El Paso District Attorney Bill Hicks called the second day after a break in the trial “a good day for the state.” allegations of prosecutorial misconduct.

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

Hicks, who is trying 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 followed two contentious depositions accusing Hicks of ignoring concerns that his office had illegally obtained and wiretapped private prison conversations between the gunman, 26-year-old Patrick Crucius, and defense attorneys. The defense team argued that these conversations were protected by client-lawyer 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 are under a gag order, we cannot comment,” Spencer said. “And since we don’t do politics, I can’t comment.”

The second day of the trial was marked by a strong defense from Prosecutor’s staff who testified that they had done nothing illegal with jail conversation tapes or visitor logs regarding the gunman being held at the El Paso County Jail Downtown.

Judge Sam Medrano did not issue a ruling Friday, Nov. 1, after more than eight hours of testimony over two days on allegations that district attorney’s office staff illegally wiretapped phone calls and failed to turn over key evidence to defense attorneys.

More: Day 2 begins at El Paso Walmart shooting hearing for alleged misconduct: Live updates

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

The hearing was held on Thursday, October 31, and Friday, November 1, in the 409th District Court at the Enrique Moreno County Courthouse in Downtown El Paso.

Six witnesses took the stand at the hearing, but more than five witnesses subpoenaed by defense attorneys are still expected to testify. Medrano scheduled the trial to continue on December 11.

Although the testimony focused on how the district attorney’s office handled the evidence, it is unknown whether prosecutors’ actions violated the gunman’s constitutional rights and whether the death penalty remains on the table as a possible punishment.

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

Legality of prosecutors tapping prison phone calls

Prominent prosecutor John Briggs, who played a key role in the management of three different El Paso district attorneys, disputed defense attorneys’ arguments that jailhouse phone calls were legally protected under client-lawyer privilege laws.

Briggs was questioned by Spencer; The exchange between El Paso’s two heavyweights became contentious at times as the men continued to challenge each other’s ideas throughout Briggs’ testimony.

Spencer asked Briggs if his client believed there was no violation of prosecutors’ right to listen to conversations.

“The case law is very clear when someone is in prison custody,” Briggs said. “In fact, they have no right to privacy, and phone calls from the 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, so the way I see it, first of all, I don’t know why any lawyer would talk to a client during a recorded phone conversation and expect to have a right to privacy in that conversation.”

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

“I understand the attorney-client privilege and all that stuff, but when you have that conversation in front of a third party, you waive that attorney-client privilege,” Briggs said. “If this phone call is being recorded, that means I can listen to it, and you shouldn’t expect to have any privacy in this phone call… So do I have the right to listen to this? Yes.”

More: Crucial hearing begins into prosecutorial misconduct in Walmart shooting case: live updates

Briggs said it was “extremely rare” that he had to listen to prison calls and that he mostly did not listen to them.

“It may be constitutional, but it’s not Christian,” Briggs said as he listened to prison phone calls.

Spencer responded by saying that the defendant and his attorneys had no discretion or authority to waive privacy.

“Thank you for the way you responded, I’m sure you got everything you wanted, but you are aware in the recorded phone calls that neither the attorney nor the client had any discretion or authority to waive this disclosure.”

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

Former prosecutor testifies about concerns about mishandling of evidence

The greatest testimony came from the past Deputy District Attorney Lorette Hewitt, who made accusations that Hicks ignored concerns about legal and ethical issues surrounding the Walmart case.

Hewitt learned of the jail searches while he and other prosecutors were reviewing evidence. He tried to notify Hicks but was unsuccessful. He then immediately alerted defense attorneys to the phone call records that prosecutors had.

Hewitt claimed he was upset by Hicks’ behavior in providing information to the defense team, even though prosecutors had an obligation to share that information with the gunman’s attorneys.

“This is about complying with the law,” Hewitt said in his statement. “It’s about not hiding anything.”

The alleged lack of concern shown by Hicks played a role in the resignation of Hewitt, who was hired by Hicks to handle the Walmart case.

More: Prosecutor says prosecutor’s office misjudged evidence in Walmart mass shooting case

Hewitt also testified about evidence he and prosecutors gathered from interviews with the gunman’s former neighbors. Neighbors claimed the gunman had serious mental health issues and was “brained out,” Hewitt said.

Hewitt felt the evidence should be turned over because it could help defense attorneys fight against their clients’ death penalty. He claimed that the notes he took from the interviews were never given to defense attorneys by prosecutors after he resigned.

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

Gunman in federal lawsuit will spend life in supermax prison

The gunman had already been convicted in federal court of a mass shooting. He confessed his crime February 9, 2023 90 federal charges related to the shooting after the U.S. Attorney’s Office chose not to seek the death penalty.

Sentenced on July 7, 2023 90 consecutive life sentences. A federal judge ordered their sentences to be served at the ADX Florence supermax federal prison near Florence, Colorado. Federal prosecutors said the mass attack was racially motivated as the gunman acknowledged targeting Hispanics, who he claimed were invading the United States.

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

This article first appeared in the El Paso Times: Judge Medrano to continue hearing on allegations of misconduct in prosecutor’s office