Martie Jobe, saying she has been told by the U.S. Attorney she is a target in the FBI public corruption case, argues that U.S. District Judge Frank Montalvo is a witness in her defense. (for the motion, the government's response, and her response to that, check the link at the bottom of this story)
"To her knowledge, Martie Jobe has not been charged with a crime in the above-entitled matter, and thus is 'pre-indictment.' On July 26, 2007, however, this Court issued an order disqualifying counsel in this same cause number who sought to represent three individuals who have not been indicted," stated Jobe's motion for recusal. [stillinger disqualification]
Jobe argues that since the court made a decision with respect to three unindicted potential targets, the court also has the "jurisdiction and obligation to examine the recusal issues raised herin with respect to another unindicted individual."
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In June, Travis Ketner, former chief of staff for County Judge Anthony Cobos, pleaded guilty to four counts of conspiracy involving public corruption. [ketner plea]
Count Three of the plea was the allegation that Ketner, a lawyer, represented former County Commissioner Betti Flores in a personal legal matter, in order to secure Flores' vote on a contract dispute with El Paso Sheriff Officers, who were represented by Jobe. In addition, Count Four of Flores' guilty plea to charges of taking bribes involved the same issue. [flores plea]
"Important and critical details about the overtime lawsuit, its origins, history and resolution are omitted from the summary of the Conspiracy or the Overt Acts in the Information," states Jobe's motion.
One such detail, states the motion, is that the case was pending before Judge Montalvo.
"Had the United States Attorney disclosed these facts to the Court, it is likely that this motion would have been unnecessary and moot because federal judges have an affirmative duty to disqualify themseves when they become aware of facts and circumstances that require mandatory disqualification such as knowledge of material facts, and when there is a likelihood that said judge would be a material witness in a cause pending before the judge."
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Among the arguments made by Jobe are that the timing of the Sheriff Officers negotiation and Flores' lawsuit make a deal by Flores regarding Sheriff Officers negotiation unlikely, and that the settlement reached between the Sheriff Officers and County was not unreasonable.
"In addition to a myriad of witnesses who would testify regarding the dearth of any factual support for these allegations, and the factual and legal impossibility associated with them, Jobe would also argue that no bribe was necessary because the settlement of the lawsuit was fair and reasonable, a conclusion that Judge Montalvo himself reached in his capacity as presiding judge over the class action lawsuit."
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The government responded to Jobe's motion Tuesday.
"By her Motion to Recuse, Movant, Martie Jobe, has asked this Honorable Court to recuse itself from something that does not exist and may never exist," writes the government lawyer.
The government response states that the Stillinger disqualification is not a precedent that binds the court to disqualify itself, as Jobe argues.
"In that Memorandum, the Court based its jurisdiction to decide the matter on several tenants (sic) of law: the Court's supervisory power to regulate lawyers' professional conduct, specifically Texas Disciplinary Rule of Professional Conduct ... and the Court's 'anomolous jurisdiction' which this Court explained permits a judge to 'entertain the merits of matters arising from the federal criminal investigations under its supervision.'"
The government's response states that any "proposed harm is futuristic and hypothetical, thus lacks ripeness."
By contrast, states the government response, the government's motion to disqualify Stillinger was "ripe" and "tangible" because Stillinger already represented three people "whose investigation had the same origin."
"The attorney had already provided legal services to all three targets, so much so, she explained to the Court, in her Motion for Clarification, she had already exhausted all fees she received from each target."
Stillinger also had spoken to and/or written to the U.S. Attorney's office, so, "in other words, she was fully engaged in representation of all three clients, which conduct gave rise to the potential for conflict."
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