Prosecutors in the Walmart mass shooting case are asking that a hearing scheduled later this month be delayed so they can explore possibly improper communications between the judge and defense lawyers.
At issue is what is known as ex parte communication, which is communication between a judge and one party in a case without informing the other party. In court filings Friday, the El Paso District Attorney’s Office said recent motions from defense attorneys for capital murder suspect Patrick Crusius made them aware that 409th District Judge Sam Medrano had ruled on at least three motions from defense lawyers that were not shared with prosecutors.
The District Attorney’s Office filed two motions Friday. One seeks that Medrano make public any sealed ex parte motions that aren’t permitted by narrow exceptions in the law. The second asks for at least a 30-day delay in a hearing scheduled for Oct. 31 and Nov. 1 so prosecutors can review those motions, determine their potential impact on the case, and explore possible sanctions or remedies.
Medrano set the hearing to review motions from defense lawyers and prosecutors as he prepares the case for possible trial in 2026.
Joe Spencer, one of the defense attorneys representing Crusius, declined comment about the motion when asked by El Paso Matters and said the defense would respond in court. District Attorney Bill Hicks also declined to comment. Medrano is prohibited from commenting outside of official actions for matters before his court.
The motions focus on claims raised in a Sept. 9 defense motion that accused the prosecution of improper conduct: violating an April 18, 2023, order by allowing mental health and medical professionals impermissible contact with Crusius; and failing to disclose jail surveillance video of Crusius, in violation of two court orders from 2021.
Prosecutors said they were never made aware of the three orders they are accused of violating, because the orders were in ex parte communications between Medrano and defense lawyers. Those orders are well outside the narrowly defined uses of ex parte communication in Texas laws, the two defense motions said.
“While the Code of Criminal Procedure recognizes and expressly authorizes ex parte communications in some instances, there is no statutory provision that expressly authorizes an ex parte proceeding related to a criminal defendant’s discovery request,” prosecutors said in one of the motions Friday.
Having learned of three ex parte orders in the defense motion last month, prosecutors say they need to know if there are other such motions in court files. Several hundred motions have been filed under seal – meaning they are not in the public record – since 2020.
Prosecutors said “it is simply not fair to require the State to proceed to attempt to answer Crusius’s motions and proceed to hearing in the face of not knowing what lies in the hundreds of sealed orders that may be void, three of which are certainly void. This Court should schedule a hearing, and upon hearing, unseal any void non-Ake ex parte sealed motions and orders, and any contents sealed under those motions and orders, allow the State access to such, and give the State at least and an additional 30 days afterwards to answer Crusius’s motions before proceeding to hearing on such motions.”
Judge Sam Medrano of the 409th District Court is presiding over the state trial in the 2019 Walmart mass shooing. (Ruben R. Ramirez/El Paso Inc)
Attorneys in the case have filed several motions in recent weeks after Medrano announced he would issue an order laying out a schedule to try the 5-year-old case.
Crusuis, now 26, is accused of 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. Prosecutors are seeking the death penalty.
The trial on state charges was delayed while a separate federal case moved forward, charging Crusius with hate crimes and weapons charges. He pleaded guilty to those charges in 2023 after federal prosecutors said they wouldn’t seek the death penalty. He was sentenced to 90 consecutive life terms in federal prison, with no possibility of parole.
Crusius admitted in the federal case that before the shooting, he posted a screed online saying he was trying to “stop the Hispanic invasion of Texas.” Both the prosecution and defense said at Crusius’ federal sentencing that he had a history of serious mental illness.
Defense lawyers have raised allegations of prosecutorial misconduct by the District Attorney’s Office going back to 2020, and have said Medrano should consider dismissing the case or removing the death penalty as an option. The prosecution allegations of impermissible contact between defense lawyers and the judge, if proven true, could lead to efforts to remove Medrano or the current defense team from the case.
The post Walmart shooting prosecutors say judge, defense lawyers may have had improper secret communication appeared first on El Paso Matters.
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