El Paso district attorney borrowing county funds to hire staff for Walmart shooting case

The El Paso District Attorney Office is borrowing more than $67,000 in county general funds to hire more staff to help dig through thousands of pieces of evidence in the Walmart mass shooting case as the cost of the capital murder trial is expected to exceed $2 million.

The total taxpayer cost for the state's mass shooter trial will likely be more than $4 million.

El Paso District Attorney Bill Hicks appeared before the El Paso County Commissioners Court in late August to request a loan of $67,158. The request was approved by the commissioners in a unanimous vote.

Hicks will begin hiring the staff on Oct. 1, which is when the new fiscal year begins for El Paso County.

Hicks requested the $67,158 as additional funds from a $2,033,499 grant awarded to the district attorney's office by the Office of the Texas Governor. The grant was given specifically for the prosecution of the El Paso Walmart mass shooter.

While the district attorney's office funding for the case is coming from the state, the county is paying for the defense of the gunman since he was assigned prominent El Paso attorney Joe Spencer as his public defender.

On the defense side, the trial could cost county taxpayers at least $2 million, County Judge Ricardo Samaniego said. The total cost will not be known until after all court proceedings conclude.

"The burden (of proof) is going to be on the state," Samaniego said. "The state is going to provide that (funding), so the money we give them (district attorney's office) has to do with the state and it's just temporary. We get paid back all that money.

"The defense, that's the one that could be very expensive. We're going to get some grants to offset that, but there's a probability that on that side, it will probably cost us about $2 million. (That) is what we're estimating. With grants and support and everything that we can (get), we're still thinking we have to be very open to believe that maybe about $2 million on the defense."

Borrowed county funds to help tackle massive amounts of evidence

The loan comes more than four years after the deadliest shooting in El Paso history and as frustration continues to grow from defense lawyers as little progress has been made in the case.

The money loaned by the county will be repaid as soon as the district attorney's office receives the additional funding from the state of Texas.

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"I didn't want to wait another month or more to get that (money) to hire that staff," Hicks said. "I need to get moving to hire that staff now ... The idea is that I'm essentially borrowing from the general fund, which is the taxpayers of El Paso.

"I'm borrowing from the general fund, but when the grant is approved and released from the El Paso County Auditor's Office, we will pay back everything that I'm borrowing from the general fund. We'll pay back from the grant, so the county taxpayer is not out any money."

The governor's office has approved the request for the additional money, Hicks said. Once all funds from the grant are received by the auditor, they will be released to the district attorney's office, Hicks said. The process should be concluded within the next few weeks, he said.

"The initial $2,033,000 has been released to El Paso County, but until that additional $67,000 gets here, the county auditor's office is not willing to release all of the grant funds to us to be able to start using those funds," Hick said. "So we know the funds are here or coming because they've already been approved by the governor's office, but they're not here ready for us to start spending. The county auditor's office hasn't released the money to us to spend. We need to get those people hired and start working on the discovery issues."

The funds will be used to hire about 12 full-time equivalent employees to help go through the discovery, also known as evidence, and inputting all of the data into computers to share the evidence with defense attorneys and later used in the trial, Hicks said.

"We have literally over five terabytes of information. It's a tremendous amount of information," Hicks said. "If you think about every agency that showed up to Walmart, that showed up to the streets surrounding Walmart, every agency that responded to any of the 911 calls, this includes even the school district police, the border patrol, every agency that responded, all of those agencies wrote reports. This is what I saw, this is what I did."

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While every report and piece of evidence needs to be organized, examined and turned over to the defense team, not all of it will necessarily be used at trial, Hicks said.

"Well, every single one of those reports is a report that has been turned over to us," Hicks said. "We have to turn every one of those reports over to the defense. Those reports probably are not germane to the issue of whether or not the Walmart shooter did or did not do the crime, but they are nevertheless information that the defense is entitled to receive."

Defense attorneys continue to wait on evidence

The amount of evidence still being examined by state prosecutors is unacceptable more than four years after the Aug. 3 2019 mass shooting and is delaying justice for the community, Spencer said.

A scheduling conference was held Monday, Sept. 25, in state court in the hope of setting a trial date. However, 409th District Court Judge Sam Medrano was unable to set a trial date as defense attorneys continue to wait for all evidence to be turned over by state prosecutors.

