Defense lawyers allege prosecutorial misconduct in El Paso Walmart shooting case

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The capital murder and assault charges against the accused El Paso Walmart mass shooter should be dismissed, or the death penalty should be taken off the table because of repeated prosecutorial misconduct, defense lawyers said in a motion filed Monday.

The motion alleges that prosecutors since 2020 have violated the rights of Patrick Crusius, now 26, who is charged in the Aug. 3, 2019, mass shooting that killed 23 people and wounded 23 others.

The defense’s motion alleges that the state case against Crusius is “permeated with the misconduct of the El Paso District Attorney’s Office.” While many of the allegations involve former District Attorney Yvonne Rosales, some of the alleged misconduct occurred during the administrations of former DA Jaime Esparza and current DA Bill Hicks.

The allegations include improper witness contact, ongoing violations of a court-imposed gag order, suppression of exculpatory evidence, deceptive evidence-sharing practices, and violating Crusius’ right to confidential attorney-client communication.

Prosecutors have not yet responded in court to the motion. A gag order issued in July 2020 by 409th District Judge Sam Medrano largely prohibits parties in the case from discussing it outside of the court process.

The motion asks Medrano to allow the defense team to conduct additional discovery — a legal term for finding evidence held by prosecutors — that might provide information on alleged misconduct.

Because of the scope of the alleged misconduct, the judge should consider dismissing the charges against Crusius or prevent the state from seeking the death penalty.

The defense motion acknowledges that, “In general, a trial court cannot preclude the State from seeking the death penalty based on a speculative violation of the defendant’s rights.”

“However, the Court of Criminal Appeals has held that in certain circumstances, where the State has committed an egregious infraction, the trial court has the power to ameliorate the harm caused with drastic remedies, up to and including dismissing the indictment,” the motion said.

The next hearing in the Walmart mass shooting case is set for Thursday, when Medrano will discuss potential scheduling leading to a trial. Crusius has been ordered to appear at the hearing, which will mark the first time he’s appeared in state court since his arraignment in October 2019.

Crusius pleaded guilty last year to federal hate crimes and weapons charges, and was sentenced to 90 consecutive life terms in prison. The federal system has no parole, so he would spend the rest of his life in prison.

Minutes before the shooting, Crusius posted a racist screed on the internet saying he was acting to “stop the Hispanic invasion of Texas.”

Federal prosecutors opted not to seek the death penalty, and Crusius decided to plead guilty days later. The U.S. Justice Department has declined to comment on why it didn’t seek the death penalty, but Assistant U.S. Attorney Ian Hanna said at the sentencing hearing that Crusius had been diagnosed with schizoaffective disorder.

Allegations during Yvonne Rosales’ administration

Much of the defense motion highlights allegations previously made against Rosales and her team. She was elected district attorney in 2020 to succeed Esparza, but resigned in December 2022 amid allegations of repeated failures, including in her handling of the shooting case.

Defense attorneys Joe Spencer, Mark Stevens and Felix Valenzuela filed Monday’s motion.

The motion said Rosales allowed her legal advisor, Roger Rodriguez, to be in meetings discussing the Walmart shooting, even though he was not an employee of the DA’s office. That included a meeting with victims’ families on July 1, 2022, after a hearing where Medrano criticized Rosales for making public statements about the case but doing little to prepare for trial. Medrano issued a gag order just before that hearing that prohibited lawyers and potential witnesses in the case from making public comments.

It was at that meeting that Rodriguez met the family of Alexander Gerhard Hoffmann, a Ciudad Juárez resident who was among those killed at the Walmart, the motion stated. On Aug. 4, 2022, Rodriguez used family to send an email to the media criticizing Medrano and a former prosecutor in the case, the motion said, citing a report filed by a lawyer appointed by Medrano to look into who had sent the email and whether it violated the gag order.

Hoffmann’s family grew suspicious of Rodriguez in meetings and began recording their interactions with him, said the report by El Paso attorney Justin Underwood.

The defense motion filed Monday said Rosales and her team impeded Medrano’s efforts to learn the origins of the email by trying to block Hoffmann’s family from coming to El Paso for a hearing.

Hoffmann’s widow, Rosa Maria Valdez Garcia, and his son, Thomas Hoffmann, eventually testified at a Nov. 30, 2022, hearing and said Rodriguez had used the widow’s phone to send the email to the media. They also said Rodriguez had made threats against them when he believed they weren’t cooperating.

Crusius’ lawyers attempted to question Rosales about the email during the hearing on Dec. 1, 2022, but she asserted her Fifth Amendment rights against self-incrimination and refused to answer the questions.

