A state trial for the accused gunman in the 2019 El Paso Walmart massacre could be well over two years away after defense lawyers on Monday said prosecutors haven’t correctly turned over documents.

El Paso District Attorney Bill Hicks told Judge Sam Medrano Jr. his office would be ready to try the case against defendant Patrick Crusius by the end of this year. But after hearing from Crusius’ defense lawyers, Medrano said the court will hold another hearing in January to potentially set a trial date, which will give prosecutors more time to turn over documents to the defense. 

El Paso District Attorney Bill Hicks

“We’re turning the discovery over as soon as we get it,” Hicks said during the hearing. “The bulk of our discovery, we anticipate everything being turned over to the defense well before the end of December.”

Crusius’ defense lawyers, however, said it could be another 24 to 27 months before they’re prepared to go to state trial, where Hicks has said he’ll seek the death penalty.

Crusius was sentenced to 90 consecutive life sentences in federal court in July after pleading guilty to hate crimes and weapons charges. He pleaded guilty after the U.S. Justice Department decided not to seek the death penalty in federal court. 

Crusius has admitted in federal court to killing 23 people and wounding 22 others at the Cielo Vista Walmart on Aug. 3, 2019. Just before entering the store, he posted a white supremacist screed only saying he was trying to “stop the Hispanic invasion of Texas.”

He still faces state capital murder charges, which could result in the death penalty.

Joe Spencer, the accused gunman’s lead defense attorney, blamed the delay in the state trial on the District Attorney’s Office. Spencer said there are over a million discovery documents in the case totaling nine million pages packed in dozens of thumb drives and hard drives.  

But some of the files are corrupted and unable to be opened, while many other documents are duplicates of others. A file with documents sent to the defense contained a computer virus that the lawyers spotted, Spencer said. 

And most of the documents sent from prosecutors aren’t “Bates stamped,” which is a process of applying a unique number to every document page so lawyers can identify each one – similar to page numbers in a book. 

Joe Spencer, right, one of the attorneys for the alleged El Paso Walmart shooter, speaks at a hearing in July 2022. (Corrie Boudreaux/El Paso Matters)

“That makes it extremely difficult for us to get a grasp on what we have,” Spencer said. “We have an obligation to be ready. But (prosecutors) have an obligation to produce discovery and to do it timely.”

Hicks told Medrano his office is working through the same problems as the defense to evaluate reams of documents that aren’t conveniently formatted. 

Hicks said he heard about the computer virus that came from files his office sent the defense lawyers, but that he was unaware of his office sending the defense any corrupted files. And Hicks said that prosecutors have not shared discovery documents that are “Bates stamped” in any of the previous murder cases that Spencer has worked on. 

“I’ve done over 100 murder and capital murder cases. And while it’s true we don’t normally get Bates stamped (documents), we have never had a case with close to 10 million pages,” Spencer said after the hearing. Crusius’ case “requires it. That’s why the federal government did it.”

Crusius’ defense lawyers said they’re working to hire an electronic discovery software vendor to take the current discovery documentation they’ve received and “organize it, categorize and index it and get it to us,” Spencer said, adding that that process could take 6 to 9 months. 

“It took approximately 18 months for us to review all of that from the federal government. So you add that, and you’re looking at 24 to 27 months before we can even say we might be ready,” he said. “That doesn’t include our own discovery that we have to do, our own mitigation work that we have to do for the death penalty case.” 

Mitigation refers to research or information about a defendant that’s used to argue against the death penalty in court. 

Hicks has previously said he expected the case to go to trial in 2024 or 2025. 

Separately, Crusius was ordered by a federal court to pay $5.5 million in restitution to the victims of the shooting and their families, according to a joint motion filed on Monday.

Spencer said the discovery process was faster and smoother in the federal court case against Crusius. Discovery in the federal case was streamlined in order “to bring judicial finality to this community and close this case down, and that’s what we should be doing on the state side,” he said.

Diego Mendoza-Moyers is a reporter covering energy and the environment. An El Paso native, he has previously covered business for the San Antonio Express-News and Albany Times Union, and reported for the...