Will judge be able to set trial date in Walmart mass shooting case after years of delay?

The state's death penalty case against the El Paso Walmart mass shooter remains in limbo as a district court judge, for the third time, will hear if prosecutors and defense attorneys are finally ready to move forward toward a trial date.

El Paso District Attorney Bill Hicks, his team of prosecutors and the gunman's attorneys will appear at 1:30 p.m. Thursday, Feb. 22, before Judge Sam Medrano of the 409th District Court to discuss when both sides believe they can begin handling pretrial motions and possibly be ready for trial.

Thursday's hearing comes four years, six months and 19 days since Patrick Crusius came to El Paso and gunned down shoppers at an El Paso Walmart in a racially-motived mass shooting targeting Hispanics. The Aug. 3, 2019, mass shooting left 23 people dead and dozens more injured.

The hearing will be the third in the past six months where Medrano asked state prosecutors and defense attorneys to give him an update on their progress on the case and when he could possibly schedule a trial date.

Hearings in September and January both resulted in no trial date being set as both sides continue blaming the other for the delays.

More: Scheduling conference reveals ongoing evidence delays in Walmart mass shooting case

A frustrated Medrano ended January's hearing stating he was "no closer to scheduling or establishing a schedule." Medrano has declined to comment as the case remains pending.

Medrano ordered both sides to come to court Thursday with timelines on when they believe they will be finished reviewing all evidence and a list of pretrial motions.

The state prosecutors trying the case include Hicks, Rebecca Tarango, Michael Williams and John Davis. The gunman's defense attorneys are Joe Spencer, Mark Stevens and Felix Valenzuela.

Hicks: 'We are ready for trial'

Prosecutors plan to ask Medrano for a deadline for all pretrial motions to be filed by April 1 and hearings on the motions to be held by June 1st with a jury questionnaire ready shortly thereafter, Hicks said.

"We're going to once again announce that we are ready for trial," Hicks said. "We have not filed anything new. Everything is ready to go. I anticipate that the defense is going to continue to try to delay matters. They do not want justice for the victims. They want to delay matters. So we'll sit back and wait and see what their excuses are for why they cannot go to trial.

"We're fighting to get this case to trial so that hopefully an El Paso jury can make the determination of what is justice on this case. That is all."

Joe Spencer, lead attorney for the gunman, said he is seeking justice as well for the El Paso community. Still, he said, a trial date this year is unlikely.

"On Thursday, we can give the court enough information so that the court will know when is a feasible time to start a scheduling order and actual trial on this case and not give a false trial date that's going to get moved for many different reasons," Spencer said.

"I feel for the victims and the community who (have) had to go through so much political decision-making on a case of such great importance to El Paso, that I would hope that we in El Paso are above politics and are more interested in justice and not about seeking reelection."

Spencer: 'Review this case absent of politics'

The guilt of the gunman has not been in question. The main argument in state court is whether the death penalty should be sought against the gunman.

While the state's case has languished, the federal case against the gunman has come and gone with the U.S. Attorney's Office successfully reaching a plea agreement with the gunman and getting him sentenced to 90 consecutive life sentences in a super max federal prison.

More: El Paso Walmart mass shooter ordered to pay $5 million in restitution to massacre victims

Unlike the El Paso District Attorney's Office, the U.S. Attorney's Office did not seek the death penalty against the gunman.

"I want a DA to handle this case in such a way that the federal government did absent of politics and based on the merits of the case," Spencer said.

Federal prosecutors, who later sought the death penalty in the "Bowers case (2018 Pittsburgh synagogue shooting), as well as the New York case (Buffalo supermarket shooting)," rejected seeking the death penalty in the Walmart case, he said.

"They took the politics out of the decision-making," Spencer said. "So I want a DA that's willing to have the fortitude to review this case absent of politics."

Hicks has repeatedly denied the 2024 general election, during which he will seek to keep his seat as district attorney, has played any role in his handling of the case. The two district attorneys who handled the case before Hicks planned to seek the death penalty.

Many family members of those killed in the horrific attack and some community leaders have called for prosecutors to seek the death penalty against the white supremacist being held in the county jail.

Hicks said it is defense attorneys who are playing politics by hoping a new district attorney will be elected in November who will decide against seeking the death penalty.

"How is it political for me to want to seek justice for the people of El Paso," Hicks asked. "I don't understand how they're saying it's political when all I want to do is get this case to trial. How is that political? It's not political and it's been that way from the very beginning.

"The only thing I've ever said is that I want to get this case on track and to trial. How is it political for me to say that I want to take this case to trial and have a jury decide what the appropriate punishment is in the biggest case in El Paso's history?"

Delays caused by massive amounts of evidence

A major delay has been the large amount of evidence, known as discovery in court proceedings, in the case. Hicks said the gunman's attorneys have received all major evidence in the case. However, defense attorneys were still receiving evidence as late as January.

"We haven't received any mass discovery of late and I think after the last, we're not going to," Spencer said. "I just could not understand why we kept getting stuff over and over. We haven't gotten anything else. We will probably be getting supplements that are going to be minuscule and that's not going to be any issues. We just have an enormous mess."

Spencer and his team are now going through thousands of pieces of evidence to prepare their case. He added the evidence turned over included a mass amount of duplication, which has slowed his team's progress.

"If they're duplicates, why are we getting them? We have an obligation to look at it," Spencer said. "And I have not yet found an answer as to why he says that they had turned over duplicates. One of the things he seems to say is that, when he gets information from the agency, he just turns it over to us. So that tells me he doesn't look at it. He doesn't vet it. He doesn't see if if there's anything that's corrupted or it's got virus. He just turns it over to us. That makes no sense."

Hicks countered duplicates should not be hindering the defense's preparation for trial.

"They're excuses," Hicks said. "We've completed the state's discovery, one of those copies being turned over in October, one in December, and then the final one, which was the courtesy copy, in January. It took two of our attorneys one month to go through the entire federal discovery. They have 16 people plus a discovery expert. I don't understand why it's taken them so long to go through the discovery. They should be able to go to trial on this case."

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

This article originally appeared on El Paso Times: Hearing set in death penalty case stemming from El Paso Walmart shooting