1 

UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

EL PASO DIVISION 

 

UNITED STATES OF AMERICA, ) 

 ) 

 Plaintiff, ) 

 ) Crim. No. EP-20-CR-0389-DCG 

v. ) 

 ) 

 ) 

PATRICK CRUSIUS, ) 

 ) 

 Defendant. ) 

 ) 

 ) 

 

REPLY TO GOVERNMENT’S RESPONSE TO PATRICK CRUSIUS’S 

MOTION TO SET SCHEDULE ENSURING THAT HE RECEIVES 

EFFECTIVE ASSISTANCE OF DEFENSE COUNSEL WITH 

RESPECT TO THE QUESTION OF WHETHER THE DEATH 

PENALTY SHOULD BE SOUGHT 

 

 PATRICK CRUSIUS, by and through his counsel, David A. Lane, hereby files 

this REPLY to the GOVERNMENT’S RESPONSE (Doc. 87) to his MOTION TO SET 

SCHEDULE ENSURING THAT PATRICK CRUSIUS RECEIVES EFFECTIVE 

ASSISTANCE OF DEFENSE COUNSEL WITH RESPECT TO THE QUESTION OF 

WHETHER THE DEATH PENALTY SHOULD BE SOUGHT. (Doc. 85). 

 The Government does not deny that a mitigation investigation has not yet been 

conducted. The Government does not deny that the defense is not prepared and cannot 

effectively represent Mr. Crusius in connection with the Government’s July 30th deadline 

the Government has arbitrarily and capriciously set. The Government asks this Court to 

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shrug its shoulders and embrace a schedule that both parties agree will result in defense 

counsel’s inability to present the Government with mitigation information within the next 

few days. 

 This Court does not have to accept the Government’s cavalier approach. 

 Some district courts have granted the relief sought by Mr. Crusius and some have 

not. The Government cites no binding precedent in this Court barring the relief 

requested.1

 The Government essentially admits that courts routinely enter scheduling 

orders setting a date for the presentation of mitigating evidence to the DOJ.2

 

 1. The Government cites a handful of cases in which district courts declined to 

enter a stay of the Government’s Capital Review Process. Some of them preceded 

adoption of the Guidelines for the Administration of the Criminal Justice Act, 

promulgated by the Judicial Conference. (“CJA Guidelines”)(Doc. 085-2), and all 

preceded COVID-19. Not a single one of them involved a deadly epidemic, widespread 

stay-at-home orders, and orders from public health officials, Chief Judges, and Governors 

that have prevented a defense mitigation investigation. Not a single case endorsed setting 

of the mitigation presentation within less than six months of counsel having received 

discovery. 

1 This Court should wholly reject the Government’s quotation to United States v. Rubio-Rangel, 

No. 18-cr-274, Doc. 164 at 1 (S.D. Ga. Oct. 23, 2019) (Doc. 87, pp. 10-11). Doc. 164 is an order 

partially unsealing a prior order, solely for the purpose of revealing the Order to the attorneys for 

the Government. The Order otherwise is under seal. 

2 See, e.g., United States v. McGill, No. 09-CR-2856-IEG, 2010 WL 1571200, at *3 (S.D. Cal. 

Apr. 16, 2010)(Doc. 85-8); United States v. Jameson, No. 18-CR-245-JED-7, ECF No. 338 

(N.D. Okla. Dec. 23, 2019)(Doc. 085-7); United States v. Benavides and Weber, 06‐cr-62‐M‐

DWM, ECF No. 123 (D.Montana, Oct. 10, 2008)(Doc. 085-6]. 

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2. Counsel actually received usable discovery, in the form of a hard drive, 

from the Government on February 21, 2020. Within weeks, the COVID pandemic struck 

and stay-at-home orders were in place. 

3. On March 13, 2020 -- the same day that this Court appointed the attorney 

who will lead Mr. Crusius’s mitigation investigation -- the President of the United States 

declared a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) 

Outbreak, the Governor of Texas declared COVID-19 to be a disaster under Section 

418.014 of the Texas Government Code, and Chief Judge Orlando Garcia issued his first 

COVID-19 Order, “Order regarding Court Operations under the Exigent Circumstances 

Created by the COVID-19 Pandemic.” The situation, especially in Texas, has only 

worsened since then. 

 4. When it suits the Government, the Government has no compunction against 

seeking judicial intervention in order to ensure that parties have “appropriate time to 

investigate aggravating and mitigating factors bearing upon the [Government’s] death 

penalty decision.” United States v. Bush, No. 3:18-CR-00188-CHB (W.D. Ky.), 

“Government’s Motion to Stay Proceedings and Appoint Counsel” (Doc. 9) (filed Nov. 

19, 2018) (“Government’s Bush Motion”) (Exhibit A to this Motion). In its motion in 

Bush, the Government explained the importance of a thorough mitigation investigation 

that benefits not only the Government in its decision, but also the public, stating: 

The ends of justice require that prosecutors make wise and 

well-informed decisions on whether to seek the death penalty 

to guarantee that this ultimate punishment is used only when 

most appropriate. The Defendants, for obvious reasons, have 

the utmost interest in making sure that the United States does 

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not make a hasty decision whether they will seek to have 

them put to death. . . . The public has a similar interest in 

protecting against the unwarranted use of capital punishment 

in its name. The gravity of this decision cautions against a 

process built for speed rather than for justice. 