“The DA’s Office has not yet produced any documentation or information about its office’s contact with the Hoffmann family or any subsequent internal investigation, if one was conducted by this administration, or the role played by Rosales, Cox or anyone else at the DA’s Office in impermissible conduct; or similar involvement with other potential witnesses, including other victims’ family members,” the defense lawyers said in their motion Monday.

Hicks was appointed by Gov. Greg Abbott to replace Rosales. He has served as the lead prosecutor in the Walmart shooting since taking office in December 2020.

Accusations against Hicks

The defense motion includes several accusations of violations by the District Attorney’s Office since Hicks’ appointment.

The lawyers said Hicks has regularly violated Medrano’s gag order by making statements to the media about the Walmart case.

The motion said Hicks had news conferences about the case in January and July 2023, and did an extensive interview about the case with KVIA-TV in December 2023.

Medrano conducted a closed-door meeting with defense lawyers and prosecutors in February 2024 “to address the ongoing concerns regarding compliance with the gag order,” and prosecutors and defense lawyers reaffirmed their commitment to complying with the order, the motion said.

Defense lawyers said “District Attorney Bill Hicks continued to flout the gag order” after the February meeting, though they didn’t cite specific examples.

Hicks’ statements create a prejudicial pre-trial environment for Crusius, his lawyer said in their motion.

The motion also said the District Attorney’s Office violated Crusius’ Sixth Amendment right to counsel by requesting and receiving jail visitation logs that included the defendant’s interactions with defense lawyers and with psychological experts hired by the defense.

U.S. District Judge David Guaderrama issued an order in March 2020 that any jail logs of Crusius’ meetings with his defense team not be shared with law enforcement or prosecutors, including state prosecutors.

The defense motion includes an affidavit by Kevin Lanahan, an assistant chief with the El Paso County Sheriff’s Office, stating that the DA’s Office requested “all visitation logs” in February 2023, and that the Sheriff’s Office provided the records to Hicks’ office on a weekly basis starting then.

On May 1, 2023, the DA’s Office issued a subpoena for records related to visits to Crusius by psychological professionals, “to include the doctor’s name, notes, findings, diagnosis, prescriptions and dates and times of the visits.” The records were released to the DA’s Office two days later, Lanahan’s affidavit said.

Lanahan said he learned about the release of the records on May 4, 2023, in an email from Spencer. “I immediately ordered that the records covered by the Order no longer be released to the District Attorney’s Office,” his affidavit said.

The affidavit said the records received from the subpoena were placed into a sealed envelope.

“Multiple steps have been taken to ensure that there is no further violation of the Order,” Lanahan said in the affidavit, dated May 8, 2023.

Recording of attorney-client phone calls

The earliest alleged violations cited in the defense motion are from 2020, when Esparza was district attorney.

The defense lawyers said prosecutors recorded 15 phone calls between Crusius and his attorneys from Aug. 25, 2020, to Jan. 14, 2021 (the motion appears to incorrectly date the last call in 2020.)

“Combined, the fifteen calls amount to 3 hours, 34 minutes, and 52 seconds of communications between Mr. Crusius and the defense that are protected by the attorney-client privilege that the State has in its possession,” the defense motion states. “The State’s possession of these jail calls – which span a period of nearly five months – underscores the fact that the State’s possession of these privileged calls were neither an isolated nor accidental incident.”

The defense motion doesn’t provide any information on how they know state prosecutors have recordings of calls with their client.

Esparza is now the U.S. attorney for the Western District of Texas. He hasn’t responded to a request for comment from El Paso Matters.

James Montoya, the Democratic nominee taking on Republican Hicks in the November district attorney election, was a member of the Walmart prosecution team when Esparza was in office. He hasn’t responded to a request for comment from El Paso Matters.

Prosecutor sues county over firing by Rosales

The defense motion comes two weeks after a veteran prosecutor sued El Paso County, alleging he was wrongfully terminated by Rosales.

The federal lawsuit, filed Aug. 22 by John Briggs, includes many of the allegations involving Rosales and Rodriguez that were cited by Crusius’ defense team in their motion Monday. The county is the only defendant in the case.

Briggs was fired by Rosales in August 2022 after he raised concerns about Rodriguez’s involvement in the Walmart case, according to his lawsuit.

His lawsuit alleges Rosales was “a colossal disaster as the El Paso County District Attorney. Her brief tenure was indelibly marred by incompetence and scandal so pervasive that it eventually culminated with her resignation, but only after she invoked her Fifth Amendment right against self-incrimination when asked to explain her actions.”

Briggs was originally hired by Esparza and has worked more than 25 years in the District Attorney’s Office. He was rehired by Hicks in February 2023 and serves as chief of the trial division.

This article first appeared on El Paso Matters and is republished here under a Creative Commons license.

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