United States v. Crusius

• Decision Date: 28 July 2020
• Docket Number: EP-20-CR-00389-DCG
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. PATRICK WOOD CRUSIUS, Defendant.
• Court: U.S. District Court — Western District of Texas

UNITED STATES OF AMERICA, Plaintiff, v. PATRICK WOOD CRUSIUS, Defendant.

EP-20-CR-00389-DCG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION

July 28, 2020

MEMORANDUM OPINION AND ORDER

Presently before the Court is Defendant Patrick Wood Crusius's ("Defendant") "Motion to Set Schedule Ensuring Patrick Crusius Receives Effective Assistance of Counsel of Defense Counsel With Respect to the Question of Whether the Death Penalty Should be Sought" (ECF No. 85), filed on July 11, 2020. Therein, Defendant asks the Court to vacate the Government's currently scheduled pre-authorization mitigation presentation with defense counsel on July 30, 2020, and reset its scheduling until after the parties discuss a different date for it during the scheduled October 7, 2020 status conference. Mot. at 1, 4, ECF No. 85. For the reasons that follow, the Court DENIES Defendant's Motion.

I. BACKGROUND

Defendant stands accused of opening fire at a Walmart in El Paso, Texas, killing twenty-three people and seriously injuring many more. See Superseding Indictment, ECF No. 82. For these charges, Defendant is eligible for the death penalty. See 18 U.S.C. § 924(j)(1) (noting that a defendant is punishable by death when he, in the course of committing a crime of violence, causes the death of a person through the use of a firearm). If the Government believes that a sentence of death is justified, under the Federal Death Penalty Act ("FDPA"), it must timely file a notice of intent to pursue the death penalty against Defendant. Id. § 3593(a).

In determining whether death is justified, the Department of Justice ("DOJ") follows a series of policies and procedures in the Justice Manual commonly known as the "Death Penalty Protocol." U.S. Dep't of Justice, Justice Manual §§ 9-10.000 et seq. [hereinafter, Justice Manual]. Under the Death Penalty Protocol, all death-eligible cases must go through a review process that provides defense counsel an opportunity to submit and present any mitigating evidence that would militate against a death sentence. Id. §§ 9-10.030, 9-10.130. "No final decision to seek the death penalty shall be made if defense counsel has not been afforded an opportunity to present evidence and argument in mitigation." Id. § 9-10.130.

II. DISCUSSION

The Government here has scheduled the pre-authorization mitigation presentation with defense counsel on July 30, 2020. Defendant argues that it is unreasonable to expect defense counsel to prepare and present a meaningful mitigation presentation by this date, especially given the sheer volume of evidence and complexity of the case coupled with the current exigent circumstances presented by the novel coronavirus ("COVID-19") pandemic. Mot. at 7. Defendant further argues that, since the Court has the inherent authority to enter pretrial management orders to effectuate the speedy and orderly administration of justice —such as a scheduling order, then the Court also has the authority "to establish and manage a schedule of dates for resolution of whether the [G]overnment will seek the death penalty[.]" Id. at 21. Put plainly, Defendant contends that the Court has the power to reschedule the date of the pre-authorization mitigation presentation with defense counsel when it sees fit.

A. The COVID-19 Pandemic Has Effectively Crippled the Mitigation Investigation.

The Court agrees that this capital case is exceptionally voluminous and complex, and that postponing the July 30, 2020 mitigation presentation to afford the defense team additional timeto prepare a meaningful presentation because of the COVID-19 pandemic would not be unreasonable. Barely a month after the Government indicted Defendant, on March 13, 2020, the President of the United States declared a national emergency in view of the COVID-19 outbreak. Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020). That same day, the Governor of Texas similarly declared a state of disaster for the same reason. Governor Abbott Declares State of Disaster In Texas Due To COVID-19, Office of the Texas Governor, Greg Abbott (Mar. 13, 2020), https://gov.texas.gov/news/post/governor-abbott-declares-state-of-disaster-in-texas-due-to-covid-19. The Governor renewed this state of disaster on July 10, 2020, after an alarming increase in the number of people infected with the virus. Governor Greg Abbott Renews COVID-19 Disaster Declaration, Office of the Texas Governor, Greg Abbott (July 10, 2020), https://gov.texas.gov/news/post/governor-greg-abbott-renews-covid-19-disaster-declaration.

