By Daniel Borunda
El Paso Times
Originally published Jan. 30, 2014
A Dallas-area lawyer has a filed a complaint against a federal judge in El Paso who ordered that a video be taken off the Internet in connection with the death of a man in Central Texas.
Ty Clevenger, a civil case lawyer, accuses U.S. District Judge Frank Montalvo of misconduct for issuing an order with information from only one side and without a hearing or an opportunity to respond, according to the complaint filed Tuesday with the U.S. Court of Appeals for the Fifth Circuit.
Montalvo, who has presided over high-profile public corruption cases in El Paso, declined to comment.
Clevenger represents Sandi Johnson, who filed a wrongful death lawsuit in connection with the fatal beating of her 27-year-old son Hank Johnson in 2008 in Hearne, Texas.
The case had been transferred to Montalvo’s court.
Sandi Johnson carried out a campaign to pressure Robertson County authorities to fully investigate her son’s then-unsolved death.
Court documents stated Sandi Johnson posted on Youtube.com and social media sites a video deposition of a woman who was allegedly a witness in her son’s death.
The First Amendment issue “that’s what struck me the hardest,” Clevenger said. “You are going to suspend someone’s First Amendment rights without giving them a right to their side of the story? That’s North Korean. That’s Soviet.”
Clevenger, who is a former newspaper reporter, claimed Montalvo’s order violated his client’s right to free speech and that the judge’s order was based on “ex parte” communication with only one party in the case.
“I was pretty appalled when it happened,” Clevenger said. “Any first-year lawyer knows you can’t have ex-parte communications with the judge.”
On April 24, 2013, the woman in the video wrote a letter to Montalvo asking for a protective order saying that the video was being used to “harass and bully (her) online,” the order stated.
Clevenger denied that the woman was harassed and pointed out that the video was played in public during the civil trial. Johnson’s family was awarded an $8.6 million judgement.
On May 1, Montalvo ordered that the video be removed and banned Johnson from disclosing any information about the woman.
“No one should force you into becoming a witness,” the woman wrote Montalvo again on May 29 after her name appeared as a “witness” in a Houston Chronicle story on the case, court documents stated. “Why do they continue to bother me and jeopardize my life, my family, and safety? I’m not a criminal. I’m not perfect, but I’m a Christian, mother, military spouse, college graduate, and trying to live a normal life.”
Sandi Johnson said she felt the order to remove the video was unfair. “He was not sympathetic of my needs going for justice in my son’s murder,” she said.
After five years and the election of a new district attorney, authorities charged a suspect in Hank Johnson’s death. On Monday, Trae Thompson pleaded no contest to criminal negligent homicide, reported the Bryan-College Station Eagle. Thompson, who is serving a separate four-year prison term, was given 15 months in prison.
“All this time, five and half years and the guy is basically going to walk in six months (with time served) out into the public,” Sandi Johnson said. “That is just not right, you know.”