'Contentious' court hearing expected Thursday in El Paso Walmart death penalty case

A "contentious" court hearing is expected as the state's death penalty case against the El Paso Walmart mass shooter continues to move at a slow pace nearly four and a half years since a racially-motived shooting left 23 people dead and dozens more injured.

El Paso District Attorney Bill Hicks and gunman Patrick Crusius' attorneys will provide updates on where each side stands on the case during a status hearing at 1:30 p.m. Thursday, Jan. 18, before 409th District Court Judge Sam Medrano at the Enrique Moreno County Courthouse in Downtown El Paso.

Key arguments expected to be heard during the hearing include the handling of evidence, request for deadlines for pretrial motions to be filed to begin the process of setting a trial date and splitting the original case against the gunman into two different cases.

"We anticipate that (Jan.) 18th will be a contentious hearing with various allegations being made by the defense," Hicks said. "We ultimately hope that the judge will set a deadline date for all pretrial motions to be heard or to be filed. And then for the judge, once those pretrial motions have been filed, we, of course, will ask for hearing dates after that so that the judge can wade through all of the pretrial motions and have hearings on those motions and then we can get to the actual purpose of being here, which is to try this case to a jury."

The gunman's attorney, Joe Spencer, also is hopeful a deadline for motions will be set at the hearing but said his team continues to receive "massive amounts of evidence" from state prosecutors. Evidence is also referred to as discovery in court proceedings.

"We want to get to a trial date assuming we're able to make sure we have all of the discovery and we reviewed it," Spencer said. "We are in the process of going through what was dumped on us in the last six weeks and we hope to have a report to the judge on Thursday of what the District Attorney's Office has given us and when we think we might be able to go through it because it hasn't been given to us in a format with the date stamped, index or categorized that is not usable without having to go to each individual file."

Medrano declined to comment.

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The gunman, from Allen, Texas, already pleaded guilty to committing the Aug. 3, 2019, mass shooting at an East El Paso Walmart. He killed 23 people and injured dozens more. The gunman confessed during the federal court proceedings to being a white supremacist and targeting Hispanic shoppers at the store during one of the worst mass shootings in U.S. history.

He pleaded guilty Feb. 9 to 90 federal charges. He was sentenced July 7 to 90 consecutive life sentences in federal court for the mass shooting. However, unlike the U.S. Attorney's Office, the El Paso District Attorney's Office is seeking the death penalty against the gunman.

The state prosecutors trying the case include Hicks, Rebecca Tarango, Rick Locke and John Briggs. The gunman's defense attorneys are Spencer, Mark Stevens and Felix Valenzuela.

What evidence remains pending for defense review?

A gag order issued in the case prevents state prosecutors, defense attorneys, witnesses or anyone directly connected to the case from publicly commenting on specific evidence or issues.

A status hearing held in September revealed delays, with state prosecutors still working to turn over evidence to the Walmart mass shooting gunman's legal team.

Hicks and his team promised in September all major evidence would be turned over to defense lawyers by the end of December. Hicks said his team met that deadline.

"All of the substantial evidence, all of the material evidence, all of the main bulk of the evidence has been turned over to them," Hicks said. "There is always going to be supplemental evidence or additional supplements that need to be turned over. Every time we meet with witnesses, there's some addendum to a witness statement, and that is always going to be the case and always is the case in almost all complicated capital murder-type cases.

"So there will always be ongoing discovery, as is our obligation. So, any time we discover anything new, we are obligated to turn that over. However, and I emphasize all substantial evidence, everything substantial has been turned over to the defense in this case and was done so by the early- to mid-part of December."

Defense attorneys, however, continued to receive key evidence in the days leading up to Thursday's hearing, Spencer said.

"We got an email (Tuesday) saying, 'oh, we've got more evidence that we're downloading that we're going to get to you that we just got from detectives and rangers back in August,'" Spencer said. "He (Hicks) said they were ready in November. He said they were ready in December. He said they turned over the evidence and we have emails from their office saying, 'come pick up more evidence.' So he keeps misrepresenting when he says he's ready to go (to trial). He knows that we have to have all of the evidence, and he knows what our ethical, moral, and legal obligation to our client is to review all of the evidence. He's being very disingenuous when he represents to the public that he is ready to go."

