S-E?
A. Yes.
Q. And so you would agree that the petition for expungement was to erase the records of a man who spells his name with an O-C and not an O-S?
A. Right.
Q. Did you ask anybody about that?
A. I noticed there were several documents that had his name spelled two different ways. I don't remember exactly which ones were spelled which way, but I remember there were several things--
Ms. Caballero: I'm sorry. Objection, non-repsonsive, Judge. I asked her if she asked anybody to clear that up.
A. I don't recall if I asked anyone.
Hardway doesn't report that expungement law does not permit such an expungement. She thinks it is not relevant. She thinks it is not relevant that the order she is accusing me of violating could never have been legally granted. She doesn't report that even if the order had been legally obtained the records that were expunged were not the ones they asked to be expunged.
Look for my next installment to see what else Hardway thought was irrelevant and not important. I think you will find it interesting and enlightening as to how certain members of the El Paso press function.
Ashlie Hardway accused me on tv of being a criminal. She said that I could be prosecuted for violating the Texas expunction law for disseminating SISD coach Alberto Ocegueda's arrest records of aggravated sexual assault of a child. I told her that I did not know anything about an expunction order, that I had never been served with an expunction order and not being a government actor am not subject to such an order. Hardway preferred to run with the story Ocegueda's attorney Joe Spencer handed to her anyway, even though she had no proof that I had ever been served with an expunction order. What makes Hardway's actions more deplorable is that Hardway testified on August 13, 2008, that she had READ the expunction statute and she even held it up on TV for her viewers to see. What Hardway failed to tell her viewers was that the expunction petition and order Ocegueda had given her to do her story COULD NOT HAVE BEEN legally granted. Here is what Art 55.01 (Expunction statute) of the Texas Code of Criminal Procedure says:
"A person who has been placed under a custodial or non-custodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an idictment or information charging the person with commission of a felony was presented...and the limitations period expired before the date on which a petition for expunction was filed under Article 55.02;
Hardway knew from her own story that the "Special Prosecutor" Chris Bradley did not take the case before a grand jury and therefore there was no indictment and no information (Bradley said she had declined the case). This means then under the above law, that Ocegueda would have to wait for the limitations to pass before he could file for an expunction (32 years in this case). Ocegueda filed for and obtained an expunction in less than two years. This isn't even the limitations for a misdemeanor. Anyone else in this town woud have had to have waited 32 years. Can we say "special treatment?"
It was ASTOUNDING to me that Ashlie Hardway and Channel 7 did not report that Alberto Ocegueda could never have gotten his records legally expunged just by using the information they provided in THEIR OWN REPORT. Their story should have been about how the expunction was illegal, another example of my campaign platform: District Attorney Jaime Esparza's friends get special treatment under the law that no else gets!
Here are some verbatim excerpts from the transcript of the August 13, 2008 hearing where a judge agreed that the expunction was a "legal malady" and ordered it vacated as being a void order. Ashlie Hardway testified at that hearing. I am doing the questioning.
Q. Ms. Hardway, did you not in your report say that I could be prosecuted for publishing expunged records?
A. Yes.
Q. Have you looked at the expungement law?
A. I did at the time. I don't recall exactly what it says.
Q. Have you been shown any evidence that I have been served with an expunction order?
A. No.
Q. Okay. Have you ever been served with an expungement order?
A. No.
Q. Okay. And how do you know that these records are expunged?
A. I received a copy of--I beleive it was Mr. Spencer's, after the fact, a motion or something he has filed that he requested this case be expunged. And I received a copy after the fact saying, yes, these were indeed expunged.
Q. Okay. And did you look at the petition Mr. Spencer sent you?
A. Yes.
...
Q. Are you aware that the statute of limitations for sexual assault is 20 years after the child turns 18, or life, depending on what year the offense had been committed?"
A. No
Q. And you didn't cover any of that in your reports either, did you?
A. It wasn't relevant to my report at the time. The report was about the document that was published.
Q. You didn't cover any of that in your report?
A. No, because it was not relevant.
Hardway testifies under oath that the expunction law that she is accusing me of violating, "..was not relevant" to her report. Why wasn't her report that the expungement law would not permit Mr. Ocegueda's expungement? Under the expungement law, Ocegueda and his attorney could not even FILE their petition until 32 years after his arrest. (Find out later about the judge who signed the order granting Ocegueda's petition).
