By Jolie McCullough, The Texas Tribune
“Chaos surrounding rookie El Paso DA Yvonne Rosales fuels concerns about Walmart massacre prosecution” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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The office of El Paso County District Attorney Yvonne Rosales should be readying itself for one of the most high-profile murder trials in recent Texas history — seeking a death sentence for the man accused in a racist massacre at a local Walmart that took the lives of 23 people.
No state trial date has been set in the 2019 mass shooting, the case delayed at least in part by the pandemic and ensuing court backlogs. But now many are questioning whether the rookie district attorney is capable of prosecuting it at all.
During her first two years, Rosales has found herself engulfed in accusations of incompetence and scandal as her office appears unable to fulfill some of its most basic responsibilities.
Local judges have thrown out hundreds of criminal cases after her office failed to meet court deadlines. In one exceedingly rare court ruling, a judge freed a murder defendant after finding that Rosales’ office vindictively pushed for a death sentence because it had been caught unprepared to go to trial.
Omar Carmona, the attorney who represented the freed man, has filed a legal petition seeking to remove Rosales from office through a rarely used process in state law allowing local elected officials to be ousted for incompetence or misconduct. A judge has signed off on moving forward with the proceeding.
The chaos has raised concerns for the rights of both victims and defendants in El Paso County, and for the safety of the community itself.
Now the drama surrounding the county’s top prosecutor is seeping into the Walmart shooting prosecution. Rosales’ office and the judge presiding over the case have clashed in open court, and she has unsuccessfully tried to have him removed, feeding fears that the community’s most prominent criminal case is being mishandled.
Last week, a court filing implicated the prosecution in allegations of impersonating and intimidating relatives of the mass shooting victims, getting the FBI involved.
The district attorney’s office did not respond to repeated requests for interviews or information for this story. Rosales has fought back against many of the criticisms in her own court filing, arguing that local officials, attorneys and the news organization El Paso Matters are conspiring against her.
A growing number of local judges and attorneys have spoken out against Rosales, increasingly frustrated with her office’s failures.
“She still has not owned this,” said former Magistrate Judge Penny Hamilton, who retired in March. “Everything is somebody else’s fault. It was the prior administration at first, now it’s a conspiracy.”
A new DA’s rocky start
After spending most of her legal career practicing family law, Rosales took over as district attorney for El Paso, Culberson and Hudspeth counties in 2021. She replaced Jaime Esparza, who stepped down after holding the office for nearly 30 years.
Rosales had unsuccessfully challenged Esparza in the 2016 Democratic primary, arguing it was time for a change. In 2020, she narrowly beat James Montoya, an assistant district attorney under Esparza, to win the Democratic nod and ultimately the office.
It’s common for new district attorneys to replace some existing staff with their own people, and Rosales quickly began cleaning house. But a handful of local lawyers and judges told The Texas Tribune that Rosales fired a significantly large number of attorneys and staff and wasn’t able to fill many of those jobs.
The office’s work was seemingly affected.
“What I saw in 2021 was a gradual increase in the number of individuals that had been arrested that were still in custody that I had to release from jail because their cases were not filed in a timely fashion,” Hamilton said.
“That goes right directly to the intake division of the district attorney’s office,” she said. “If the beginning of the process is broken, then you’re going to have results like what we’re seeing now.”
Texas law sets speedy trial and due-process deadlines for criminal defendants in multiple ways. The longest a defendant can be held in jail after arrest without any charge filed against them is 90 days. Even if defendants bond out, or are released from jail by that deadline, they can only be held to bond conditions under an active criminal case for six months without prosecutors charging them.
During Rosales’ first 21 months in office, about 900 criminal cases were dismissed by judges because that six-month deadline passed, according to Kelli Childress, El Paso County’s lead public defender, who filed motions to drop the cases. Most were misdemeanor cases, but some were serious felonies.
Childress said more than 1,000 other cases may be eligible for dismissal.
Rosales has blamed the backlogs on the previous administration and the pandemic, which ground all court systems to a halt for more than a year. But Childress said she tried working with prosecutors before seeking dismissals and got nowhere.
“We had to do something to try to relieve the pressure,” she said.
Rosales told a local TV station that she was blindsided by the dismissals and called them a personal attack against her. She said her office is moving to refile cases where the statute of limitations has not passed.
Childress confirmed prosecutors are now going through the older cases, “but at the same time new cases are coming in at the same pace as always.” It’s unclear if they will face the same fate, she said.
In one murder case that has become a lightning rod for Rosales, her office faced a stunning loss when a judge freed the accused man after finding prosecutors acted vindictively.
Ivan Gabaldon, a resident of Ciudad Juárez across the Texas-Mexico border, had been held in jail for nearly a year, accused of killing Juan Garcia Flores. His defense attorneys pushed to go to trial on a self-defense claim, and the court set a date. Curtis Cox, one of Rosales’ top assistants, sought to delay the trial, admitting prosecutors weren’t ready. The case had been mishandled, Cox told the court, but he was focusing on it.
When the judge declined to push the trial date back, Cox offered to release Gabaldon from jail on a no-cost bond to buy more time, but the judge rejected that idea as well. Quickly, Cox offered instead that he may seek the higher charge of capital murder against Gabaldon and pursue the death penalty, which would require more time to prepare.
Within days, the district attorney’s office reindicted Gabaldon on capital murder charges and gave notice it intended to seek death. Gabaldon’s attorneys argued the move was retribution for Gabaldon asserting his right to a speedy trial.
