A hearing on allegations of prosecutorial misconduct in the Walmart mass shooting case will continue in December after a second day of arguments Friday focused largely on details of policies and procedures by the District Attorney’s Office.
Lawyers for the man accused of killing 23 people and wounding 22 others at the Cielo Vista Walmart in 2019 questioned two people who acknowledged listening to recordings of phone calls between the suspect and his attorneys.
Claudia Hernandez, a paralegal for the District Attorney’s Office, testified that she listened to four such recordings, some multiple times, between July 2022 and February 2023. The recordings were available through an online system maintained at the El Paso County jail.
She said she stopped listening to the recordings as soon as she realized they involved an attorney meeting with a client.
“I didn’t hear what you guys talked about. I heard the entrance of the call,” Hernandez said under questioning by defense attorney Felix Valenzuela.
El Paso District Attorney’s Office paralegal Claudia Hernandez is sworn in for a court hearing on Friday, Nov. 1, 2024. (Gabriela Velasquez/El Paso Times)
When pressed by Valenzuela on why she listened to some recordings a second or third time after learning they involved an attorney and her client, Hernandez said she didn’t take any notes while she was listening.
“And then because I was going back and forth to do another thing, I forgot where I was at,” she said.
“So you listened to the same phone call three times and did not take any notes on that phone call?” Valenzuela asked.
“I didn’t,” Hernandez said.
She said he was instructed by Assistant District Attorney John Briggs to review recordings of jail calls made by Walmart shooting suspect Patrick Crusius.
Briggs, who also was called to testify Friday, said he believed prosecutors have a legal right to listen to jail recordings between defendants and their lawyers, but he wouldn’t do it for other reasons.
“It might be constitutional, but it’s not Christian,” Briggs said.
Assistant District Attorney John Briggs answers questions from El Paso District Attorney Bill Hicks during hearing in the Walmart mass shooting case on Friday, Nov. 1, 2024. (Gabriela Velasquez/El Paso Times)
Prosecutors reiterated through hearings Thursday and Friday that no one on their staff listened to the contents of the recording or used it to gain an advantage in the case. A key part of their argument to misconduct allegations has been that even if they made mistakes, their actions didn’t impact the defendant’s constitutional rights to legal representation and a fair trial.
District Attorney Bill Hicks, who spoke infrequently during the two days of hearings, cross-examined Briggs and attempted to undermine the credibility of former Assistant District Attorney Loretta Hicks, who testified Thursday that Hicks ignored her when she raised questions about the recordings and other ethical issues.
Outside of court, Hicks has called Hewitt and other attorneys who left the office “disgruntled.” During the hearing, he asked Briggs, who was Hewitt’s immediate supervisor, if the District Attorney’s Office should have attempted to retain her when she announced her resignation in November 2023.
Briggs paused for 10 seconds and said, “I was not in favor of retaining her.” He was not asked to elaborate.
The other witness who testified to listening to records of attorney-client conversations was Michael Lara, a former police homicide detective who retired in 2020.
He said he listened to four recordings of such conversations for about half an hour on Aug. 31, 2020. Lara said he couldn’t remember why he listened to the conversations, but said it might have come at the request of the District Attorney’s Office.
Lara didn’t provide details on the contents of the call and said he didn’t have access to reports he might have made because he’s no longer with the Police Department.
Defense attorneys are claiming that prosecutors violated the rights of their client by listening in on privileged phone conversations with attorneys, improperly obtaining records of the defense team visiting him at the jail, not turning over evidence as required, intimidating witnesses, and other issues. Prosecutors have denied the allegations.
Crusius, 26, faces state charges of capital murder and aggravated assault with a deadly weapon, and could face the death penalty. His attorneys have asked 409th District Judge Sam Medrano to dismiss the charges or remove the death penalty as a punishment if he finds that prosecutors have violated the defendant’s constitutional rights.
Crusius has been present at this week’s hearing but has shown no emotion and hasn’t interacted with his lawyers to any degree. He appeared to doze off at times Friday afternoon.
Accused gunman Patrick Crusius sits next to defense attorney Mark Stevens at a hearing on Friday, Nov. 1, 2024. (Gabriela Velasquez/El Paso Times)
The hearing will resume Dec. 11.
No trial date has been set on the state charges. Crusius pleaded guilty to federal hate crimes and weapons charges in the Aug. 3, 2019, mass shooting at an El Paso Walmart that he has acknowledged was his effort to “stop the Hispanic invasion of Texas.”
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