Icenhauer-Ramirez filed the motion for a new trial after discovering that Ruiz didn't have a current "anti-bribery" oath on file with the state at the time of his death. The oath is mandated by the Texas Constitution to be renewed after each election; Ruiz had not filed since early 1997, even though Travis Co. Sheriff Margo Frasier was re-elected in 2000. Icenhauer-Ramirez argued that Ruiz was thus not technically a law enforcement officer and therefore Delamora should not have been charged with capital murder for Ruiz's death.
Denying the motion, Kocurek ruled that Delamora's trial attorney, Leonard Martinez, did not raise the oath question and thus failed to exercise due diligence, and that the issue wasn't material -- the outcome of the trial would have been the same either way. Both Icenhauer-Ramirez and Martinez dispute the latter point; Kocurek, they said, assumed Ruiz would still be considered a "de facto" officer under the law, even though the state constitution requires the anti-bribery oath to be taken prior to any other oath of office.
"We understand that it's a political decision and a big chance to take with a judicial career," Icenhauer-Ramirez said. "But it's too bad -- I was really hoping she'd have the guts to do it." Such a ruling might have set off a firestorm of appeals and protests of actions taken by peace officers whose oath isn't current -- as many are not. The Chronicle reported earlier this month that only three of the 12 deputies who participated in the fateful raid on Delamora's home -- and none of the TCSO deputies -- were actually current on their oath filings. Four have never filed the oath. (See "Disputing the 'Deputy' in Deputy Ruiz," Sept. 13.)
The other aspect of Kocurek's ruling -- that Martinez had not exercised due diligence -- "helps us establish a claim for ineffective assistance of counsel on appeal," Icenhauer-Ramirez says. That doesn't mean Martinez didn't try his best, both lawyers say; according to an affidavit filed by Martinez, he tried to gain access to the various deputies' personnel files to submit to Kocurek (who was the Delamora trial judge) for review prior to trial. In turn Kocurek was to inform him if there was anything in the files he should have access to, but the judge never made any of the evidence available. "I must assume the [oath] information was not made available to the Judge or the judge somehow missed that information," he wrote in his affidavit.
Icenhauer-Ramirez said she expects to receive the completed trial record in November, with the appeal filing to follow.