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

El Paso District Attorney Bill Hicks declared the next day a “good day for the state” after a break in a hearing in 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 seeking to retain his 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 that accused Hicks of ignoring concerns that his office illegally obtained and listened in on private prison conversations between the gunman, Patrick Crucius, 26, and attorneys his. The defense team argued that those conversations are protected by attorney-client privilege laws.

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

“We’re under a gag order, we can’t comment,” Spencer said. “And since we don’t do politics, I can’t comment.”

The second day of the hearing was marked by a staunch defense from DA staff, who testified they did nothing illegal with records of jailhouse conversations or visitor logs involving the gunman who is being held at the downtown El Paso County jail .

Judge Sam Medrano issued no ruling Friday, Nov. 1, after more than eight hours of testimony heard over two days on allegations that district attorney staff illegally wiretapped phone calls and failed to turn over key evidence to defense attorneys.

More: Day 2 begins in El Paso Walmart hearing on alleged wrongdoing: live updates

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

The hearing was held Thursday, Oct. 31 and Friday, Nov. 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 called by defense attorneys are still expected to testify. Medrano scheduled the hearing to resume on Dec. 11.

While testimony focused on the prosecution’s handling of evidence, it remains unknown whether prosecutors’ actions violated the gunman’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 capital murder and 22 counts of aggravated assault with a deadly weapon in the August 3, 2019, racially motivated mass shooting that left 23 people dead and dozens more injured. Hicks is seeking the death penalty.

The Legality of Prosecutors Wiretapping Prison Phone Calls

Prominent prosecutor John Briggs, who played a key role in three different prosecutions in El Paso, challenged defense attorneys’ claims that the jailhouse phone calls were legally protected by attorney-client privilege laws.

Briggs was cross-examined by Spencer, the exchange between the two El Paso legal heavyweights being at times adversarial as the men continued to challenge each other’s views throughout Briggs’ testimony.

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

“With someone in prison custody, the case law is very clear,” Briggs argued. “Their privacy rights are virtually non-existent and phone calls from prison are recorded and everyone knows it. In fact, at the beginning of the phone call, it says, “This phone call is being recorded.”

“It’s being recorded, which means the way I see it, first of all, I don’t know why a lawyer would talk to a client on a phone call that’s being recorded and expect to have any right to privacy in that conversation. .”

Briggs argued that prosecutors have every legal right to listen to conversations between the gunman and his lawyers.

“I understand attorney-client privilege and all that stuff, but until you’ve had that conversation in front of a third person, you waive 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 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: Live updates

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

“It might be constitutional, but it’s not Christian,” Briggs said of wiretapping the prison.

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

“Thank you for the way you responded, I’m sure you got everything you wanted, but you know those phone calls that are recorded, neither attorney nor client have any discretion or ability to remove that disclosure , that waiver.”

Briggs quickly replied, “that’s why these discussions shouldn’t take place on those phone calls.”

Former prosecutor testifies about concerns over evidence tampering

The greatest testimony was of the 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 prison calls while she and other prosecutors were going through evidence. She tried to notify Hicks but was unsuccessful. She then immediately alerted defense attorneys to the phone call records in prosecutors’ possession.

She claimed Hicks took offense at her actions in notifying the defense team, despite prosecutors’ obligation to share that information with the gunman’s attorneys, Hewitt said.

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

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

More: Prosecutor testifies DA’s office mishandled evidence in Walmart mass shooting

Hewitt also testified about evidence she and prosecutors obtained from interviewing the gunman’s former neighbors. Neighbors claimed the gunman suffered from serious mental health issues and was “not quite in his right mind,” Hewitt testified.

Hewitt believed the evidence should have been turned over because it could have helped defense attorneys fight their client’s death penalty. Notes she took of the interviews were never turned over by prosecutors to defense attorneys after she resigned, she claimed.

Hicks and his prosecutors told Medrano that they found no notes on the interviews from Hewitt in the evidence collected in the case.

A gunman will spend his life at Supermax prison in a federal case

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

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

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

This article originally appeared on the El Paso Times: Judge Medrano will resume the hearing on allegations of misconduct by the DA’s office