What Hardway also failed to tell you is that Ocegueda's petition for expungement stated he was seeking the expungement of the arrest records of an "Ocegueda", O-C-E. What were ordered destroyed were the arrest records of "Osegeuda" O-S-E. Why did the booking records spell Ocegueda's name with and O-S? How did Ocegueda get the misspelled records purged when he failed to ask for O-S-E. If you seek the expungement of a particular name then that is all you should be able to get and not all the names that "are close in spelling to it." When I asked Ms. Hardway about the petition haveing one spelling and the destroyed records having another and if her inquiring, truth seeking mind had wondered and asked about that, here is what transpired:
Q. Have you seen the arrest records of Mr. Ocegueda? You saw my flyer?
A. Right. Yes.
Q. Do you remember that his name was O-S-E?
A. Yes.
Q. And so you would agree that the petition for expungement was to erase the records of a man who spells his name with an O-C and not an O-S?
A. Right.
Q. Did you ask anybody about that?
A. I noticed there were several documents that had his name spelled two different ways. I don't remember exactly which ones were spelled which way, but I remember there were several things--
Ms. Caballero: I'm sorry. Objection, non-repsonsive, Judge. I asked her if she asked anybody to clear that up.
A. I don't recall if I asked anyone.
Hardway doesn't report that expungement law does not permit such an expungement. She thinks it is not relevant. She thinks it is not relevant that the order she is accusing me of violating could never have been legally granted. She doesn't report that even if the order had been legally obtained the records that were expunged were not the ones they asked to be expunged.
Look for my next installment to see what else Hardway thought was irrelevant and not important. I think you will find it interesting and enlightening as to how certain members of the El Paso press function.
Judge Orders Alberto Ocegueda's Arrest records reinstated/Ashlie Hardway
August 13, 2008, 2:56 pm
Firstly, today has been a good day for the good guys and a real bad day for bad District Attorneys and bad television reporters, i.e Ashlie Hardway of channel 7 KVIA, ABC affiliate. Judge Pendergrass, from Del Rio, Texas ordered that Alberto Ocegueda's arrest records for Aggravated sexual assault of a child were WRONGFULLY expunged and ordered that the documents I had distributed be reinstated into city, county and state files. Also read on to see how poorly Channel 7 reporter Ashlie Hardway researched her stories on this issue, what she omitted in telling you and how poorly she did on the witness stand under cross-examination.
Here is the sequence of events. In February 2008, during my campaign for DA, I published the arrest records for aggravated sexual assault of a child of Alberto Ocegueda, aka Alberto Osegueda, Albert Ocegueda, Albert Osegueda who happens to teach at an SISD school. A six year old female child had accused Ocegueda of penetrating her vagina. Mr. Ocegueda is the brother of District Attorney Jaime Esparza's personal secretary Amy Ocegueda Lujan. This is the secretary Esparza pays over $84,000 a year of county taxpayer money to and takes to Mexico City with him on business.
Because Jaime Esparza is a close friend of Alberto Ocegueda, he declined to handle the case personally but did however hand pick the special prosecutor, his former longtime employee Chris Bradley to "prosecute" the case. Chris Bradley looked at the case and declined it. She said there was not enough evidence. She never took the case to a grand jury. (This is a fact that would become important later on in this story.) As a result, Mr. Ocegueda was never formally charged for the offense or had to appear in court. He was a free man.
During the last week of the campaign, Ashlie Hardway at Channel 7 ran two stories stating that the alleged pedophile's records had been expunged and that I had violated Ocegueda's expungement order by distributing his arrest records. She said that I could be prosecuted for violating the expungement order. She accused me of a crime on tv in the middle of early voting. Where did she get that misinformation? She did all of this with a straight face. People believed her.
