Nelson opts out of Rubio re-trial
BROWNSVILLE — State District Judge Arturo C. Nelson has removed himself from presiding over the capital murder case of accused child killer John Allen Rubio.
Nelson filed an order of recusal shortly before 11:30 a.m. Monday, following an earlier status hearing in which a date was to be set for Rubio’s competency hearing.
In his order, Nelson gives no explanation for requesting that he be recused.
The judge suspended the hearing to confer with Administrative Presiding Judge Benjamin Euresti Jr. regarding the case.
Rubio, 29, is accused of murdering his three children in Brownsville on March 11, 2003. The children were smothered, stabbed and mutilated, according to investigators.
The halt in the proceedings came after defense attorneys and state prosecutors made dueling charges of impropriety, including allegations about Nelson.
The case now goes to state District Judge J. Manuel Banales of Corpus Christi, the presiding judge of the Fifth Administrative Judicial Region that includes the Rio Grande Valley. Banales will appoint a visiting judge to the case.
Once a judge is appointed, he or she will determine whether the capital murder trial will start from scratch, court officials said, adding that the appointment could come within the next several days.
Arguments and accusations of impropriety from lawyers on both sides of the capital murder case brought the status hearing to an abrupt halt.
Defense attorney Ed Stapleton accused the Cameron County District Attorney’s Office of misusing its subpoena powers and intimidating witnesses.
The district attorney’s office is being run by “an outlaw district attorney” who is making misrepresentations to witnesses, he said.
Charles E. Mattingly Jr., chief first assistant attorney for the District Attorney’s office, accused Nelson of favoring the defense by allowing Stapleton and fellow defense attorney Nat C. Perez Jr. to subpoena state prosecutors and by allowing them to testify in the case, but not allowing him to do the same.
“I question the legalness of what is being done,” Mattingly said. “We are not getting the opportunity to question defense counsel like you allowed them to question us.”
Mattingly also accused Nelson of holding conferences with defense attorneys that “are completely out of line.”
Nelson said he would not allow the District Attorney’s Office to dictate what happens in his courtroom and that he is taking precautionary measures.
“I don’t want this case to come back and be tried a third time,” he said.
Rubio was convicted in November 2003 on three counts of capital murder in the deaths of his children, Julissa Quesada, 3, John E. Rubio, 14 months, and Mary Jane Rubio, 2 months. Rubio pleaded not guilty by reason of insanity during the trial and was sentenced to death.
However, Rubio’s conviction was reversed by the Texas Court of Criminal Appeals in September 2007, thereby granting him a new trial. He remains incarcerated at the Carrizalez-Rucker Detention Center in Olmito.
Although state prosecutors had subpoenaed Stapleton, Perez and several professional witnesses the defense could allow to testify on Rubio’s behalf, in order to find out what reports had been compiled regarding Rubio’s competency, Nelson quashed all subpoenas.
Just minutes after Monday’s allegations, Nelson suspended the hearing and said he would schedule another one after he consults with the Euresti.
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Laura B. Martinez is a reporter for The Brownsville Herald.
