DA asks appeals court to block hearing in El Paso Walmart mass shooting case
by Robert Moore
October 29, 2024
The District Attorney’s Office on Tuesday asked an appeals court to block or limit a hearing this week into allegations of prosecutorial misconduct in the Walmart mass shooting case, saying 409th District Judge Sam Medrano acted improperly in failing to review orders he has issued in the case.
District Attorney Bill Hicks and Assistant District Attorney John Davis asked the El Paso-based Eighth Court of Appeals to issue a writ of mandamus to Medrano, a rare action in which someone asks a court to order a public official, usually a judge, to fulfill legally required duties. He also asked the three judges on the court to delay a hearing Thursday and Friday into allegations by lawyers for accused mass killer Patrick Crusius that prosecutors have violated his constitutional rights.
The request for the writ of mandamus asks that the appeals court order Medrano to make public any orders requested by the defense team without notifying the prosecution. A September motion by the defense lawyers referenced three such orders, known as ex parte orders, which are permitted under narrow circumstances.
The Eighth Court of Appeals has not yet ruled on the prosecution requests.
Attorneys for Crusius filed a response to the prosecutor’s motion Tuesday morning, saying the ex parte orders are lawful. The defense attorneys – Joe Spencer, Felix Valenzuela and Mark Stevens – also argued that the ex parte orders are connected to a small fraction of the prosecutorial misconduct allegations to be explored at this week’s hearing.
The attorneys asked the Eighth Court of Appeals to deny the effort to delay this week’s hearing or to limit any stay order to issues related to the ex parte orders.
At an Oct. 24 hearing, prosecutors raised concerns about orders requested by defense attorneys and issued by Medrano without notifying prosecutors. They said a 2023 ruling by the Texas Court of Criminal Appeals restricted use of so-called ex parte orders to very rare circumstances.
Defense lawyers said the orders in 2021 and 2023 involved directives to preserve videos of Crusius’ detention, to prevent jailers from providing prosecutors with information about their visits with Crusius, and for medical treatment.
Although prosecutors originally asked Medrano to appoint a third party to review the ex parte orders in the case, Davis at the hearing said Medrano could do it himself. Medrano said at the hearing that he already had done so.
Prosecutors asked that he delay this week’s hearing because some of the defense allegations of prosecutorial misconduct involved ex parte orders they had not seen.
Medrano denied the prosecution motion to delay this week’s hearing, but he did order that four ex parte orders issued after the 2023 Court of Criminal Appeals ruling be made public.
He did not order the release of any ex parte orders issued before the 2023 ruling, and prosecutors are asking the Eighth Court of Appeals to order the release of all orders that don’t comply with that ruling.
Although rarely used by prosecutors, this is the second time an El Paso district attorney has sought a mandamus against Medrano in the Walmart mass shooting case. Then-District Attorney Yvonne Rosales unsuccessfully sought a mandamus from the Eighth Court of Appeals in October 2022 to order Medrano to lift a gag order he placed on lawyers and witnesses in the shooting case.
Rosales, a Democrat, resigned from office in December 2022 as she faced a removal petition that accused her of misconduct in the Walmart case and other official actions. Gov. Greg Abbott appointed Hicks, a fellow Republican, to succeed her.
In making the prosecutorial misconduct allegations, defense attorneys have said Medrano should consider dismissing the charges against Crusius or removing the death penalty as a punishment in the case if he determines that prosecutors violated the defendant’s Sixth Amendment rights to a fair trial.
The defense team has raised numerous allegations of misconduct since 2020. El Paso has had three district attorneys in that time: Jaime Esparza, Rosales and Hicks. The allegations include improperly obtaining recordings of conversations between Crusius and his attorneys; obtaining jail visitation logs of visits between the defendant and his lawyers and mental health professionals, in violation of court directives; witness intimidation; and not turning over evidence to the defense as required by law.
Hicks has denied the allegations.
The Thursday hearing also was scheduled five days before the Nov. 5 election, which includes the district attorney’s race. Hicks is being challenged by Democrat James Montoya.
Crusius is charged with 23 counts of capital murder and 22 counts of aggravated assault with a deadly weapon in the Aug. 3, 2019, mass shooting at an El Paso Walmart. The state prosecution of the case was delayed until federal prosecutors completed their case against Crusius, who has admitted being the gunman and opening fire at the Walmart to “stop the Hispanic invasion of Texas.”
He pleaded guilty to federal hate crimes and weapons charges last year after federal prosecutors decided not to seek the death penalty. He was sentenced to 90 consecutive life terms in federal prison, which carries no possibility of parole.
The U.S. Department of Justice has refused to say why it didn’t seek the death penalty, but defense lawyers and a prosecutor said at a sentencing hearing that Crusius had an extensive history of mental illness dating to childhood and had been diagnosed with schizoaffective disorder.
This is a developing story and will be updated.
