Judges have a sworn duty to be impartial when trying cases, especially criminal cases where life and liberty are at stake and the government bears all burden of proof.
Elia Cornejo Lopez was elected to a criminal court judgeship in Cameron County, Texas in 2009. She secured her election victory with an emotionally charged, mud-slinging campaign. Her primary campaign issue was the need for judges to be tough on defendants in child abuse cases—something she charged that her unseated opponent, Judge Abel C. Limas, had not been. Lopez ran the following three political ads against Limas:
- “Abel Limas did not give justice to baby Emmanuel, an eight-month-old baby killed by his mother. She got probation deferred adjudication for murder … Enough is enough. Say no to justice Abel style. Give families and children justice.”
- “How many more children are we going to let Abel Limas victimize with his rulings from the bench? Say enough is enough and vote for Elia Cornejo Lopez for judge.”
- “I knew I would be attacked personally if I ran for this Court, but my love for the children gave me the courage to run in this race.”
Judge Cooperates in Public Corruption Case
In the wake of that election, Limas was indicted on federal racketeering charges in 2011 and, in August of 2013, was sentenced to six years in prison. Limas admitted that the local Brownsville judicial system functioned as a “criminal enterprise.” His cooperation and independent FBI investigations led to the indictments of eight other prominent Brownsville residents, including a state representative, the district attorney and several well-known criminal defense attorneys.
In June 2012, Limas testified for the government against one of the local attorneys, Ray R. Marchan, who was found guilty on seven counts of racketeering, aiding extortion and mail fraud. During trial, Marchan’s attorney, Noe Garza, got the former judge to name other Brownsville judges who were involved in unethical conduct or criminal wrongdoing. Limas pointed the finger at Judge Lopez as one of the corrupt judges. Criminal charges have never been filed against Judge Lopez and, in July of 2013, she filed a civil lawsuit against Limas for slander.
Judicial Misconduct in Child Abuse Case
Whether Judge Lopez was involved in the kind of criminal wrongdoing Limas and a host of other prominent Brownsville political figures were involved in remains unclear, but during that time frame she was most definitely involved in judicial misconduct in the case of Abraham Jacob Proenza, also represented by Attorney Noe Garza, who had been indicted in April 2010 by a Cameron County grand jury for the first-degree felony offense of injury to a child by omission.
The Proenza case began in August 2008 when the 32-year-old Proenza was arrested for failing to feed and seek medical treatment for his four-month old nephew. The child had been sick for days, vomiting and being malnourished. Proenza would tell authorities that he did not seek medical treatment for the child because the local Su Clinica had a strict policy that it would not treat a child unaccompanied by a parent or legal guardian. Proenza was caring for the child while its mother was away working in Minnesota.
That was Proenza’s defense at his February 2013 trial over which Judge Lopez presided. Defense counsel called Dr. Carol Grannum of Su Clinica to testify about the medical facility’s treatment policies. Dr. Grannum conceded that if a child was not accompanied by a parent, the clinic would not see the child, even for follow-up appointments.
Judge Interferes with Defense Witness
Judge Lopez did not like the beneficial direction Dr. Grannum’s testimony was taking toward the defense. The judge, in effect, took over the cross-examination of the doctor with numerous unsolicited questions, including the circumstances under which the clinic would see a sick child not accompanied by a parent.
Defense counsel attempted to clarify the situation by saying that the person bringing a sick child to the clinic without a parent must have authorization from the parent before the clinic would treat the child.
Judge Lopez intervened again in front of the jury: “Oh, just any letter would do saying: hey, I’m authorized … I give authority to Elia Lopez to take my child to the clinic.”
Judge Offers Commentary into Evidence
In short, Judge Lopez intended to discredit defense counsel’s clarification about the necessity for authorization by telling the jury that any kind of note would have sufficed for Proenza to have secured treatment for his nephew.
Judge Lopez got so irritated with Dr. Grannum that she bombarded the doctor with rapid fire questions trying to get Grannum to concede that Proenza could have gotten treatment for his nephew by simply lying and saying he was the child’s father.
After the doctor conceded that that would have happened, Judge Lopez then told jurors that her own doctor allowed her brothers and sisters to take her own children to the doctor when the judge was unable to take them herself.
Judge Lopez clearly questioned Dr. Grannum, and other witnesses, and even interjected facts into evidence with the obvious intent to harm Proenza’s defense.
Texas law is on this issue is unequivocal: Article 38.05 of the Texas Code of Criminal Procedure prohibits a trial judge from commenting on the weight of the evidence or otherwise divulging to the jury her opinion of the case.
Judges Should Not Examine Witnesses or Comment on Weight of Evidence
As one Texas appeals court said in 1992: “A trial judge should not examine witnesses who are testifying before a jury. We disapprove of cases which suggest that trial judges may generally examine witnesses whenever they feel that the jury does not understand the evidence being presented.”
Judge Lopez has an unmistakable bias in child abuse cases. This was evidenced during her 2009 election campaign. Local attorneys, including Proenza’s attorney, have sought (and in at least one case secured) her recusal from these kinds of cases. It is a sad enough commentary on the judicial system when a judge publicly expresses his/her biases outside the bench, but it completely undermines the integrity of the system when the judge makes his/her biases abundantly clear in a courtroom before a jury while trying a criminal case, as Judge Lopez did in the Proenza case.
Claims of Judicial Bias, Impartiality Cannot be Forfeited
Proenza’s attorney did not object to, or otherwise preserve Judge Lopez’s conduct for appellate review.
Fortunately, on November 15, 2017, the Texas Court of Criminal Appeals held that “Although Proenza did not contemporaneously object to the trial judge’s improper questioning of a witness, he was nevertheless entitled to appellate review of his claim that, in so doing, the judge violated Texas Code of Criminal Procedure Article 38.05. This is not because the trial judge’s comments rose to the level of ‘fundamental error,’ but rather because claims brought under Article 38.05 are not … subject to forfeiture by inaction. We remand this case to the court of appeals to apply the proper harm analysis on the merits of Proenza’s claim.”
We can only hope that the appeals court will find “harm” in Judge Lopez’s violation of Art. 38.05. Her conduct in the Proenza case demonstrates quite clearly that she could not sit impartially in this child abuse case. Her publicly available comments made during her election campaign indicate she may not be suitable for any criminal cases involving child abuse. We can only hope the Judge Lopez now appreciates that she cannot be a child protective services investigator and a judge at the same time and that she will take greater efforts to assure defendants get a fair hearing in her courtroom.