Why Theresa Caballero for D.A.?

Written by El Paso Attorney Mickey Milligan

March 3, 2007

It surely can not be the norm for one to be granted the gift of life after death. However, I was granted that gift. Each day since I wonder why me? Each day since I thank God for another day of life.

My death was not nearly as worthy as for example, that of a member of our military in the midst of war, upholding our right to be free, or trying to uphold that same right for those in other countries, or an El Paso Police Officer or Sheriff’s Deputy protecting us here at home. No, mine involved nothing worthy. Two years ago on the above date, I had spent a typical day at work as a lawyer, began to feel bad at work, had someone drive me home in the afternoon, and collapsed at my front door. I later learned that I was DOA at the hospital from a heart attack and in a coma for 5 days. EMS, the doctors and medical personnel saved my life, and in fact, brought me back to life.

Upon regaining consciousness, I had a plastic tube in my throat for the oxygen which kept me alive. Although I could hear and understand others, because of the tube, I could not talk, and because of heavy sedation, I could not write. Thus, I was temporarily cut off from communicating with the world. I was allowed to have visitors, although I couldn’t communicate with them. One visitor was Theresa Caballero, who volunteered to give my family a break from their 24 hour vigil by sitting in my room all night, even though she was not a close friend. Although her offer was not needed, I was tearfully grateful, but unable to thank her.

In my recovery, I have concluded to continue my vocation as long as I can, as well as seek potential meaning to my life waiting to be fulfilled.

Which brings me to my concern about the justice system in our City as it is affected by the current political race for El Paso District Attorney. I, like some of you, have not previously been active in El Paso politics. However, because of relevant information and documents I have acquired, I feel a duty to submit my comments concerning this particular elected office to my fellow citizens of this City.

Several years ago, the incumbent D.A., Jaime Esparza, created a system called DIMS, evidenced by a contract signed annually between the City, County and D.A., and a DIMS Manual prepared by the D.A. and given out to Assistant D.A.’s. The 2004 contract provides, among other things, that the Police Department (via the City) will pay the D.A. several hundred thousand dollars annually for services “which exceed the statutorily required duties of the District Attorney.” As a civil lawyer, I found such a provision amazing. Even though I have rarely been involved in criminal law matters, I was in disbelief that local government could lawfully pay a district attorney to provide services outside his statutory duties provided by Texas law. Some of these “non-statutory duties” are set forth in the DIMS Manual. The DIMS Manual states, among other things, that (1) “The assigned [Asst.] District Attorney acts in the name and by the authority of the District Attorney;” (2) “by accepting a case through DIMS, you are determining that there is probable cause to believe that an offense has been committed”(after notification of an arrest by an El Paso Police Officer); (3) “Set the approved amount of bond for the Subject.” Although I do not proclaim to be a criminal law expert, I know that an assistant district attorney in Texas has no lawful authority to “set the bond” for anyone arrested by law enforcement personnel. Incumbent D.A. Esparza has admitted this in sworn testimony in court proceedings. A bond may only be set by a judge or magistrate. The reason is so that a neutral magistrate may hear from the arresting officer and determine whether there is “probable cause” for the person’s arrest, as the law requires, before the arrestee may be booked into jail. Moreover, a neutral magistrate has the power to grant the arrestee a “personal recognizance” bond, commonly called a “PR” bond, (which costs the arrestee no money) for various reasons, such as if the arrestee is a long time resident of this community and/or unlikely to be a flight risk. However, under the DIMS system, the assistant district attorneys setting bonds over the last several years have never set a PR bond (apparently in recognition that they have no lawful authority to set bonds in the first place). Thus, over the period of many years that DIMS has existed, thousands of El Pasoans have been arrested and booked into our county jail and denied their rights to have been taken before a neutral magistrate for a determination of probable cause and denied their right for an opportunity for a PR bond. Like some of you, I learned in the news that our County Sheriff recently stopped allowing DIMS arrestees to be booked into jail after our incumbent D.A. proclaimed publicly that the Sheriff had been setting bonds under the DIMS system.

Moreover, a system whereby the El Paso Police Department pays for assistant district attorneys to work extra time under the DIMS system creates a conflict of interest. If a particular asst. DA working the DIMS system fails to cooperate with police officers making an arrest in one or more arrests, is that asst. DA likely to be relieved of his/her duties under DIMS, and the extra pay that goes with it, since the police are the “client” and are paying the asst. DA extra pay for working DIMS? The answer is obvious. No other community in Texas has a system whereby the police pay asst. DA’s extra money to provide services which exceed their statutory duties. How do District Attorneys in other counties in our State manage to perform their lawful duties without receiving “extra pay” from local police? And if they can do it, why can’t ours? Since our State has long had a statutory system for the payment of District Attorneys, their assistants, their office personnel, their office overhead, etc., why does only El Paso have a system where the DA receives extra pay, over and above his lawful statutory payments, directly from the local police department?
However, our incumbent DA has refused to publicly disavow and terminate the DIMS system created by him, and continues to claim that our Sheriff set the bonds in the thousands of cases of DIMS arrestees booked into jail since the inception of DIMS, notwithstanding our Sheriff’s numerous public statements and sworn testimony in court proceedings that he has never set a bond, and notwithstanding the DIMS Manual which unequivocally states that an assistant district attorney shall set the bond. The DIMS system is currently the subject of constitutional litigation in several civil lawsuits. I have heard our incumbent DA proclaim that his DIMS system is “time-tested.” As a civil lawyer for more than 30 years, I have no idea what this non-sensical justification means. Could not this same non-sensical justification apply to any number of illegal activities, or the concentration camps of WWII?

I submit the following to my fellow El Pasoans. If a member of your family is arrested, do you want your family member to receive his/her due process rights under the U.S. Constitution and Texas law, and be taken before a magistrate for a determination of (1) probable cause and (2) eligibility for a PR bond, “before” being booked into jail, or is it ok if your family member’s rights are denied, and an asst. DA, paid directly by the police, determines both probable cause and sets a bond amount, and your family member is booked into jail without a finding of either probable cause or receiving the right to a PR bond from a neutral magistrate? My response to the question is simple......I want my family, as well as all citizens, to receive all lawful rights to which they are entitled, for it is only by the preservation of our legal rights that we retain our freedom.

The Challenger for DA, Theresa Caballero, has vowed to immediately terminate the DIMS system and restore Constitutional procedures and justice to the office. Having had the opportunity to work with Ms. Caballero on a couple of legal matters during my recovery, I observed her outstanding legal competence, commitment and passion to our legal system, which would benefit the criminal justice system in our City. We, as members of a free society, have the capacity to change our local criminal justice system for the better. I believe the election of Theresa Caballero will accomplish such a change.

Finally, you may ask why these comments are so far in advance of the election for D.A. The reason is that I have had the opportunity to learn, first hand, how fragile and precious life is. Therefore, I decided to communicate my comments with the citizens of El Paso while I can, and endorse Theresa Caballero to restore justice to the office of District Attorney which she seeks and which can affect us all.

Mickey Milligan