4:36 p.m. Sept. 27: This story was updated with details from the recusal hearing.
A Bexar County administrative judge ruled Tuesday that the Walmart shooting case can remain in 409th District Judge Sam Medrano Jr.’s court after the district attorney’s office sought to have him removed from the case.
Judge Sid Harle of the 4th Administrative Judicial Region of Texas made the ruling from the bench Tuesday after hearing four hours of testimony about Medrano’s alleged hostility and bias against El Paso District Attorney Yvonne Rosales.
“Under the state of the evidence and the arguments, I’m going to deny the motion to recuse,” Harle said, adding that most of the matters brought up during the testimony “do not rise to the level of a disqualification or a recusal under that high threshold.”
The state Walmart shooting case has been on pause since prosecutors filed their recusal motion on Sept. 9. As a result of Tuesday’s ruling, all pending motions in the case can now be heard at a future hearing date.
Much of the testimony before Harle focused on a July 1 status hearing, during which Medrano issued a gag order banning all parties in the case — the judge, prosecutors, defense attorneys and witnesses, which include some of the victims and their family — from speaking publicly.
Assistant District Attorney Curtis Cox said that Medrano displayed “personal animus and political opposition” to the district attorney, in addition to “disparate treatment on the basis of gender.”
Medrano was not present Tuesday.
Mark Stevens, one of the attorneys representing the accused Walmart shooter, charged the DA’s office with having “cobbled together four non-events, none of which would justify recusal — singly or in combination. And today, they continued to cobble and cobble and cobble.”
Stevens referred to the gag order and a potential violation of that order, as well as the judge’s behavior on July 1 and the judge’s previous request that the DA’s office change the prosecutors who were assigned to his court.
Defense attorneys, in their questioning and in court filings, assert that Rosales and her staff sought the recusal in an attempt to delay and “derail” a Sept. 13 hearing to prevent “damaging information” from coming out. That hearing was intended to determine whether family members of a shooting victim violated the gag order through emails they purportedly sent to local media, one of which criticized Medrano.
The DA’s office, Stevens, said, “was desperate to avoid that information from coming out.”
Roger Rodriguez and his role
Some of that information, however, was revealed Tuesday during Stevens’ questioning of Rosales and through the testimony of John Briggs, a longtime prosecutor assigned to the Walmart case who was fired Aug. 21.
Briggs testified that immediately after the July 1 hearing, Roger Rodriguez, a private attorney and a Vinton municipal judge, told the shooting victims and their families that Medrano’s gag order was “unethical and inappropriate” and that they “we’re going to get that judge recused.” Rodriguez further told the victims that he had gotten at least 12 judges recused, and encouraged them to file grievances with the Texas Commission on Judicial Conduct, Briggs added.
The district attorney, Briggs said, did not object to any of this. Rather, he said he was the one to interrupt Rodriguez and tell the victims that “we would never get the judge recused based on what had happened up there (in the courtroom), and that we weren’t going to run around filing frivolous complaints.”
Rosales testified that Rodriguez “was only correcting” Briggs’ assertion that “nothing could be done to remove the judge” and that the victims should “not poke the bear.” She said she had no recollection of Rodriguez saying that the gag order was unethical, calling it “such a bold statement” that she would clearly remember it.
Why Rodriguez was present at the July hearing was not immediately clear from the testimony Tuesday. Rodriguez is not employed by the DA’s office.
Briggs described the municipal judge as “Ms. Rosales’ legal advisor.” Rosales testified that Rodriguez is representing her in a federal lawsuit that she said has been filed against the state’s district attorneys and the governor.
Stevens repeatedly asked Rosales whether her office had shared evidence with Rodriguez about the Walmart case and whether Rodriguez had a hand in the recusal motion. She refuted both lines of questioning.
Rodriguez was not called as a witness and he did not appear on camera during the Zoom hearing. At one point, however, defense attorney Felix Valenzuela noted that he believed he had heard Rodriguez’s voice, asking Cox whether the private attorney was in fact present. Cox said Rodriguez was not.
Source of Hoffmann family emails
Briggs also testified that four days before he was fired, he informed Cox of his belief that Rodriguez was behind the emails that the children and widow of shooting victim Alexander Gerhard Hoffmann Roth sent to media outlets in the wake of the third anniversary of the shooting.
“I told him the emails read like they came from our office and based on the content of those emails that Roger Rodriguez was the author of those emails,” Briggs testified.
Rosales testified that Briggs was terminated as a result of his poor performance handling the Walmart shooting case, and she blamed him for not making any filings since he was assigned to the case.
Medrano appointed defense attorney Justin Underwood to represent the Hoffmann family at the Sept. 13 hearing to determine whether their emails violated the gag order. In court filings, prosecutors accuse the judge of using Underwood, who they call a “known critic” of Rosales, to conduct “an extrajudicial investigation” into the emails. Rosales has also accused Underwood of being part of a conspiracy to remove her from office.
Prosecutors previously told Medrano they had been unable to contact the family, who live in Ciudad Juárez.
Stevens, however, during his questioning of the district attorney, indicated that Rodriguez met with Hoffmann’s son and his widow on Aug. 3 at El Paso’s Stanton House hotel. That followed two phone calls Rodriguez made to them, Stevens said.
Rosales denied any knowledge of these calls or that meeting. “I don’t even know if those conversations even took place,” she said.
Underwood had subpoenaed Briggs, Rosales and Rodriguez to compel their testimony at the Sept. 13 hearing.
Rosa Maria Valdez Garcia, the victim’s widow, was briefly detained at the border ahead of that hearing, Cox revealed Tuesday, saying she is under investigation for fraud by the Mexican government, the U.S. Department of State and the state of Texas.
Underwood, speaking on behalf of Valdez Garcia after Tuesday’s hearing, told El Paso Matters he was unaware of any charges against his client, and said he is the only lawyer currently representing the Hoffmann family.
Stevens, in his closing argument, charged Cox with failing to present any evidence to demonstrate that Underwood is an “agent” of the judge.
“There’s been no hearing yet,” Stevens said. “How do we know what Underwood is going to do? How do we know what Judge Medrano is going to allow?”
As of Tuesday afternoon, Medrano had not set any future hearing dates in the case.
Reporter Danielle Prokop contributed to this story.
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.”