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In Walmart mass shooting case, which prosecutor goes to court first?

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The Feb. 7 90-count federal indictment in the Walmart shooting will inject a new issue into the race to succeed El Paso District Attorney Jaime Esparza.

The federal indictment accuses the alleged gunman with hate crimes and weapons violations in the Aug. 3 attack at the Cielo Vista Walmart that killed 22 and wounded 24 others. The accused gunman allegedly wrote in an online manifesto posted shortly before the killing that the attack “is a response to the Hispanic invasion of Texas.”

The accused gunman was indicted in September on a state charge of capital murder. Both the federal and state charges carry a possible death penalty.

Because both federal and state charges have been brought, one of the jurisdictions will have to agree to step back and let the other proceed first. Neither prosecutor — the El Paso DA and the US. Attorney for the Wester District of Texas — has offered yet to take that step.

“We’re actively discussing those sorts of issues with the district attorney,” U.S. Attorney John Bash of San Antonio said at a news conference Thursday after the indictment was handed up. “In terms of when the trials will be, which goes first, that’s really ultimately probably up to the judges in the case and when they want to schedule trials.”

Esparza declined to comment, but his office offered a statement that sidestepped the issue: “The District Attorney’s Office will continue to work hard to ensure that justice is done and that the shooter is held accountable by our community.”

Esparza isn’t seeking re-election this year after holding the job for 27 years. The four candidates running in the March 3 Democratic primary to replace him all said local prosecutors should go first in prosecuting the Walmart massacre case. No Republicans are running.

Karen Dykes: “Without a doubt, the state should go first. We have a vested interest in ensuring justice on behalf of each and every victim of the August 3rd shooting, their families, friends and the entire community. I recognize that some may have concerns about the cost of the trial. However, this is bigger than money; justice for El Paso is priceless.”

James Montoya: “The August 3rd massacre is the worst criminal offense that has ever occurred in El Paso. It was an attack on our community and who we are. That is why I firmly believe it should be this community that holds the defendant accountable and why my priority will be that he be tried first in state court before a jury of El Pasoans.” (Montoya is currently an assistant district attorney and is part of the local prosecution team for the shooting.)

Yvonne Rosales: “The state has already started criminal trial proceedings, beginning with the arraignment, followed by status hearings, and developing a juror questionnaire.  Therefore, the state should proceed first, and have a jury from this community determine the fate of the defendant. There is no reason to believe that a fair and impartial jury cannot be impaneled just as in other high profile cases that have occurred locally.”

Roger Montoya: “Personally, I think that the state of Texas should prosecute the case in the first instance. … The expense of trying the case will be unprecedented, but the magnitude of the case is unprecedented in the history of our community. That is why I have publicly pledged that if I am elected, I will see to it that the  case is tried only once: it will not come back on appeal.”

If federal prosecutors go to trial first and obtain a conviction and death sentence, El Paso’s next district attorney would have to decide whether to seek the death penalty on state charges. A potential death penalty makes trials and appeals lengthier and more expensive. Here’s what the candidates said when asked if they’d pursue the death penalty if federal prosecutors had already done so.

Roger Montoya: “If the federal authorities insisted on exercising jurisdiction over the case, and if they obtained a death penalty verdict, I probably would not seek a state death sentence. After all, I do not think the Supreme Court would allow us to put a federal needle in one arm, and a state needle in the other arm.”

Rosales: “I think we should spare the victims and first responders from having to relive the trauma on a second trial only to achieve the same results.  I would want to consult with the families first, but I believe one trial resulting in a death sentence is more than sufficient justice for them.  Let them begin the healing process because as long as a case is pending, the wounds remain fresh and the healing process cannot begin.”

James Montoya: “If the federal government goes first, whatever the federal verdict may be – a life sentence or the death penalty – there would be multiple factors to take into account in deciding whether to proceed with a state prosecution. That would be a decision several years down the line. At this point, I would not be inclined to pursue a double death sentence.”

Dykes: “It is not enough for him to receive the death penalty; we need to ensure that he is actually put to death. If there was an assurance he would in fact be executed in a relatively swift manner, I would consider whether or not to pursue the death penalty on the state level as that would save time and resources that would ultimately delay said execution. That being said, as the district attorney I will hold myself accountable to the people I serve. As such, if the scenario you proposed manifested, I would speak with the survivors and the victims’ families to get their input in that regard.”

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Robert Moore

Robert Moore is the founder and CEO of El Paso Matters. He has been a journalist in the Texas Borderlands since 1986. His work has received a number of top journalism honors including the Robert F. Kennedy Journalism Award, Pulitzer Prize finalist and the Benjamin C. Bradlee Editor of the Year Award. Moore’s work has appeared in the Washington Post, Texas Monthly, ProPublica, National Public Radio, The Guardian and other publications. He has been featured as an expert on border issues by CNN, MSNBC, BBC, CBC and PBS.

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