Mark Raegan, The Brownsville Herald (November 5th, 2013)(Accessed November 9th, 2013)
Commentary by Shauna Makie
Senior State District Judge Manuel Bañales ruled Tuesday, November 5th, that there was not sufficient evidence of prejudice to recuse 370th State District Court Judge Noe Gonzales of Hidalgo County. Gonzales was responsible for overseeing the case of John Allen Rubio, convicted of killing and decapitating three children in 2010 while under his care. The case was re-evaluated by Rubio’s habeas lawyer David A. Schulman regarding the impartiality of Gonzales to provide funding for an evaluation of possible Fetal Alcohol Spectrum Disorder diagnosis for his client. Mitigation specialists told Schulman that if Rubio suffered from FASD, the implications on his behaviours could be used to mitigate against the death penalty. It was the delay of funding which sparked Schulmans intentions to have Gonzales recused. Schulman said that by the time the funding had been approved by Gonzales, the experts had other obligations that further delayed their abilities to provide a proper diagnosis for Rubio.
Due to the severity of the case outcome being the death penalty, Bañales had agreed to hear the case, even though he—and Gonzales—believed that the court administration challenges do not support sufficient cause for deep-seated antagonism or favoritism regarding Gonzales’ final decision. In the closing of the case, it was ruled that there was not sufficient evidence to recuse Gonzales; and although the writ was submitted incomplete, and Rubio had attained some form of cognitive delay diagnosis, the case remained definitive and his fate left in the hands of the executioner.