There is something seriously wrong with a District Attorney and a tv reporter using an obviously illegally gotten expungement order to publicly accuse a person of violating the law by violating the EXPUNGEMENT order. What Ashlie Hardway intentionally did (but she will argue that she did not do this out of malice but only out of stupidity-but nobody could be this stupid) was fail to tell her viewers that a member of the public does not have to obey Expungement orders. How can they? They are not served with them. They don't know about them. And when she was on the stand I asked her if she had proof that I had been served with the expungement order and she said she had no proof. Furthermore, despite what the expungement statute clearly and unequivocally states, Ashlie Hardway never once pointed out that Ocegueda's arrest records COULD NOT HAVE BEEN legally expunged in the first place. The statute of limitations has to run before an uncharged arrest can be expunged (Ocegeuda was arrested but never formally charged). The statute of limitations for Aggravated Sexual Assault of a child is 20 years after the child reaches the age of 18 or, in other words, 32 more years in this case. So how in the world did Ocegueda get an expungement less than two years after his arrest? Instead of pointing out that Ocegueda got an expungement ILLEGALLY and public records were destroyed as a result of that ILLEGAL expungement which would lead any other neutral reporter to say, "Hey wait a minute-Do we have a cover up here? How did this happen? Who was the judge who signed this? Why did Ocegueda's attorney say in his petition that the case had been dismissed when it hadn't. It had been DECLINED. Why did Joe Spencer state in his petition that Ocegueda had been charged by an "information" when he was never charged? Why did Ocegueda swear to this "misinformation" in the petition?" Not Ashlie Hardway at channel 7. Oh no, she did the reverse and ran a story accusing ME of crimes.-- So much for neutral reporting.
Stuart Leeds and I did some creative lawyering (I have never known this to have been done by anyone ever before anywhere). We took the unprecented following actions: We filed a petition to UNdo the Expungement of Alberto Ocegueda's arrest records. Our grounds were that his petition to expunge had been wrongfully filed by Ocegueda's Attorney, longtime best friend of DA Esparza, Joe Spencer (whose sister also works for Jaime Esparza and who was in charge of Victim's assistance for many, many years and is who is also a friend of both Amy Ocegueda Lujan and Chris Bradley). We pointed out the main misrepresentations in Ocegueda's petition to the judge.
I called Ashlie Hardway who had come with her attorney, Luther Jones, to the stand. (If you recall from two blogs ago, she had been summoned to court before and wilfully disobeyed the judge's order and did not appear) Here was what was salient about Hardway's testimony (you can get a copy of her transcript at the court.)
-In doing the stories, Hardway never once asked for the contact information of the child victim. I asked her why she didn't do that and she said because "they usually never give it out, so I didn't ask."
-I told her that I had gotten the child's name from a simple open records request.
-While she was on the stand, I showed her school records prepared by the counselor at the child's school which documented that the child's parents (the Olveras) were shocked that their daughter's case had been abandoned and that they had to hear about it FROM THE NEWS.
-I asked her if Hardway knew about the family's position of being shocked and disappointed and she said she didn't.-- I guess she thinks that this is irrelevant. I as an attorney in private practice and not as a reporter for an ABC affiliate was able to handily get these and other documents.
-Since Hardway was running a story accusing me of violating the expungement statute, I asked her if she had read the expungement statute and she said she had. I asked if she had seen a copy of the expungement order and she said she had. I then asked her how was it that since she had seen both the law and the order she FAILED to report that Ocegueda's records could never have been legally expunged given that 32 years had not yet passed. She said that was "irrelevant."
-On July 30, 2008 Hardway had done another report on this story where she said Mr. Ocegueda had been "acquitted." I asked her what acquitted means. She said it means the case was "dismissed." A reporter covering the courts should know the difference between "acquittal" and "dismissal" because the difference is vast and carries different legal consequences. "Acquittal" means you are found NOT GUILTY by a judge or a jury. In other words that you have had a trial. "Dismissal" means the prosecutor moved to dismiss and a judge signed it before trial or any judge or jury could make a decision as to guil/innocence. In order for there to be a "dismissal" the case has to be formally charged and in a court. Ocegueda's case was not even dismissed since his case was never in a court. It was simply DECLINED by Chris Bradley. Hardway is an example of the caliber of reporters that KVIA has and is one good reason why voters in El Paso are so poorly informed. People watching Hardway would be led to believe that poor Mr. Ocegueda had a trial and was found not guilty when instead a special prosecutor merely dumped the case by a three line letter and it never saw the light of day of a courtroom. That little girl's voice was never heard by a judge or a jury. Hardway doesn't know the basic terms of art. This is extremely dangerous in a reporter, especially in the hands of a vindictive reporter who has an axe to grind
-Overall, Hardway's demeanor on the stand was bad. She was combative and hostile, defensive and non-responsive. One neutral observer of the hearing said of Hardway's miserable performance on the stand, "Hardway looked mad. She's mad about something." Another observer said to me "Hardway is too stupid to hide how mad she is and how much she hates you." Another observer just said, "She's stupid. I have told everyone that Ashlie learned a new word today. She learned what acquitted means while on the stand. The problem is she also doesn't know what "dismiss" means either."
