Any state court action in the 2019 Walmart mass shooting case is on hold until the issue of the judge presiding over the case is sorted out later this month.

A visiting judge will decide whether to remove 409th District Judge Sam Medrano Jr. from the case after hearing arguments from state prosecutors at a Sept. 19 hearing.

The El Paso District Attorney’s Office is seeking to have Medrano removed due to his “personal animus against DA (Yvonne) Rosales,” according to a recusal motion filed Friday.

Medrano had not recused himself from the case as of Monday afternoon, according to court records.

Earlier that day, Stephen Ables, the presiding judge of the 6th Administrative Judicial Region, assigned Judge Sid Harle to hear the prosecutors’ recusal motion. The Kerrville-based 6th region consists of 24 counties, including El Paso. Harle is the presiding judge of the San Antonio-based 4th Administrative Judicial Region and is a former Bexar County district court judge.

It is “quite rare” for prosecutors to attempt to remove a judge, said Geoffrey Corn, a criminal law professor at Texas Tech University.

It’s even more uncommon for removal requests to be granted — regardless of whether they are filed by the state or by the defense, Corn said. Parties have to prove that a reasonable observer would question the judge’s ability to be impartial, which is difficult to overcome.

“Judges carry a strong presumption of impartiality,” Corn said. “It has to be more than ‘the judge seems not to like us,’ or ‘our sense is that the judge was trying to embarrass us because there was media in the court.’”

Assistant District Attorney Curtis Cox alleges in the recusal motion that Medrano sought to “embarrass and demean” Rosales at a July 1 hearing, during which the judge issued a gag order on account of statements Rosales made to local media about her preferred trial timeline.

“If I were a betting man, I would say that the judge that is going to decide this is going to conclude that the burden has not been satisfied,” Corn said of the recusal effort in the case.

This is not the first time that prosecutors have asked Medrano to step down from a high-profile case.

In December 2013, then-District Attorney Jaime Esparza asked Medrano to recuse himself from Daniel Villegas’ third capital murder trial. Villegas was convicted in 1995 after a mistrial the prior year. The Texas Court of Criminal Appeals ordered the case be retried in 2013 after finding that Villegas received ineffective assistance of counsel during his second trial.

Prosecutors said Medrano, in his review of Villegas’ petition for a new trial, made extensive findings against the state, including that the second trial was unfair due to “numerous and inexcusable mistakes and omissions,” according to the motion to recuse.

Ables denied that motion in January 2014, writing that “there is no legal or factual basis” to remove Medrano. Villegas was later acquitted.

A fourth subpoena 

Medrano on Monday canceled a status hearing in the Walmart case that was set for Tuesday.

Before the cancellation, Cox, the assistant district attorney who requested the recusal, filed a subpoena to compel defense attorney Justin Underwood to testify on Tuesday.

The subpoena lists 10 bullet points of documents that Cox required Underwood to bring to the hearing, most of which relate to Underwood’s representation of the family of Alexander Gerhard Hoffmann Roth, one of the 23 people killed in the Aug. 3, 2019, shooting. 

Medrano appointed Underwood to represent the family after a possible gag order violation stemming from an email the family purportedly sent to local media castigating a former prosecutor and the judge.

Prosecutors alleged in their recusal motion that Underwood is undertaking an “extrajudicial investigation” into the DA’s office and that Medrano “himself set in motion that extrajudicial investigation.”

Monday’s subpoena was the fourth subpoena filed by the parties in the last week, and comes after Underwood subpoenaed the DA, former prosecutor John Briggs and El Paso attorney Rogerio “Roger” Rodriguez.

This latest subpoena sought all written communication between Underwood, his staff and Medrano regarding Underwood’s representation of the Hoffmann family; all communications between Underwood and the family that do not consist of legal advice, and phone records between the attorney and family.

Cox’s subpoena also includes communications between Underwood and the defense attorneys representing the alleged gunman, in addition to Omar Carmona, who has no connection to the Walmart case.

Carmona is the defense attorney who filed a petition to remove Rosales from office last month due to her alleged incompetence and misconduct. On Monday, the judge assigned to oversee the petition case threw out nearly all of the filings, as he has not yet decided whether to let the removal case proceed.

Disclosure: In a Sept. 3 court filing responding to a petition to remove District Attorney Yvonne Rosales from office, the district attorney alleged that El Paso Matters and its CEO, Robert Moore, are part of a “political conspiracy” to oust her. Moore said the filing is an attempt by Rosales “to use the courts to intimidate and suppress a news organization whose coverage she doesn’t like.”