Without defense attorneys being given adequate time to review all evidence, the case against the gunman will remain pending in state court, Spencer said.

"This case is not going to reach judicial finality if we rush to trial," Spencer said. "If we are not given all of the evidence and allowed to review it, we're going to be back here 20 years from now trying this case again. He (Hicks) first came into office a year ago and represented to the public that the Walmart case was going to be his number one priority. Why in the last six weeks have we gotten over 10 terabytes of discovery?"

Hicks said he and his team are ready for trial when Medrano sets a trial date.

"We are absolutely ready to try the case now," Hicks said. "However, of course, the trial process is that we have to go through pretrial hearings. We understand that we are ready to go through those pretrial hearings. We just need the court to set a deadline for both sides to file pretrial motions to have those hearings. And then the next process after that will be to go through the jury selection."

Hick added, "This has been the number one priority since I took office and absolutely has remained the number one priority. We continue to move this case forward. I'm very proud of the work of everyone in this office. We are moving this case forward with efficiency and with an eye towards seeking justice for the people of our community."

Court filings begin to show legal strategy as trial awaits

The gunman was initially indicted Sept. 12, 2019, on one count of capital murder of multiple persons. He was then reindicted June 25, 2020, on one count of capital murder of multiple persons and 22 counts of aggravated assault with a deadly weapon.

In September, Hicks dismissed the aggravated assault with a deadly weapon on the 2020 indictment. He then reindicted the 22 counts of aggravated assault with a deadly weapon on their own, court records show. The gunman now faces two cases — one case of capital murder of multiple persons and another with 22 counts of aggravated assault with a deadly weapon.

The cases will be taken to trial separately before two different juries, Hicks said.

"They (previous DA Jaime Esparza administration) indicted the capital murder charge with the aggravated assault charges in order to preserve the statute of limitations and to give the subsequent administrations the maximum amount of latitude in deciding what would be the best way to proceed to trial," Hicks said. "In our strategy decisions, we have decided that the best way to streamline the trial process, we have indicted the aggravated assault charges with the hate charge provided and taken them from a second degree to a first degree felony under a separate case, and then dismissed the aggravated assault charges out of the capital murder charge, creating two separate cases."

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The capital murder charge would likely go to trial first, Hicks said.

"We presume that the capital murder charge case will go first," Hicks said. "Whatever the jury decides to be the appropriate punishment on the capital murder charge, the aggravated assault charges themselves, the facts of the aggravated assault charges are all part of what happened with the capital murder, so you can't separate the facts, you just separate the charges. So it's legally, I understand a little confusing, but it doesn't mean that the facts are separated. Just the charges are separated."

Spencer argued the decision to separate the case would only prolong the process and cost taxpayers more money.

"This tells me that they (state prosecutors) do not understand what goes on when it comes to jury selection," Spencer said. "This seems like they are actually attempting to minimize the other 22 victims and give a false sense of hope to the community that somehow it's going to make jury selection shorter. To me, it's going to be the complete opposite. It's not going to make it shorter. We're going to double the cost to the taxpayer. We're going to double the time of getting to judicial finality."

The decision to split the cases will not delay the case as the verdict on the capital murder charge will impact how his office moves forward on the other charges, Hicks said.

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"It will not delay the process at all," Hicks said. "The decision on whether or not to go forward on the aggravated assault charges will be made after the conclusion of the capital murder trial."

Hicks added any suggestion that the decision puts more importance on one set of victims over the other victims is out of line.

"Every victim in this case is important to us," Hicks said. "Every victim of this case, whether they are the families of the deceased, the injured, victims who survived, or even the people who were just in the Walmart and suffered great mental distress being subject to having someone killed right next to them.

"Every victim of this case, even our community, our victims at large, everyone is a victim of this case. And everyone means a great deal to us. You can't value one person's life over another. You just can't do that. That's just impossible to do, and it's, quite frankly, offensive to even suggest."

Aaron Martinez may be reached at amartinez1@elpasotimes.com or on Twitter @AMartinezEPT.

This article originally appeared on El Paso Times: El Paso Walmart shooter case faces contentious hearing