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El Paso District Attorney Yvonne Rosales faces a Dec. 15 hearing to determine whether she should be suspended from her job until a trial that would determine whether she should be removed from office.
The hearing was set on Monday by District Judge Tryon Lewis, who is presiding over the removal case.
In his order, Lewis said the hearing would “determine whether the Respondent/Defendant should be temporarily suspended from office pending trial and, if so, the appointment of another person to perform the duties of the office. The parties should be ready to respond on all issues.”
Also on Monday, El Paso County Jo Anne Bernal filed an amended petition to remove Rosales from office. In the new petition, Bernal asks that Rosales be immediately suspended from office until her removal trial, scheduled for March 13.
“The allegations and issues raised are too serious and potentially detrimental to the community to allow the status quo to remain,” the petition said.
Rosales declined to comment because of pending litigation, said her spokesperson, Paul Ferris. The County Attorney’s Office also said it would not comment because of pending litigation, saying the “documents speak for themselves.”
The amended petition details numerous allegations of failures that led to the release of more than 300 people who were jailed while awaiting trial; dismissals of hundreds of additional cases of people on bond; failure to notify victims that the dismissals meant that bond conditions protecting them from contact by the accused were no longer in place; improper handling of the Walmart mass shooting prosecution; and other actions.
Rosales has engaged in “delay tactics” to thwart an investigation into her handling of the Walmart mass shooting, according to the amended petition.
“Instead, Rosales, rather than expending tax dollars on the prosecution of the alleged Walmart shooter, is expending public funds to thwart the introduction of evidence that may reveal misconduct on her part,” the amended petition states.
The move to oust Rosales began on Aug. 24 when El Paso defense attorney Omar Carmona filed a court petition seeking Rosales’ removal as district attorney, alleging incompetence and official misconduct.
Carmona on Monday said he stands by his original assertion that Rosales was conducting her office with gross incompetence, but it has now evolved into acting unethically, which he said is spelled out in Bernal’s filing.
“It went from incompetence to unethical behavior, but now it’s like criminal behavior and I just think that it’s a real disturbing progression on how this case has kind of developed,” Carmona said.
In her amended petition, Bernal outlines several areas of failures by Rosales and her team. Rosales took office in January 2021.
The petition filed by the county attorney details several instances of alleged incompetence and misconduct. Most of the examples center on the Walmart mass shooting case and dismissal of hundreds of cases for lack of prosecution.
Handling of the Walmart shooting case
Bernal uses Rosales’ handling of the Walmart mass shooting case, which is “El Paso’s most high-profile case,” as an example of ongoing misconduct that is occurring in her office. Twenty-three people were killed and another 22 injured in the Aug. 3, 2019, shooting at the Cielo Vista Walmart.
The accused gunman, Patrick Crusius, faces federal and state charges that carry a potential death penalty. The federal trial is set for January 2024; no trial date has been set for state charges.
Rosales allowed Roger Rodriguez, an attorney and municipal judge who is not an officer of the District Attorney’s Office, to represent her in the Walmart case, according to Bernal’s petition. In one instance, she allowed Rodriguez to address the victims of the case during a meeting in July when a gag order was issued by state District Judge Sam Medrano Jr.
During a July 1 meeting with Walmart victim families, Rosales and other DA staff, Rodriguez identified himself as a judge, claimed that Medrano would be recused from the case, and urged the victims to file complaints against Medrano. Rosales did not correct Rodriguez or disagree during the meeting, according to the court filing.
“By her silence, Rosales left the victims of the Walmart shooting with the impression that Rodriguez was acting on her behalf and with her approval,” the document states.
She also allowed Rodriguez to meet with defense lawyers. Rodriguez has been referred to as Rosales’ “legal adviser.”
The county attorney filing also states Rosales is using “delay tactics” to prevent information from surfacing about allegations that Rodriguez was responsible for sending an email on Aug. 4 to media outlets purporting to be from Tomas Hoffmann, the son of the Alexander Gerhard Hoffmann, who was killed in the Walmart shooting. The email may have been in violation of the gag order issued by Medrano, but a hearing has not yet occurred.
Justin Underwood, an attorney appointed by Medrano to represent the Hoffmann family, filed an ad litem report that includes affidavits, recordings and other evidence that allege Rodriguez was responsible for the email and held himself as an agent of Rosales, according to the county attorney’s removal petition.