State prosecutors will hand over all evidence to defense attorneys by the end of December at the latest, Hicks said.

A trial date likely won't come until 2025 or later.

Even if defense attorneys do receive all the evidence by the end of the year, it will take months for the defense to do their review of all the evidence, Spencer said. Once the evidence is turned over, the next process for defense attorneys will be to hire an e-Discovery vendor to help process and prepare the massive amount of discovery.

"The e-Discovery vendor that we have talked to says it's going to take about six to nine months to organize it, categorize it, index it and get it to us," Spencer said after the scheduling conference. "It took approximately 18 months for us to review all of the discovery from the federal government, so when you add that, you're looking at 24, 27 months before we can even say we might be ready.

"That doesn't include our own discovery that we have to do, our own mitigation work that we have to do for the death penalty case. This has been a nightmare, not caused by the defense, but caused by the state of Texas."

In the federal criminal case against the gunman, the U.S. Attorney's Office turned over all evidence to defense attorneys within two years of the shooting, Spencer said.

"Huge difference — day and night," Spencer said after the hearing about the federal handling of the case. "That was what I was trying to show to the (state) court. There's a huge difference. That's a reason why we were able to streamline the case in federal court. That's the reason why I believe the federal court did what they did is because they were able to look at the discovery in an organized fashion, review what we had produced to them and make a decision that we needed to bring judicial finality to this community and close this case down. That's what we should be doing on the state side."

The state is following its normal procedures on how staff members and attorneys are handling the discovery as they prepare for the Walmart case, Hicks said.

Hicks added his office is turning over evidence to the defense as soon as they receive and review it.

"In the federal court process, they provided discovery to the defense," Hicks said after the scheduling conference. "The federal government has not provided that same discovery to us. We were not a party to the federal court proceedings. So the federal government has not provided that discovery to us. The way the federal government operates is different than the way the state operates and how we do our discovery."

As the trial date remains up in the air in the state case, the federal case against the gunman came to an end Monday, Sept. 25. Twenty-three people were killed and dozens of others wounded in the mass shooting massacre.

The gunman was ordered to pay more than $5 million in restitution to the victims and their families. The restitution, which was the final pending issue in the federal case, is being paid for the financial losses suffered by the victims and their families because of the gunman's actions.

Earlier this year, the gunman was convicted and sentenced to 90 consecutive life sentences in the federal case.

He was ordered to serve his federal sentence at the ADX Florence supermax federal prison near Florence, Colorado. However, the gunman remains in state custody at the El Paso County Jail in Downtown El Paso as he awaits trial in the state case.

The U.S. Attorney's Office did not seek the death penalty against the gunman.

Hicks is seeking the death penalty. Many community leaders and victims' family members support the decision to seek the death penalty despite the federal sentence.

Spencer argues the pursuit of the death penalty is an attempt to politicize the state's case against his client.

"I hear the DA say lawyers, judges or the DA should not decide on the death penalty that it should be the jury," Spencer said. "Well, the jury will hear what the federal government heard free from politics and reach the same decision. Only it will be at great cost emotionally to the victims and financially to the community."

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The focus of the case needs to return to the victims and give them the justice that is long overdue, Spencer said.

"It has been very frustrating dealing with three different state prosecutorial administrations on this case," Spencer said. "All politically motivated. Especially with the unprecedented harm caused by the (former District Attorney Yvonne) Rosales administration which jeopardizes the victims, their families and community from reaching judicial finality within most of our lifetimes."

He added, "I cannot be silent when victims are being used as political pawns."

Hicks is the third district attorney to handle the Walmart case. The case was first under longtime district attorney Jaime Esparza, who did not seek reelection in 2020. Rosales was elected district attorney but resigned from office amid allegations of incompetence and mishandling of cases, including the Walmart case.

Hicks was appointed in December as El Paso district attorney by Gov. Greg Abbott after Rosales' resignation.

Hicks has not officially announced if he is seeking election to remain district attorney. His focus is not on the 2024 election but on "bringing justice to the El Paso community," he said.

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

This article originally appeared on El Paso Times: El Paso DA borrows county funds for Walmart shooting case staffing