BROWNSVILLE — Attorneys for accused child killer John Allen Rubio are trying again to keep the Cameron County District Attorney's office from prosecuting the horrific case.

The new motion is similar to the first one that claimed attorney Alfredo Padilla could unfairly aid the prosecution.

Padilla had respresented Rubio in his first murder trial in 2003 and was working in the District Attorney's civil division while state presecutors prepared for Rubio's retrial in late 2007.

Padilla left the District Attorney's Office in January to go into private practice. District Attorney Armando Villalobos said Padilla would not be involved in the retrial of the Rubio case.

Rubio, 29, is accused of murdering his three children in Brownsville in March 2003. The children were smothered, stabbed and mutilated.

Rubio was convicted in November 2003 on three counts of capital murder in the deaths of 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 but was sentenced to death.

However, Rubio's conviction was reversed by the Texas Court of Criminal Appeals in September 2007, granting him a new trial. He remains incarcerated at the Carrizalez-Rucker Detention Center in Olmito.

Because a gag order was issued on the attorney's prosecuting and defending the case, they are prohibited from commenting on it.

Monday's hearing was to determine what experts would be allowed to testify on whether Rubio was competent to stand trial.

The expert for the prosecution recently accepted a job with the U.S. Department of Veterans Affairs and would not be able to complete testing on Rubio, prosecutor Charles E. Mattingly Jr said Monday.

It has also been suggested that Rubio may have some type of defect in his brain. He was previously scheduled to undergo an MRI an electroencephalogram.

A Sept. 8 jury trial has been scheduled to determine if Rubio is mentally capable to be re-tried. If Rubio's capital trial murder is to move forward, it's believed Rubio will use the insanity defense. This is the same defense that was used in his first trial in November 2003.

The Brownsville Herald