“Rosales has repeatedly, at both the trial court and on appeal, fought the introduction of the ad litem report,” the filing states. “As the duly elected District Attorney, she should be held to a higher standard and rather than oppose the introduction of facts, she should be fully and freely explaining the extraordinary circumstances to the public.”
Alleged bad faith by Rosales
Bernal alleges that Rosales also made unspecified false representations to the court to delay proceedings in the removal case.
Rosales failed to notify the court that she would not comply with her representations or provide a reason for not complying, according to the filing.
“This conduct can only be viewed as bad faith by Rosales and a deliberate attempt to delay these proceedings based upon false assertions,” court documents show.
Failure to charge cases in a timely manner
Hundreds of criminal defendants have been released since Rosales took office solely because the district attorney failed to file charges in a timely manner, according to Bernal.
Those releases included184 people in 2021 and 138 so far in 2022 being held in jail on charges including aggravated assault family violence with a weapon, driving while intoxicated charges, failure to register as a sex offender with previous conviction, robbery and injury to a child/elderly/disabled person.
Hundreds of additional cases were dismissed for people arrested and released on bond. Those dismissals also resulted in the end of the suspects’ bond conditions, such as “do not contact” the victim orders, court documents show.
Bernal’s filing alleged that the District Attorney’s Office did not notify alleged victims before dismissals that they would no longer be protected by bond conditions.
The cases were dismissed because the District Attorney’s Office did not file formal charges or seek indictments within the time allowed by state law.
“The dismissal of these cases also increased the risk of harm generally to the health and safety of residents of El Paso County, Texas,” the amended removal petition states. “For example, the dismissal of numerous DWI cases resulted in the termination of bond provisions meant to protect the public’s safety, including the restriction of an arestee’s driving privileges or drug and alcohol testing.”
The petition also alleges that Rosales’ office has filed 60% fewer cases when compared to the prior administration.
Handling of the Gabaldon murder case
The petition also cited the murder charge against Ivan Gabaldon, which was dismissed last year after a judge ruled that the DA’s office had taken “vindictive actions” against him.
Gabaldon was scheduled for trial in November 2021, when Assistant District Attorney Curtis Cox, who was representing the state against Gabaldon, told the court the state was not ready to go to trial.
When defense lawyers said they were ready to go to trial, Cox first said he was prepared to release Gabaldon without bond, then said he would seek to have him reindicted for capital murder and seek the death penalty, according to court filings.
After the state filed a notice seek the death penalty, Gabaldon’s lawyers filed a motion to dismiss based on prosecutorial vindictiveness. The dismissal was granted by the judge in December 2021.
“DA Rosales’s office sought the death penalty solely to penalize the defendant for exercising his constitutional right a trial,” Bernal’s petition states.
Despite the judge’s finding that Cox acted with vindictiveness, Rosales took no steps to hold him accountable, Bernal’s filing said.
“Rather than take remedial or mitigation action against Cox, she put him in charge of the Walmart shooting case, El Paso’s most high-profile criminal case,” the amended removal petition said.
Carmona, who brought the original removal petition against Rosales, represented Gabaldon in the murder trial.
Recent developments in removal case
Bernal, who is authorized by state law to prosecute the petition, announced on Nov. 1 that she would do so. The removal trial is scheduled for March.
The three lawyers who had been representing Rosales in the removal case filed a motion on Friday to be taken off the case. It’s not clear who is representing her in the removal, though El Paso attorney Araceli Solis filed a motion on Rosales’ behalf Friday in a case before the 8th Court of Appeals in El Paso.
In a separate order Monday, Lewis set a Nov. 28 hearing on the request from Rosales’ lawyers to be removed from the case. He ordered Rosales to appear at that hearing.
In a third order on Monday, Lewis set a jury trial for the removal case for March 13. He also set a number of other deadlines for parties in the case to file motions and other documents ahead of the trial
If Rosales is suspended, Lewis would appoint a temporary replacement. Rosales would not be paid during the suspension, but a bond would be posted that would allow her to recover back pay if she is not eventually removed from office.
Disclosure: County Attorney Jo Anne Bernal made financial contributions to El Paso Matters in November 2021 and March 2022.