El Paso District Attorney Yvonne Rosales announced her resignation Monday, effective Dec. 14. Hearings on Wednesday and Thursday revealed disturbing allegations of wrongdoing by Rosales and her associates. The key question is what comes next, and answers are murky.
The hearing was technically a status conference in the capital murder case of the man accused of killing 23 people and wounding 22 others in a 2019 mass shooting at an El Paso Walmart. But that crime was rarely discussed. Instead, the focus was on actions by Rosales and her associates, particularly regarding their treatment of the family of Alexander Gerhard Hoffmann Roth, one of those killed at the Walmart.
The background on all of this is complicated, but here’s a summary:
District Judge Sam Medrano, frustrated by what he called “grandstanding” by Rosales, issued a gag order on July 1 that prevented parties to the case – attorneys and potential witnesses – from making comments to the media about the case.
On Aug. 4, an email was sent to 31 El Paso journalists criticizing Medrano and Amanda Enriquez, a former prosecutor on the case who had been interviewed on KVIA-Channel 7 the day before, which was the third anniversary of the mass shooting. The email came from the account of Hoffmann’s widow, Rosa Maria Valdez Garcia, and was signed by their son, also named Alexander. Because the Hoffmann family was listed by the DA as potential witnesses in the case, the email sent to the media could be a violation of the gag order.
But Channel 9-KTSM raised questions about whether the email came from the Hoffmann family. Medrano appointed El Paso attorney Justin Underwood to represent the family as part of an effort to determine whether the gag order was violated. In October, Underwood provided the court with an explosive report that alleged the email was created by Rosales’ personal attorney, Roger Rodriguez. The report said the email was part of a broader campaign to target Rosales’ “enemies.” (El Paso Matters and its founder, Robert Moore, were among the alleged targets in the report.)
Most crucially, the report revealed that the Hoffmann family had recorded three conversations with Rodriguez, where he boasted about having snipers everywhere and vowing that Rosales’ enemies were about to suffer “hits” and “blows.”
Medrano repeatedly tried to schedule hearings on the email, but they were delayed by legal actions by Rosales. He scheduled a hearing for Nov. 30 and ordered Rosales and Assistant DA Curtis Cox, who had been leading the Walmart prosecution, to attend. Cox – who resigned two weeks earlier – showed up to the hearing three hours late, then asserted his Fifth Amendment rights against self-incrimination and refused to answer questions. Rosales didn’t show, so Medrano issued another order for her to appear on Thursday, and she finally did. She also took the Fifth.
Other witnesses testified in the hearing, primarily Thomas Hoffmann, the son of Alexander Hoffmann who recorded Rodriguez. Also, lawyers for the accused gunman in the Walmart case were allowed to read into the record a number of questions that they would have asked Rosales and Cox if they hadn’t asserted their Fifth Amendment rights against self-incrimination.
Here are four key questions about what may lie ahead.
What are the legal risks for Rosales and others?
In short, potentially grave. The testimony and questions entered into the record leveled accusations that Rosales, Cox and Rodriguez engaged in a conspiracy to use the Hoffmann family to discredit “enemies,” including Medrano, the judge in the case, then tried to intimidate the family when they began asking questions.
Among the most serious accusations: the DA’s office sent emails to federal officials that led to the revocation of the Hoffmanns’ credentials needed to cross the border. This was allegedly done to prevent the family in Juarez from entering the United States to testify in hearings scheduled by Medrano. Defense lawyers for the accused Walmart gunman made the allegations in the questions they wanted to ask of Rosales and Cox, but they have not entered the purported emails as evidence.
Underwood has previously said that Valdez, Hoffmann’s widow, was detained for seven hours by U.S. Customs and Border Protection when she tried to cross the border to meet with him in September. Her Sentri pass, which allows easier crossing of the border, was revoked. CBP has declined to comment on her detention and the revocation of her crossing credential.
Thomas Hoffmann’s recordings were turned over to the FBI, Underwood has said, but the agency generally does not discuss whether or not it is investigating potential crimes.
How involved was Rosales?
Evidence of Rosales’ involvement in Rodriguez’s dealings with the Hoffmanns is “circumstantial,” Joe Spencer, one of the attorneys representing the accused gunman, said at the conclusion of Thursday’s hearing. But he said circumstantial evidence can be compelling.
During the hearings this week, Underwood and the defense team repeatedly noted that all 31 recipients of the Aug. 4 email were also on the media distribution list maintained by the District Attorney’s Office. The basis of that claim is an investigation by El Paso Matters, which used public records laws to obtain the DA’s media distribution list. Rosales’ office resisted making the list public until ordered to do so by the Texas Attorney General’s Office.