In the end, without equivocating or blinking an eye, Judge Pendergrass, over the strenuous objections of Joe Spencer, Ocegueda's now very, very wrong attorney, granted our petition and ordered that Alberto Ocegueda's arrest records had been wrongfully destroyed and that they should therefore be reinstated into the public's file.
Will Ashlie Hardway do a story on this INCREDIBLE change of events showing that I have been vindicated and I won? Will channel 7 do a story and correct the misinformation they put out to the public. Will channel 7 do a story on how Ocegueda's records were WRONGLY DESTROYED by an illegal order rendered by Judge Angie Barill. Will Channel 7 tell you how a good judge reversed all of these shenanigans and righteously ordered back into the record Ocegueda's arrest records, using my copies to do so, the very ones Hardway criticized me and accused me of a CRIME for disseminating?
What to think of a reporter who says nothing when she sees that public records have been wrongfully destroyed? What to think of a reporter who publicly condemns and vilifies the private citizen who tries to right a wrong and bring the records to light?
There was one other member of our illustrious press present, supposedly a female from the El Paso Times who left before the judge made his ruling! So what is it she is going to report if anything? I guess it's only news for Dionicio Flores when Esparza and his minions and filth prevail.
More later.
Here is the sequence of events. In February 2008, during my campaign for DA, I published the arrest records for aggravated sexual assault of a child of Alberto Ocegueda, aka Alberto Osegueda, Albert Ocegueda, Albert Osegueda who happens to teach at an SISD school. A six year old female child had accused Ocegueda of penetrating her vagina. Mr. Ocegueda is the brother of District Attorney Jaime Esparza's personal secretary Amy Ocegueda Lujan. This is the secretary Esparza pays over $84,000 a year of county taxpayer money to and takes to Mexico City with him on business.
Because Jaime Esparza is a close friend of Alberto Ocegueda, he declined to handle the case personally but did however hand pick the special prosecutor, his former longtime employee Chris Bradley to "prosecute" the case. Chris Bradley looked at the case and declined it. She said there was not enough evidence. She never took the case to a grand jury. (This is a fact that would become important later on in this story.) As a result, Mr. Ocegueda was never formally charged for the offense or had to appear in court. He was a free man.
During the last week of the campaign, Ashlie Hardway at Channel 7 ran two stories stating that the alleged pedophile's records had been expunged and that I had violated Ocegueda's expungement order by distributing his arrest records. She said that I could be prosecuted for violating the expungement order. She accused me of a crime on tv in the middle of early voting. Where did she get that misinformation? She did all of this with a straight face. People believed her.
There is something seriously wrong with a District Attorney and a tv reporter using an obviously illegally gotten expungement order to publicly accuse a person of violating the law by violating the EXPUNGEMENT order. What Ashlie Hardway intentionally did (but she will argue that she did not do this out of malice but only out of stupidity-but nobody could be this stupid) was fail to tell her viewers that a member of the public does not have to obey Expungement orders. How can they? They are not served with them. They don't know about them. And when she was on the stand I asked her if she had proof that I had been served with the expungement order and she said she had no proof. Furthermore, despite what the expungement statute clearly and unequivocally states, Ashlie Hardway never once pointed out that Ocegueda's arrest records COULD NOT HAVE BEEN legally expunged in the first place. The statute of limitations has to run before an uncharged arrest can be expunged (Ocegeuda was arrested but never formally charged). The statute of limitations for Aggravated Sexual Assault of a child is 20 years after the child reaches the age of 18 or, in other words, 32 more years in this case. So how in the world did Ocegueda get an expungement less than two years after his arrest? Instead of pointing out that Ocegueda got an expungement ILLEGALLY and public records were destroyed as a result of that ILLEGAL expungement which would lead any other neutral reporter to say, "Hey wait a minute-Do we have a cover up here? How did this happen? Who was the judge who signed this? Why did Ocegueda's attorney say in his petition that the case had been dismissed when it hadn't. It had been DECLINED. Why did Joe Spencer state in his petition that Ocegueda had been charged by an "information" when he was never charged? Why did Ocegueda swear to this "misinformation" in the petition?" Not Ashlie Hardway at channel 7. Oh no, she did the reverse and ran a story accusing ME of crimes.-- So much for neutral reporting.
