10:25 a.m., Sept. 17: This story was updated to reflect the hearing date to determine whether federal prosecutors will seek the death penalty.

The “conspiracy” to remove El Paso’s district attorney from office stems from her refusal to drop the death penalty against the alleged Walmart mass shooting gunman, according to a recent court filing in the federal case.

The filing is a Sept. 10 letter Rosales sent to U.S. District Judge David Guaderrama, Gov. Greg Abbott and U.S. Attorney General Merrick Garland, among others, in which she said she may seek help from the Texas Attorney General to prosecute the state case.

Rosales’ letter, which was first reported by KVIA, charges El Paso criminal defense attorney Joe Spencer with attempting to “pit the state case against the federal case” in an attempt to delay both cases, since he has a staff of 16 people “receiving taxpayer funds with no clear accountability.”

“In other words, the financial interests of Joe Spencer and his legal team have a clear conflict with the defendant’s ability to have his case heard pursuant to the 6th Amendment speedy trial issue,” the letter continued.

“There is even a conspiracy to have me removed from office after being duly elected, all because I refuse defense counsel Joe Spencer’s demands that I remove the death penalty,” the letter reads.

Spencer was appointed to represent alleged gunman Patrick Crusius in both the state and federal cases. Crusius faces 23 state capital murder charges and nearly 100 federal charges, including hate crimes resulting in death.

In June 2020, the defense team and federal prosecutors agreed to drop speedy trial provisions due to the volume of evidence, which numbers in the “thousands of documents.” The federal speedy trial law requires someone to be tried within 70 days of being indicted, or formally charged with a crime, unless the case is “complex and unusual.”

Spencer has not responded to a request for comment. Spencer, just like all prosecutors, defense lawyers, law enforcement officers and witnesses in this case, is under a gag order that prevents them from discussing the case with the media.

Joe Spencer, lead defense attorney for the alleged El Paso Walmart shooter, speaks at a hearing in the case on July 1. (Corrie Boudreaux/El Paso Matters)

Guaderrama has set the federal trial for January 2024. On Friday, federal prosecutors agreed to a Jan. 17, 2023, hearing to determine whether they will seek the death penalty against Crusius, according to a court filing.

Rosales is seeking the death penalty in the state case. No date has been set in that case, which is currently presided over by 409th District Judge Sam Medrano Jr., who Rosales is seeking to have recused due to his “personal animus” against her.

She attached her recusal motion to the letter “to memorialize the severe retaliation we are receiving to prevent us from prosecuting this case,” she wrote.

The Department of Justice declined to comment on the DA’s letter.

The Sept. 10 letter filed in federal court is the first time that Rosales has connected Spencer to what she alleges is a “conspiracy” to remove her from office, which she says is being orchestrated by two defense attorneys, Omar Carmona and Justin Underwood; El Paso County Attorney Jo Anne Bernal; and El Paso Matters CEO Robert Moore.

Carmona filed a petition to remove Rosales from office on Aug. 24, and this week, an Odessa visiting judge ruled that the petition can proceed.

In the federal court letter, Rosales accuses Medrano of appointing Underwood to represent a victim’s family in the state case to “harass me and unlawfully issue subpoenas for me and other unrelated parties.” 

She goes on to accuse Underwood of calling her staff on Aug. 17 and making “a series of threats that are potentially criminal in nature.”

“I’m forced to take every threat seriously,” she wrote, citing “bomb threats our office had previously received.” 

The only recent bomb threat agains the El Paso County Courthouse was made around Aug. 1, according to media reports and communication from the county judge’s staff.

The El Paso County Sheriff’s Office, which oversees security at the county courthouse, does not have any records of complaints filed against Underwood, according to a response for an El Paso Matters public records request. The sheriff’s office also had no criminal complaints or incident reports at the district attorney’s office address from January 2020 to Sept. 7.

“In light of the extreme political nature and recent focus of the case, I am considering asking for the assistance of the Attorney General of Texas in the prosecution and handling of this case,” Rosales wrote.

She concluded the letter by expressing admiration for the federal judge: “Finally, I would want all parties to know that my administration has always and will always continue to hold the Honorable Judge Guaderrama in the highest regards.”

Guaderrama’s calendar shows no hearings in the Walmart shooting case for at least the next 30 days.

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.”

Danielle Prokop is a climate change and environment reporter with El Paso Matters. She’s covered climate, local government and community at the Scottsbluff Star-Herald in Nebraska and the Santa Fe New...