El Paso district attorney faces trial to oust her from office over incompetency, misconduct claims

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Setting up what would be an incredibly rare proceeding, the El Paso County Attorney said Tuesday she will ask for a trial to remove the border city’s top prosecutor based on allegations of incompetence and misconduct.

Jo Anne Bernal filed a motion in state district court saying she would accept the role of prosecutor in the case, asking a jury to decide whether El Paso County District Attorney Yvonne Rosales should lose her job before her term expires in 2024. The decision was the latest development in a series of scandals that has surrounded Rosales since she took office nearly two years ago.

Rosales has seen judges this year throw out nearly a thousand criminal cases because her office routinely missed legal deadlines to get charges filed. Last winter, a murder defendant was freed from jail because a judge found one of her top prosecutors vindictively sought a death penalty after being caught unprepared for trial.

Most recently, her office was implicated in possibly criminal allegations of witness tampering and intimidation in Texas’ capital murder case against the alleged gunman in El Paso’s 2019 Walmart massacre. Rosales’ private attorneys have denied the allegations of her involvement, and she has long said criticisms against her are politically motivated.

This summer, with chaos swirling around Rosales, a defense attorney who represented the freed murder defendant filed a court petition to trigger a rarely used process that can remove local elected officials from office for incompetence or misconduct before their terms expire.

Any Texas resident can file such a petition, which, if a state district judge allows it to proceed, leads to a formal citation against the office holder and puts the decision on whether or not to prosecute on the local county attorney.

Attorney Omar Carmona based his petition largely on low numbers of criminal case filings by Rosales’ office, the swath of dismissals, the vindictiveness ruling and what he called a “mishandling” of the Walmart mass murder case — before the newest allegations of witness tampering went public.

In September, a judge signed off on the petition, forcing Bernal to decide whether or not to take the matter to trial. The visiting judge, Tryon D. Lewis from Odessa, could also suspend Rosales and appoint a temporary replacement as the case proceeds, though he has not yet done so. In her response, Rosales denied all of the claims of incompetence and misconduct, and argued the statute allowing removal of local officials is itself unconstitutional.

On Tuesday evening, the district attorney’s office said in a statement it was not surprised by Bernal’s decision.

“It is saddening that El Paso County and the families we represent will now have to endure more disruption amidst an important time for the DA’s office to serve justice throughout our community,” the statement read. “My loyalty and focus will remain on improving the criminal justice system and the DA’s office as a whole despite this political distraction.”

Carmona said he knew the county attorney’s decision wasn’t easy.

“Ms. Bernal is definitely the kind of leader this community needs, so I really appreciate her decision,” he said. “And I know it’s one that is not political. It’s just one based on the facts and one that is well thought out.”

Now, the defense attorney said, he hopes Rosales will resign, to not “put the community through a long drawn-out trial.” The district attorney’s statement Tuesday did not indicate she would leave willingly.

“Know that I will continue to fight for every citizen and family in our community to ensure that due process and justice is served,” the statement ended.

If Rosales is kicked out of or leaves office, El Paso’s next district attorney would be selected by whomever wins the gubernatorial election next week. The governor’s chosen replacement would then hold the office until the county selects its choice in the 2024 election.