Lawyers of convicted east end killer wants new trial

  

(12/27/05 - HOUSTON) -- One of the men convicted in a series of robberies, rapes and slayings that terrorized Houston in 2002 is seeking a new trial because the judge presiding over his trial was doing prosecutorial work on another death-penalty case.

Edgardo Cubas was one of three men who became known as the East End killers. He was sentenced to death in May 2004 for the rape and murder of 15-year-old Esmeralda Alvarado.

In a brief filed with the Texas Court of Criminal Appeals, Cubas' attorney Kurt Wentz contends his client should get a new trial because of state District Judge Jan Krocker's actions. The appeal points out Krocker's participation in death row inmate Martin Draughon's case before a federal court while presiding over Cubas' state court trial.

Krocker was a prosecutor for the Harris County District Attorney's Office in 1987 when she secured a death sentence against Draughon in the shooting death of a man after a robbery. After becoming a state district criminal court judge in 1995, Krocker intervened in Draughton's appeal by filing written statements from herself and witnesses she contacted. Draughon's attorneys and the Texas Attorney General's Office, which was defending the conviction, objected to Krocker's involvement.

"By resuming the practice of law in a prosecutorial capacity ... in another death-penalty case while presiding over the (Cubas) case, the trial court deprived (Cubas) of an impartial and disinterested tribunal, thereby offending a principle of justice so rooted in tradition and conscience of the American people as to violate the fundamental aspect of (due process)," Wentz wrote in his appeal.

One of the witnesses Krocker contacted to oppose Draughon's appeal included Dr. Dwayne Wolf of the Harris County Medical Examiner's Office, who later testified in Cubas' trial, Wentz said.

Neither Krocker nor the District Attorney's Office advised Cubas' defense of her actions in the Draughon case, Wentz noted.

"Judge Krocker's interests and desires were clearly similar to that of the Harris County District Attorney's Office," Wentz wrote.

Cubas' appeal was still under review, a spokesman for the District Attorney's Office said.

Krocker appointed Wentz to represent Cubas in his appeal earlier this year. Wentz then filed a motion asking Krocker to recuse herself from the appeal process. Krocker did, saying she wanted to avoid the appearance of impropriety.

(Copyright 2005 by The Associated Press. All Rights Reserved.)

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