Judge Medrano continues to hear allegations of prosecutorial misconduct in the Walmart case

El Paso District Attorney Bill Hicks declared day two a “good day for the state” after a break in a hearing on allegations of prosecutorial misconduct.

“I think it was a good day for the state,” Hicks said after the hearing. “I think it went well.”

Hicks, who is looking to retain the seat in the Nov. 5 general election, then encouraged El Pasoans to vote. Hicks didn’t ask El Pasoans to vote for him, he just asked them to vote.

Hicks’ comments come after two contentious days of testimony in which Hicks was accused of ignoring concerns his office illegally obtained and listening to private jailhouse conversations between the shooter, 26-year-old Patrick Crucius, and his lawyers. The defense team has argued that these conversations are protected by client-attorney privilege laws.

Lead attorney Joe Spencer declined to comment, citing a silence order issued in the case that prevents attorneys, prosecutors and witnesses from speaking publicly about the case.

“We have a gag order in place, we can’t comment,” Spencer said. “And since we don’t do politics, I can’t comment on that.”

The second day of the hearing featured a strong defense by DA staff who testified that they had done nothing illegal with recordings of jailhouse conversations or visitor logs about the gunman being held at the downtown El Paso County Jail.

Judge Sam Medrano made no ruling Friday, Nov. 1, after more than eight hours of testimony heard over two days regarding allegations that the district attorney’s office staff illegally listened to phone calls and failed to deliver important evidence to attorneys to hand over.

More: Day 2 starts with the El Paso Walmart shooting over alleged misconduct: live updates

Hicks has repeatedly denied that his office committed any wrongdoing in the case.

The hearing took place on Thursday, October 31 and Friday, November 1 in the 409th District Court of the Enrique Moreno County Courthouse in downtown El Paso.

Six witnesses took the stand during the hearing, but more than five witnesses subpoenaed by attorneys are still expected to testify. Medrano scheduled the hearing to resume Dec. 11.

While testimony focused on the prosecution’s handling of evidence, it remains unknown whether prosecutors’ actions violated the shooter’s constitutional rights and whether the death penalty will remain on the table as a possible punishment.

The gunman is charged with one count of murder of multiple persons and 22 counts of aggravated assault with a deadly weapon in the racially motivated mass shooting of August 3, 2019, which left 23 people dead and dozens of others injured. Hicks is seeking the death penalty.

Legality of Prosecutors Listening to Jail Phone Calls

Prominent prosecutor John Briggs, who has played a key role under three different district attorneys in El Paso, disputed defense claims that jailhouse phone calls were legally protected under client-attorney privilege laws.

Briggs was questioned by Spencer, with the exchange between the two El Paso legal heavyweights at times hostile as the men continued to challenge each other’s opinions during Briggs’ testimony.

Spencer asked Briggs if he believed it wouldn’t be a violation of his client’s rights for prosecutors to listen to the conversations.

“If someone is in jail, the case law is very clear,” Briggs argued. “Their right to privacy doesn’t actually exist and telephone conversations coming from prison are recorded and everyone knows that. At the beginning of the telephone conversation it even says: ‘This telephone conversation is being recorded.’

“It’s being recorded, which means that, as I see it, I don’t know why an attorney would speak to a client on a phone call that’s being recorded in the first place and expect him or her to have a right to privacy in that conversation .

Briggs argued that prosecutors had every legal right to listen to the conversations of the shooter and his attorneys.

“I understand attorney-client privilege and all that stuff, but the point is that you had that conversation in a third-person capacity, you’re waiving that attorney-client privilege,” Briggs said. “If that phone call is recorded, that means I can listen to it and you shouldn’t expect to have any privacy in that phone call… So do I have a right to listen to that? Yes.”

More: Key hearing on prosecutorial misconduct begins in Walmart shooting case: Live updates

Briggs said it’s “extremely rare” that he has to listen to jail calls, and for the most part he doesn’t listen to them.

“It may be constitutional, but it’s not Christian,” Briggs said of listening to jailhouse phone calls.

Spencer responded back that the defendant and his attorneys have no discretion or ability to waive privacy.

“Thank you for the way you responded. I’m sure you got everything you wanted, but you are aware that in those phone calls that are recorded, neither the attorney nor the client has any discretion or ability to to eliminate that disclosure, that exemption.”

Briggs quickly responded, “That’s why these discussions shouldn’t be happening on those phone calls.”

Former prosecutor testifies about concerns about evidence mishandling

The biggest testimony came from former Assistant District Attorney Lorette Hewitt, who made allegations that Hicks ignored her concerns about legal and ethical issues related to the Walmart case.

Hewitt learned about the calls in jail as she and other prosecutors reviewed evidence. She tried to notify Hicks, but was unsuccessful. She then immediately alerted attorneys to the phone call recordings in prosecutors’ possession.

She claimed that Hicks was angry about her actions in notifying the defense team, despite it being the prosecutors’ duty to share that information with the shooter’s attorneys, Hewitt said.

“It’s about following the law,” Hewitt said in her testimony. “This is about not hiding anything.”

The lack of concern that Hicks allegedly showed played a role in why Hewitt, who was hired by Hicks to run the Walmart case, resigned.

More: Prosecutor testifies that prosecutors mishandled evidence in Walmart mass shooting case

Hewitt also testified about evidence she and prosecutors obtained by interviewing the shooter’s former neighbors. The neighbors claimed the shooter suffered from serious mental health issues and was “out of his mind,” Hewitt testified.

Hewitt believed the evidence should have been turned over because it could help attorneys in the fight against their client getting the death penalty. The notes she took of the interviews were never turned over by prosecutors to defense attorneys after her firing, she claimed.

Hicks and his prosecutors told Medrano that they had found no notes about Hewitt’s interviews in the evidence collected in the case.

Shooter to spend life in Supermax prison in federal case

The shooter has already been convicted in federal court for the mass shooting. He pleaded guilty to 90 federal charges in the shooting on February 9, 2023, after the U.S. Attorney’s Office opted not to seek the death penalty.

He was sentenced to 90 consecutive life sentences on July 7, 2023. A federal judge ordered the prison sentences to be served at the supermax federal prison ADX Florence, near Florence, Colorado. Federal prosecutors said the mass shooting was racially motivated as the gunman admitted he targeted Hispanics, whom he claimed were invading the US.

Aaron Martinez can be reached at [email protected] or on Twitter @AMartinezEPT.

This article originally appeared in El Paso Times: Judge Medrano resumes hearing on prosecutorial misconduct allegations