The Chief Judge of the Western District of the Texas, the Honorable Orlando L. García, also entered an order that day virtually suspending all court operations, which substantially limited progress in most, if not all, criminal matters pending in this District, including Defendant's. Chief Judge Orlando L. García, Order Regarding Court Operations Under The Exigent Circumstances Created by the COVID-19 Pandemic, United States District Court for the Western District of Texas (Mar. 13, 2020), https://www.txwd.uscourts.gov/wp-content/uploads/2020/03/Order-Re-COVID-19.pdf. Since then, Chief Judge García's order has been supplemented six times; its effects on court operations persist up to this day with no immediate foreseeable end in the near future.¹

Indeed, because of the exigent circumstances described in these ensuing orders, the Court has rescheduled this case's next status conference—in which the forthcoming scheduling order remains the most pressing issue to be addressed—three times already for several months in advance. See ECF Nos. 55, 79, & 81. Not surprisingly, as Defendant painstakingly expounded in his June 15, 2020 "Status Report" (ECF No. 80) and the instant motion, the COVID-19 pandemic, together with the ensuing national and state emergency declarations, local stay-at-home orders, and the Center for Disease Control ("CDC") Guidelines², have effectively crippled the defense counsel's mitigation investigation.

The importance of a meaningful mitigation investigation for the pre-authorization mitigation presentation cannot be understated. The "Spencer Report"³, prepared in 1998 by the Committee on Defender Services Subcommittee on Federal Death Penalty Cases for the Judicial Conference of the United States, notes that:

Since an early decision not to seek death is the least costly way to resolve a potential capital charge, a prompt preliminary mitigation investigation leading to effective advocacy with the local U.S. Attorney and with [DOJ] is critical both to a defendant's interests and to sound fiscal management of public funds. And, since the local prosecutor's recommendation most often prevails with the Attorney General, the opportunity to persuade the U.S. Attorney not to request capital authorization is extremely important.

Spencer Report at 93 (emphasis added).

Finding and interviewing witnesses who have known a capital defendant throughout his life is at the core of a mitigation investigation. The American Bar Association's ("ABA") "Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases" describes the importance of in-person witnesses in the following way:

Team members must conduct in-person, face-to-face, one-on-one interviews with the client, the client's family, and other witnesses who are familiar with the client's life, history, or family history or who would support a sentence less than death. Multiple interviews will be necessary to establish trust, elicit sensitive information and conduct a thorough and reliable life-history investigation. Team members must endeavor to establish the rapport with the client and witnesses that will be necessary to provide the client with a defense in accordance with constitutional guarantees relevant to a capital sentencing proceeding.

ABA, Mitigation Guideline 10.11(C), Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 Hofstra L. Rev. 677, 689 (2008). In-person interviews are also necessary not only for obtaining a witness' mitigating testimony, but also any potential mitigating physical evidence such as documents, photographs, or other records that a witness may possess. See Mitigation Guideline 10.4(A), id. at 688 ("It is therefore incumbent upon the defense to interview all relevant persons and obtain all relevant records and documents that enable the defense to develop and implement an effective defense strategy.").

But to date, the ensuing orders and CDC Guidelines still restrict nearly all non-essential travel and contact and interaction with other people in an attempt to stop the spread of the virus—substantially limiting the defense team's ability to travel and conduct in-person interviews. According to Defendant, some defense team members and certain potential mitigation witnesses are especially at risk of infection because they fit into the category of the population who is at high risk due to their age and existing medical conditions. Since most potential witnesses are located here in Texas, where deaths and hospitalizations continue to spike to this day, these witnesses will reasonably likely be afraid to welcome strangers (particularlydefense investigators) into their homes because of legitimate fears of COVID-19 transmission. To make matters worse, contacting potential witnesses solely though telephone would prove devastating to the defense team in trying to obtain any mitigating evidence from them. See Eaton v. Wilson, 09-CV-261-J, 2014 WL 6622512, at *73, *84 (D. Wyo. Nov. 20, 2014), aff'd sub nom. Eaton v. Pacheco, 931 F.3d 1009 (10th Cir. 2019) (describing the approach of contacting potential mitigation witnesses solely via telephone in a capital case as "a textbook for how not to do it" and concluding that the defense team "clearly did not adequately perform a thorough mitigation investigation."). As such, the Court agrees with Defendant that attempting to conduct in-person interviews during...