EDINBURG — A motion 229th District Attorney Omar Escobar filed to recuse a judge presiding over a capital murder case was denied Wednesday. Escobar filed the motion after the judge in question said he would consider dismissing the case after Starr County officials indicated they could not afford to pay the defense attorney.
Prosecutors from the DA’s office out of Starr County and defense attorney O. Rene Flores are scheduled to meet Thursday for a hearing in the capital murder case against Jesus Angel Rebollar, who’s accused in the 2016 deaths of Hector Garcia Jr. and his 3-year-old son in Rio Grande City.
Flores was appointed to represent Rebollar in November 2016 by then 229th District Court Judge Ana Lisa Garza. However, the case has since been transferred from Starr to Hidalgo County.
In the two-and-a-half years that Flores has been assigned to the case, he has yet to be paid for his work, an issue that was raised with visiting state District Judge Jose Longoria, who is now presiding over the case, during a previous meeting in chambers.
According to court transcripts, Flores informed Longoria and the lead prosecutor on the case — Assistant District Attorney Gilberto Hernandez-Solano — that he intended to declare he was prepared for trial and the only delay would be from lack of payment.
So far, Flores is billing about $35,000 to Starr County for attorney’s and experts’ fees.
Following that meeting, Hernandez-Solano issued a letter dated May 1 to the judge and the defense attorneys stating he spoke with both Starr County courts —the 229th and 381st state district courts — and determined the attorney’s fees would come out of their budgets.
“I have been informed that the county is (in) no position to cover these and the projected costs,” Hernandez-Solano wrote in the letter. “It is my understanding the County of Starr intends to request that TRLA (Public Defender’s Office) be appointed to represent Jesus Rebollar.”
Also that day, Starr County Judge Eloy Vera issued a letter to the district court judges requesting they appoint the public defender’s office for indigent cases.
“It is my understanding that this is only a partial bill and that several more bills of an undetermined and unlimited nature will follow,” Vera stated. “As the Chief Financial Officer of Starr County, I can represent to you that the County of Starr is not in a financial position to pay these legal costs. In fact, there is currently no budget for these charges.”
During a May 15 hearing, Flores then filed a motion to dismiss the case, arguing that Starr County’s indication that they would not pay him for his services created a conflict of interest, pitting Rebollar’s right to effective defense counsel against Flores’ own financial interest.
Last week, Judge Longoria issued an order, requiring Starr County to make the $35,000 payment and deposit an additional $150,000 into a trust account for the court to disburse as it sees fit for further attorney’s and expert fees.
The order also called for Escobar, the district attorney, and Vera to appear in court for a May 30 hearing. If the order was not followed, Longoria wrote he would consider dismissing the case.
Escobar filed a motion to have Longoria recused from the case, which was the focus of a hearing Wednesday before 370th state District Judge Noe Gonzalez.
Escobar argued that a judge threatening to dismiss the case over lack of payment to the defense attorney would be unprecedented.
Gonzalez asked Flores if he could no longer properly defend Rebollar, to which the defense attorney replied that he had not yet reached that point.
Though Gonzalez appeared to agree with Escobar that the case’s dismissal should not be the immediate consequence of the payment issue, the judge questioned why Escobar was not siding with Flores in pushing the county to pay him.
Escobar responded that payment was a responsibility of the Starr County Commissioners Court, of which he has no power over.
“It’s not my job,” Escobar added.
“Of course it is!” Gonzalez responded. “What is the job of the district attorney? To seek justice. Not to prosecute; not to find someone guilty; not to make sure that someone’s rights are violated.”
Continuing to raise his voice, Gonzalez added, “Mr. Escobar, your duty is to seek justice, so my point is: Why aren’t you jumping on board? Not for the dismissal, because I disagree that that should be something that is hanging over the head.”
Gonzalez suggested that a warning would be more appropriate, given that violating Rebollar’s rights to counsel could lead to a reversal of the verdict and cause the county to spend more money.
“You shouldn’t have to prosecute this case more than once,” Gonzalez said.
Gonzalez reiterated that he may not agree with Longoria on a possible dismissal, but that was not at issue in the motion to have Longoria recused.
“Would I have done it differently? Probably,” he said. “That’s not the issue.”
Gonzalez denied Escobar’s motion to remove Longoria, adding that his decision to do so was based on the fact that Longoria’s order stated he would only “consider” dismissing the case if the county did not comply.
“If this order had not had the word ‘consider,’ then I’d have (him) removed,” Gonzalez said. “Right now, I’ve got to side with that judge in this particular case.”