A number of Mexican flags were left at a makeshift memorial near the Cielo Vista Walmart in tribute to the citizens of that country killed and injured in the Aug. 3, 2019, attack. (Robert Moore/El Paso Matters)

The federal and state cases against the gunman accused of killing 23 people and injuring dozens more at an El Paso Walmart face ongoing delays with no trial dates set in either jurisdiction.

At the state level, the suspected shooter, Patrick Crusius, faces 23 charges — one count of capital murder of multiple persons and 22 charges of aggravated assault with a deadly weapon, according to court documents. Prosecutors said Crusius drove from the Dallas area to El Paso to commit what is being called a racially motivated attack

El Paso County District Attorney Yvonne Rosales, who took office in January, said during a press conference last week that her office cannot proceed with the trial “anytime soon.”

Rosales declined an interview request with El Paso Matters and did not answer questions from the media during the press conference. She only offered that the trial would likely last several weeks and that her office currently is only proceeding with small misdemeanor cases that take a short time to complete with a jury.

“A case of this magnitude is going to exceed well over four to six weeks,” Rosales said.

District Attorney Yvonne Rosales gave a brief statement to the media last week about the status of the Walmart mass shooting case, but refused to take questions. (Elida S. Perez/El Paso Matters)

Rosales said her office is seeking the death penalty, which her predecessor, Jaime Esparza, also sought. The district attorney will also keep the trial in El Paso County, she said. 

Questions about staffing

It is unclear which attorneys will be prosecuting the case after about 50 employees, including experienced prosecutors, resigned or were let go when she took office. She also requested that the remaining 150 employees of the office reapply for their jobs. The attorneys who were handling the prosecution in the Walmart case were either fired or chose not to reapply for their jobs.

The 34th Judicial District Attorney’s office has about 90 attorneys who prosecute crimes in El Paso, Hudspeth and Culberson counties.

In an April interview with KFOX14, Rosales said she appointed two of the new chiefs in the homicide unit who were supervisors during Esparza’s administration to the case.

“I felt that they had the most experience, even more so than the attorneys that were previously handling the case,” she said. “Some of the attorneys that were actually on that case were basically in middle school, elementary school, compared to the attorneys that I presently have working on this case. The experience level that I have, with this new team, it far exceeds the prior experience that was working on it.”

Rosales is also planning to hire three unlicensed law school graduates as assistant district attorneys who will practice under the supervision of experienced attorneys. She requested an opinion from Texas Attorney General Ken Paxton on whether that is legally permissible.

Rosales did not respond to El Paso Matters questions about staffing levels in her office.

Esparza declined to comment for this story because he said he has applied for the position of U.S. Attorney of the Western District of Texas, whose office is prosecuting the case against the alleged shooter at the federal level.

Prosecution at the federal level

A hearing scheduled in federal court for Tuesday, the two-year anniversary of the mass shooting, was postponed until November. Court documents show the postponement was requested, in part, because of a backlog of criminal and jury trials caused by the COVID-19 pandemic.

The case is set for a docket call on Nov. 18, when a hearing schedule likely will be discussed. 

Court documents show the prosecution and defense also requested a 90-day continuance to allow for more time to investigate and prepare due to the complexity of the trial.

“Both parties agreed that the interest of justice outweigh the interest of (the) defendant and the public in a speedy trial,” the document states.

Ashley Hoff, the U.S. attorney prosecuting the case, was not available for an interview. Officials said Hoff will not be available for interviews while the case is ongoing. 

The alleged mass shooter faces 90 federal charges, including 23 counts of hate crimes resulting in death, 23 counts of use of a firearm to commit murder during and in relation to a crime of violence, 22 counts of hate crimes involving an attempt to kill, and 22 counts of use of a firearm during and in relation to a crime of violence.

Federal death penalty questions

Rosales said her office will be seeking the death penalty at the state level.

But at the federal level, the potential for seeking a death sentence is less certain. In July, Attorney General Attorney Merrick B. Garland imposed a moratorium on federal executions pending a review of the Department of Justice’s policies and procedures. 

The Department of Justice’s review of policies comes after former President Donald Trump’s administration made a series of changes to capital case policies and procedures.

The changes led to the first federal executions in nearly two decades between July 2020 and January 2021, and included a new protocol for administering lethal injections at the federal Bureau of Prisons using the drug pentobarbital, according to Garland’s memorandum.

No federal executions will be scheduled while the reviews are pending.

Officials with the U.S. Attorney’s Office for the Western District of Texas said in an emailed statement to El Paso Matters that they do not know how long the review will take, or how it will impact the case against the alleged gunman.

Cover photo: A makeshift memorial to the victims of the Aug. 3, 2019, mass shooting began within hours behind the Cielo Vista Walmart. (Robert Moore/El Paso Matters)

Elida S. Perez is a senior reporter for El Paso Matters. Her experience includes work as city government watchdog reporter for the El Paso Times, investigative reporter for El Paso Newspaper Tree and communities...