The state judge presiding over the prosecution of the man accused of murdering 23 people at an El Paso Walmart in 2019 excoriated District Attorney Yvonne Rosales on Friday for making public comments about the case while her office has done little to prepare for trial.

A clearly angry 409th District Judge Sam Medrano cited a press release Rosales issued earlier this week announcing her intention to have the case tried next summer in his court. He issued a gag order on Friday preventing prosecutors, defense lawyers, law enforcement officers and witnesses from discussing the case with the media.

“The grandstanding ends today,” Medrano said at the conclusion of a 20-minute hearing where he repeatedly criticized Rosales before reporters, attorneys and shooting victims’ families who packed the courtroom. He made it clear his complaints were directed at Rosales.

Medrano also blasted Rosales for suggesting she’d be ready for trial in less than a year. He said her office had not made a single filing in the case since she assumed office in January 2021.

“Not one one pleading, not one motion, not one request, not one business record, not one proposed jury questionnaire, not one subpeona duces tecum, not one witness list, not one expert witness list, has been filed by your office,” Medrano said.

When Rosales maintained that she had filed some documents, the judge shot back: “If they were filed, they were filed late yesterday, because I checked the file — not one,” he said.

Joe Spencer, one of the attorneys representing the alleged gunman, also told the judge he had not seen any filings from the prosecution for nearly two years. Rosales has been in office for roughly 18 months.

Spencer and Medrano said that Rosales’ public comments on the case could impact the defendant’s right to a fair trial, and make it difficult to empanel a jury in El Paso.

Medrano is the latest judge to criticize Rosales or her office over their handling of criminal cases.

The court process for a massacre

Rosales, in a June 27 statement, said she hoped the state capital murder trial against Patrick Crusius would take place in summer 2023.

Crusius, then 21, of Allen, Texas, was arrested shortly after the Aug. 3, 2019, shooting at the Cielo Vista Walmart that killed 23 and wounded 22 others. Prosecutors allege that shortly before the shooting, he posted an online screed saying he had driven to El Paso from North Texas to carry out an attack to stem a “Hispanic invasion.”

He has been held in the El Paso County Jail since his arrest, facing both federal and state charges that carry a potential death penalty. He was not present at Friday’s hearing.

Federal prosecutors haven’t decided whether to seek the death penalty, but Rosales and her predecessor, Jaime Esparza, both said they would seek Crusius’ execution if he was convicted on state charges.

Rosales’ statement came three days after U.S. District Judge David Guaderrama, who is presiding over the federal case, set a trial date for Jan. 8, 2024. Prosecutors had asked for the federal trial to begin in June 2023, and Crusius’ lawyers had asked for March 2025.

“I commend Judge Guaderrama for setting the case for trial in a timeframe that will allow the U.S. Attorney’s Office to make a final determination whether they will seek the death penalty against Patrick Crusius. The District Attorney’s Office will continue to seek the death penalty and as such, we hope to have our case proceed to trial by summer of 2023,” the statement read.

The decision to set a trial date rests with the judge and is supposed to involve discussion with both the prosecutors and the defense attorneys.

Although Rosales told Medrano she “did indicate” that process to the media, her press statement made no mention of the defense attorneys or the judge.

When Medrano asked Rosales why she put out the statement, she deflected.

“I don’t know what the media put out, your honor. … I did clearly inform them that we would approach opposing counsel and this court” about setting a trial date, she said, emphasizing that her statement indicated that she “hoped” for a date next summer.

The defense, Medrano noted in court, has not “gone to the media” to publicize their trial date preferences.

Rosales told Medrano that she preferred a state trial setting ahead of the federal case because of the death penalty. 

“Our goal was to to have this case scheduled before since we are seeking the death penalty, and the federal court is not seeking the death penalty at this point in time,” she said.

Any prosecutorial actions that violate a defendant’s due process rights put the case at risk of a retrial — prolonging an already difficult process for victims’ family members, Spencer said during Friday’s hearing.

“The tenets of due process are at risk in this case,” Spencer said. “And this case will be tried over and over again if not done properly.”

Medrano said he issued the gag order to protect the case and ensure a fair trial. He said it’s the first such order that he’s issued in his 26 years on the bench.

The judge did not say when he’d set a trial date for the state charges, though he said he would not interfere with Guaderrama’s federal trial date in January 2024. Spencer said during the hearing that defense lawyers couldn’t prepare simultaneously for state and federal trials in the next 18 months.

Previous judicial criticism of Rosales

Medrano is at least the fourth judge in recent months to criticize Rosales or her office.

In December, 210th District Judge Alyssa Perez dismissed a capital murder charge after finding that the District Attorney’s Office had acted with prosecutorial vindictiveness in suddenly seeking the death penalty against Ivan Gabaldon after admitting prosecutors had mishandled the case. 

In March, Jail Magistrate Judge Humberto Acosta sent an email to Rosales critical of repeated instances in which he had to release suspects from jail because her office took too long to decide whether to seek an indictment. Acosta copied prosecutors, police officers and other judges on the email.

“Prosecutorial decision making of detained individuals is not being prioritized in your office,” Acosta wrote in the email, which El Paso Matters obtained under the Texas Public Information Act.

In May, recently retired Jail Magistrate Judge Penny Hamilton similarly criticized Rosales for taking too long to make decisions on indictments. Hamilton also took aim at the sharp drop in domestic violence prosecutions during Rosales’ tenure, which Hamilton blamed on a lack of staff.

Medrano revealed Friday what he called “the worst kept secret” in El Paso’s legal community — that Rosales is “actively seeking, interviewing and attempting to hire out-of-town lawyers that will be prosecuting this case,” he said.

When he asked whether that process had been completed, she acknowledged that it hadn’t. 
That prompted another rebuke from the judge for Rosales’ decision to publicly seek a summer 2023 trial when some attorneys for the case had yet to be hired “and then have not looked at one piece of the evidence in this case.”