No legal or factual basis exists to remove the judge presiding over the Walmart shooting case, according to the defense attorneys who called the prosecutors’ objections to the judge a smokescreen to prevent “damaging evidence” from being presented against El Paso District Attorney Yvonne Rosales.

A motion filed on Monday by Patrick Crusius’ lawyers states that 409th District Court Judge Sam Medrano Jr. should remain as the presiding judge. The motion further states that the DA’s reason for Medrano’s recusal is merely an attempt to stop a status hearing originally scheduled for Sept. 13 from taking place.

The motion states that if that hearing is ever held, evidence will show that Rosales, through a private attorney, knowingly asked families of Walmart victims to violate a gag order imposed by Medrano.

The DA’s office filed its recusal motion on Sept. 9, just days before the status hearing was to take place. The rescheduling of the Sept. 13 status hearing is dependent on whether an out-of-town judge lets Medrano continue as the presiding judge.  

On Monday, San Antonio-based Judge Sid Harle, the presiding judge for the 4th Administrative Judicial Region, was set to have a hearing on the motion to recuse Medrano. Assistant District Attorney Curtis Cox asked for a continuance because the District Attorney’s Office was not ready to respond to the defense attorneys.  

The recusal hearing is now set for 8 a.m. Tuesday via Zoom.

In its motion as part of the recusal hearing, defense lawyers allege that El Paso attorney Roger Rodriguez, at the invitation of Rosales, appeared in a private meeting with the families of some of the Walmart victims and members of the District Attorney’s Office after a July 1 hearing before Medrano.

In that meeting, the motion written by defense attorney Mark Stevens states, Rodriguez “began stoking the crowd, getting them angry, wanting them to turn on the Court.” Rodriguez told the families he was going to recuse the judge, the motion states.

After hearing defense attorneys talk about why the DA filed the motion to recuse, Harle gave the DA’s office a week to collect any witnesses they need to address the allegations.

“We’re going to finish it at one time,” Harle said. “We’re not going to piecemeal this. We’re going to start and we’re gonna go straight through.”

Monday’s hearing was supposed to address the prosecutors’ request to recuse Medrano due to his alleged “personal animus” against Rosales. Medrano was assigned to preside over the case against Crusius, the gunman accused of killing 23 people on Aug. 3, 2019, at the Cielo Vista Walmart. 

The DA motion to recuse claims that a July 1 hearing – in which the judge issued a gag order that banned attorneys on both sides, law enforcement or witnesses from speaking to the media about the case – was meant to “embarrass and demean” Rosales. It also claims Medrano orchestrated an “extrajudicial investigation” as part of a politically motivated conspiracy to remove Rosales from office.

Medrano called the July 1 hearing after Rosales sent a press release in June asking the court to set a trial date for Crusius. In the press release, Rosales stated that her office would be ready for trial early next year. At that hearing, Medrano abruptly told Rosales that setting a trial date was not feasible because her office had not filed a single motion or pleading in the case.

During Monday’s hearing, Stevens told Harle that there was no need to postpone the day’s hearing because “representatives of the DA’s office” have been seeking Medrano’s removal  since July 1. 

“This is not something new to them,” Stevens said. “This is something they’ve been planning for at least two-and-a-half months.”

Cox responded: “If we’re going to go into that sort of evidence, I’m going to need time to get rebuttal witnesses.”

The July 1 meeting

In a meeting with Rosales and other assistant district attorneys, Rodriguez, who is a city of Vinton municipal court judge, reportedly encouraged family members to file complaints against Medrano, court documents state.

The documents also state Rodriguez reportedly said, “We are going to get the Judge recused,” and that he had recused at least a dozen judges. Rodriguez previously represented unspecified people in the District Attorney’s Office in a complaint with the Texas Ethics Commission.

Stevens also wrote that on July 1, Rosales walked into the meeting with the Walmart families with Rodriguez and his wife by her side. Then-prosecutor John Briggs and Assistant District Attorney Michele Hill were also in the room during this meeting.

Briggs protested Roriguez’s suggestions to go against the judge, Stevens wrote, and Rodriguez disagreed in front of the participants. 

“DA Rosales was standing there when this was all happening, and, according to Mr. Briggs, agreed by her silence,” Stevens wrote. 

In various court filings, Rosales has maintained that there is an ongoing conspiracy to oust her from office. 

Last week in Crusius’ federal case, Rosales included Joe Spencer — a defense attorney appointed to represent Crusius — as part of an alleged conspiracy to remove her from office, according to a letter to the federal judge overseeing the parallel federal case. 

In previous court filings, attorneys for Rosales claim the conspiracy is spearheaded by defense attorneys Omar Carmona and Justin Underwood, El Paso County Attorney Jo Anne Bernal and El Paso Matters CEO Robert Moore.

Medrano’s appointment of Underwood to represent a victim’s family, the letter said, was an effort to “harass (Rosales) and unlawfully issue subpoenas for me and other unrelated parties.” Medrano appointed Underwood to help the family of one of the victims that may have violated the July 1 gag order by sending a press release talking about the Crusius case in mid-August.

Cox said the defense’s motion filed Monday amounted to an acknowledgment of the basis of his complaint: that the Sept. 13 status hearing was to talk about the gag order, not the status of the Crusius trial. 

“I found it unexpected that the defense would admit to the extrajudicial investigation,” Cox told Harle.

Stevens disagreed with that characterization, talking over Cox. 

“No we didn’t. I’m going to interrupt you there,” he said. “We did not make any admission of an extrajudicial statement, so you shouldn’t be telling the judge that, sir.” 

The Sept. 27 hearing will be broadcast on Harle’s channel on YouTube.

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...