Stuart Leeds and I did some creative lawyering (I have never known this to have been done by anyone ever before anywhere). We took the unprecented following actions: We filed a petition to UNdo the Expungement of Alberto Ocegueda's arrest records. Our grounds were that his petition to expunge had been wrongfully filed by Ocegueda's Attorney, longtime best friend of DA Esparza, Joe Spencer (whose sister also works for Jaime Esparza and who was in charge of Victim's assistance for many, many years and is who is also a friend of both Amy Ocegueda Lujan and Chris Bradley). We pointed out the main misrepresentations in Ocegueda's petition to the judge.
I called Ashlie Hardway who had come with her attorney, Luther Jones, to the stand. (If you recall from two blogs ago, she had been summoned to court before and wilfully disobeyed the judge's order and did not appear) Here was what was salient about Hardway's testimony (you can get a copy of her transcript at the court.)
-In doing the stories, Hardway never once asked for the contact information of the child victim. I asked her why she didn't do that and she said because "they usually never give it out, so I didn't ask."
-I told her that I had gotten the child's name from a simple open records request.
-While she was on the stand, I showed her school records prepared by the counselor at the child's school which documented that the child's parents (the Olveras) were shocked that their daughter's case had been abandoned and that they had to hear about it FROM THE NEWS.
-I asked her if Hardway knew about the family's position of being shocked and disappointed and she said she didn't.-- I guess she thinks that this is irrelevant. I as an attorney in private practice and not as a reporter for an ABC affiliate was able to handily get these and other documents.
-Since Hardway was running a story accusing me of violating the expungement statute, I asked her if she had read the expungement statute and she said she had. I asked if she had seen a copy of the expungement order and she said she had. I then asked her how was it that since she had seen both the law and the order she FAILED to report that Ocegueda's records could never have been legally expunged given that 32 years had not yet passed. She said that was "irrelevant."
-On July 30, 2008 Hardway had done another report on this story where she said Mr. Ocegueda had been "acquitted." I asked her what acquitted means. She said it means the case was "dismissed." A reporter covering the courts should know the difference between "acquittal" and "dismissal" because the difference is vast and carries different legal consequences. "Acquittal" means you are found NOT GUILTY by a judge or a jury. In other words that you have had a trial. "Dismissal" means the prosecutor moved to dismiss and a judge signed it before trial or any judge or jury could make a decision as to guil/innocence. In order for there to be a "dismissal" the case has to be formally charged and in a court. Ocegueda's case was not even dismissed since his case was never in a court. It was simply DECLINED by Chris Bradley. Hardway is an example of the caliber of reporters that KVIA has and is one good reason why voters in El Paso are so poorly informed. People watching Hardway would be led to believe that poor Mr. Ocegueda had a trial and was found not guilty when instead a special prosecutor merely dumped the case by a three line letter and it never saw the light of day of a courtroom. That little girl's voice was never heard by a judge or a jury. Hardway doesn't know the basic terms of art. This is extremely dangerous in a reporter, especially in the hands of a vindictive reporter who has an axe to grind
-Overall, Hardway's demeanor on the stand was bad. She was combative and hostile, defensive and non-responsive. One neutral observer of the hearing said of Hardway's miserable performance on the stand, "Hardway looked mad. She's mad about something." Another observer said to me "Hardway is too stupid to hide how mad she is and how much she hates you." Another observer just said, "She's stupid. I have told everyone that Ashlie learned a new word today. She learned what acquitted means while on the stand. The problem is she also doesn't know what "dismiss" means either."
In the end, without equivocating or blinking an eye, Judge Pendergrass, over the strenuous objections of Joe Spencer, Ocegueda's now very, very wrong attorney, granted our petition and ordered that Alberto Ocegueda's arrest records had been wrongfully destroyed and that they should therefore be reinstated into the public's file.
Will Ashlie Hardway do a story on this INCREDIBLE change of events showing that I have been vindicated and I won? Will channel 7 do a story and correct the misinformation they put out to the public. Will channel 7 do a story on how Ocegueda's records were WRONGLY DESTROYED by an illegal order rendered by Judge Angie Barill. Will Channel 7 tell you how a good judge reversed all of these shenanigans and righteously ordered back into the record Ocegueda's arrest records, using my copies to do so, the very ones Hardway criticized me and accused me of a CRIME for disseminating?
What to think of a reporter who says nothing when she sees that public records have been wrongfully destroyed? What to think of a reporter who publicly condemns and vilifies the private citizen who tries to right a wrong and bring the records to light?
There was one other member of our illustrious press present, supposedly a female from the El Paso Times who left before the judge made his ruling! So what is it she is going to report if anything? I guess it's only news for Dionicio Flores when Esparza and his minions and filth prevail.
More later.