“How could you argue that somebody is meritorious of the death penalty when you offered him a [no-cost] bond five minutes ago?” Denise Butterworth, Gabaldon’s attorney, posed to the Tribune.
State District Judge Alyssa Perez agreed with the defense. She dismissed Gabaldon’s charge, freeing him from the local jail.
“In my years as a prosecutor and being in this courthouse, I certainly did not expect to be in a position to see the state of Texas literally disregard some of the most serious cases,” Perez said when handing down her ruling.
“It does not in many ways feel like justice.”
The district attorney’s office has appealed the ruling, but it’s unclear where Gabaldon is now, Butterworth said.
Walmart case hangs over community
At least in part disrupted by the pandemic, the capital murder case against Patrick Crusius progressed little in the first years after the Aug. 3 slaughter. The alleged shooter has remained in jail or federal detention while awaiting trial.
A court hearing was finally held in July before state District Judge Sam Medrano, but its main achievement was to spark a confrontation over Rosales’ handling of the case.
Rosales had been quoted in the media saying she hoped the state trial would begin next summer. (A tentative federal trial date had just been set for January 2024, in which the alleged gunman is indicted on 90 charges, including 45 hate crimes.)
The result was Medrano slapping a gag order on all attorneys and witnesses in the case, ordering them to keep quiet outside of the courtroom. He angrily rebuked an unprepared Rosales for announcing a hopeful trial schedule without indicating that prosecutors had made progress getting ready for trial, according to El Paso Matters.
“The grandstanding ends today,” Medrano said at the hearing in front of victims’ family members.
After the hearing, Rosales pushed back, seeking to get Medrano thrown off the case, arguing he was biased against her. In her push to remove the judge, she said he should have been directing his questions not to her, but to the case’s lead prosecutor. As the elected district attorney, her role in the county’s biggest murder trial, she said, is “more administrative in nature.”
Cox argued Medrano was targeting his boss because she is female. Rosales is the first woman elected to be El Paso’s district attorney.
“I have never been treated with such bias or antagonism in my entire 20 years of being an attorney,” Rosales said at a hearing last month, hours before an out-of-town judge declined Rosales’ request to take Medrano off the case.
On Tuesday, a new hearing is expected to focus not on the alleged shooter, but on the district attorney’s role in questionable emails sent in August. One, sent from one of the victims’ widow’s email account to the media, condemned Medrano’s actions toward Rosales in the July hearing. Later, after the judge began exploring whether the email violated his gag order, an email said to be from a Juárez lawyer representing the family said they would not appear in court.
The former lead prosecutor on the Walmart case testified last month that the emails read like they came from the district attorney’s office itself. He was fired days after suggesting so to Cox, he told the visiting judge, after nearly 25 years on the job.
On Thursday, the attorney Medrano appointed to represent the victim’s family over the emails filed a report alleging the first email was written by the wife of a local judge said to be working with Rosales’ office and sent from the phone of a victim’s widow without her knowing its contents.
The filing also alleges Municipal Court Judge Roger Rodriguez, of the village of Vinton in El Paso County, has “continually victimized” the family member while saying he was acting on behalf of the prosecution. The allegations are based on sworn affidavits by the victim’s family members and audio they recorded during their conversations with Rodriguez.
Rodriguez has not responded to repeated requests for comment for this article.
“They are in constant fear of retaliation by the District Attorney’s office and Roger Rodriguez,” the filing by attorney Justin Underwood states.
Underwood said in his report that he is turning over the affidavits, audio and other information from his clients to the FBI.
Rosales’ office did not respond to the new report, but she has previously argued that Underwood’s appointment by the judge was a way to investigate her office, which her office said is outside of his scope and part of the political attack on her.
Last month, the district attorney stated in court that Rodriguez did not work for her office, nor was he connected to the Walmart case. But she acknowledged he had spoken to victims’ families with her after the hearing in July.
As focus turns to the brewing turmoil within the Walmart shooting case, the petition to kick Rosales out of office before her term ends in 2024 is quietly moving forward.
Texas residents can seek to oust their locally elected officials before an election by filing a petition in a state district court alleging incompetence or misconduct.
Carmona based his petition largely on low numbers of case filings, high counts of dismissals, the vindictiveness ruling and what he called a ‘mishandling’ of the Walmart mass murder case — before the emails. He also cited an ethics commission opinion stating Rosales had previously used government funds for campaign materials.
Last month in a rare move, an Odessa judge allowed the petition to proceed, leading Rosales to be formally served with a citation and made to respond.
On Thursday, she responded through private attorneys, denying all of the claims of incompetence and misconduct, and argued the statute allowing removal of local officials is itself unconstitutional.
“[Rosales] is the political outsider and a woman who wasn’t supposed to win,” her filing stated. “Her election victory was a stark and unwelcome reminder for many in the community that the position of District Attorney is elected by the people.”
Under the state law, if the county attorney moves to prosecute the case, a jury would decide whether to kick Rosales out of her job. El Paso County Attorney Jo Anne Bernal has requested until Nov. 1 to decide if she’ll take the case to trial.
“You would think that as a defense lawyer … wouldn’t you like all of your cases to be dismissed? It’s more than that,” Carmona said. “I love El Paso, my kids were born here. I plan on staying in El Paso, and the fact is that if something were to happen to my kids, god forbid … do I trust this DA’s office to prosecute the cases where my kids are a victim? And the answer is no.”
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/10/10/el-paso-shooting-yvonne-rosales-district-attorney/.
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