The Hoffmann family did not have access to email addresses of El Paso journalists, Thomas Hoffmann testified. And Rodriguez and his wife Anne, who allegedly wrote the Aug. 4 email, were not employees of the DA’s office. So someone in the office had to provide them with the media distribution list, Underwood alleged.
In its open records request to the DA’s office, El Paso Matters asked for a list of all people who had access to the distribution list, or were provided the list. The office said they had no responsive records.
Underwood and the defense lawyers also repeatedly pointed out that Rosales allowed Rodriguez to speak to a gathering of victims’ families at a meeting after the July 1 hearing where Medrano issued the gag order. Thomas Hoffmann said he and his mother met Rodriguez for the first time at that meeting, and then Rodriguez began calling them and asking them to meet him at an El Paso hotel.
Thomas Hoffmann testified that Rodriguez repeatedly told him and his mother that he was working on behalf of Rosales. He also said that they began to believe that Rodriguez was a liar, because he repeatedly made promises to help the family with legal issues that he did not keep. Assistant District Attorney Kyle Vance asked Thomas Hoffmann if Rodriguez might have lied about acting on behalf of the DA. Hoffman said no, because Rosales is the person who introduced the family to Rodriguez.
What happens with the Walmart shooting trial?
It’s important to remember that the accused gunman faces two potential trials. One would be in federal court, the other in state court, both in El Paso.
The federal government has accused the alleged gunman of committing hate crimes. Those charges carry a potential death penalty, and federal prosecutors must decide by Jan. 17, 2023, whether they will seek the death penalty if the suspect is convicted. That decision will be made by the U.S. Justice Department, which currently has placed a moratorium on executions of people facing federal death sentences.
President Joe Biden has said he would support legislation to end the federal death penalty. But the Justice Department in September announced it would seek the death penalty in a New York case.
The federal trial is currently scheduled for January 2024.
No trial date has yet been set for the state capital murder charges.
It’s possible that if the accused gunman gets a death sentence on the federal charges, a state trial may never happen.
Who replaces Rosales?
That decision is up to Gov. Greg Abbott, who accepted Rosales’ resignation on Friday. His office hasn’t made any public statements about the process or potential candidates. But Abbott’s prior appointments offer some clues.
The governor also has the authority to appoint district court judges when the person elected to the bench vacates the office. Abbott and his predecessor, Rick Perry, made several appointments to vacant judicial positions in El Paso County. Mostly, they nominated a fellow Republican, even though the elected office holder they’d be replacing was a Democrat.
Rosales, like all El Paso district attorneys before her, was elected as a Democrat.
The name of a potential appointee most prominently mentioned in El Paso legal circles is attorney Bill Hicks. He worked as an assistant district attorney in El Paso from 1998 to 2010, when Perry appointed him to fill a vacancy as judge of the 243rd District Court. He served until 2012, when he ran for the seat as a Republican and received only 35% of the vote against Democrat Luis Aguilar. Hicks has been in private practice since leaving the bench at the end of 2012.
Hicks was in the hallway outside the 409th District Court when Medrano’s hearing ended on Wednesday. When asked by reporters if he was a candidate for the DA appointment, Hicks declined comment.
One other possibility mentioned has been state Rep. Joe Moody, who is a former assistant district attorney and has said he may run for DA in 2024. Moody is a Democrat, which would break from Abbott’s usual appointment practice. But Moody and Abbott share support from several large donors in El Paso’s business community.
But Moody issued a statement Monday that said that wasn’t going to happen.
“I’ve repeatedly heard from El Pasoans that they hope or even expect I’ll be appointed to the role. I’m honored by the trust you have in me, but I’m afraid that isn’t going to happen,” he said. “The reality is that these appointments are partisan, so the governor will select a member of his own party; there’s no chance a Democrat will be chosen.”
Moody said his focus is on the Texas legislative session that begins in just over a month.
“El Paso needs a DA who’s honest, smart, and experienced in policy and management, someone with both big ideas and a firm grasp of the fundamentals of running an office. Until we get to make that choice, I hope that whoever the governor picks will serve professionally and capably,” his statement said.
This story has been updated to include a statement from state Rep. Joe Moody.
Correction: An earlier version of this story incorrectly said that Govs. Rick Perry and Greg Abbott always appointed Republicans to fill El Paso judicial vacancies. Perry appointed Democrats David Chew and Steve Hughes to the 8th Court of Appeals in 2004 and 2014, respectively.