United States v. Dominguez-Maqueda, No. CR 06-86 JB, 2006 WL 1308266, at *5 

(D.N.M. 2006), quoted in Government’s Bush Motion at p. 4. The Government quoted 

cases acknowledging that the schedule should “enable[ ] the unpressured compilation and 

submission of mitigating information .... and consideration of such material by the 

United States Attorney and the Attorney General and their respective committees.” 

United States v. Jackson, No. 02 CR 756 (LMM), 2005 WL 323715, at *1 (S.D.N.Y. Feb. 

10, 2005) (Government’s Bush Motion at p. 3). In contrast, here the Government is 

advocating an unconscionable rush to judgment. 

 5. The Government’s separation-of-powers argument is a red herring. Mr. 

Crusius is not asking this Court to interfere with the Government’s prosecutorial 

discretion about whether or not to seek the death penalty. As in United States v. McGill

and the numerous cases in which the district court set a schedule that included the 

defense mitigation presentation, prosecutorial discretion remains intact. “In issuing a 

scheduling order, the Court is not granting defendant any new right or invading the 

province of the Department of Justice to determine, according to its protocol, whether to 

seek the death penalty in this case.” United States v. McGill, No. 09-cr-R2856-IEG, 2010 

WL 1571200, at *4 (S.D. Cal. Apr. 16, 2010)(Doc. 085-8). See also, e.g., United States v. 

Jameson, No. 18-CR-245-JED-7, Doc. 338 (N.D. Okla. Dec. 23, 2019) (copy of order 

filed in Mr. Crusius’s case as Doc. 085-7). In Jameson, El Paso Attorney Joe A. Spencer 

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represented a client in a case in the Northern District of Oklahoma. Second Opposed 

Motion to Amend Scheduling Order to Include Dates for Submitting Mitigating Evidence. 

Id., Doc. 330. Chief Judge John Dowdell granted Mr. Spencer’s motion and observed that 

the scheduling order did not intervene in DOJ’s decision whether to seek the death 

penalty: 

As the government points out, the decision whether to seek 

the death penalty rests solely within the Executive Branch. 

(See Doc. 335). But Mr. Jameson is not requesting that the 

Court intervene in the decision by the DOJ whether to seek 

the death penalty. ... While extending the time for the 

presentation of his evidence may impact the timing of the 

DOJ’s decision, the Court is not intervening in the decision. 

... 

A court’s scheduling of trial and pretrial matters may impact 

the timing of the DOJ’s decision. But that does not interfere 

in the DOJ’s ultimate decision to seek, or not seek, the death 

penalty. Notwithstanding the government’s arguments, the 

Court certainly has the power, and the obligation, to enter 

scheduling orders to govern the progression of criminal 

proceedings that are initiated by the government in this Court.

United States v. Jameson, supra, Doc. 338, pp. 1-2 (copy of order filed in 

Mr. Crusius’s case as Doc. 085-7). (emphasis in original). 

6. The Government has not shown how a delay in Mr. Crusius’s presentation 

of mitigation evidence to the U.S. Attorney will hinder its ability to carry out its 

prosecutorial function. The requested scheduling order would be designed purely to 

ensure this case proceeds in an orderly and expeditious manner.

7. It is not true, as the Government suggests (Doc. 87 at 12), that the CJA 

Guidelines and other protocols are designed to expedite the Government’s death penalty 

at all costs, even without input from the defense because of circumstances out of their 

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control. As numerous courts (cited supra) have observed, both parties and the public 

benefit from, and are entitled to, a thorough and well-prepared defense mitigation 

presentation to the U.S. Attorney. That is all Mr. Crusius seeks in these highly unusual 

and urgent times. 

The Government is Wrong on the Facts 

 8. The Government correctly observes that there are many examples of cases 

in which less than a year passed before the Government filed a NOI. See Doc. 87 at 23. 

There many more situations in which more than one year passed. As the Government is 

full aware, the average length of time is 12.5 months, which is almost always after the 

defendant has received discovery (which occurred in this case in February 2020). See 

“Declaration of Kevin McNally regarding Preparation Time before Meeting with the 

Attorney General’s Capital Case Review Committee,” Exhibit B to Mr. Spencer’s Motion 

in the case of United States v. Jameson, supra, Doc. 330-2 (filed 11/20/19), which is 

attached hereto as Exhibit D. In United States v. Santiago, No. 1:10-cr-00164-REB 

(D.Colo.), the NOI (Doc. 291) was filed on March 11, 2011, almost six years after the 

April 21, 2005 offense;3

 in the case of co-defendants United States v. Cooya, Crim. No. 

4:08-CR-70-001 (M.D. Pennsylvania), and United States v. Williams, No. 4:08-CR-70-

002 (M.D. Pennsylvania), the NOI was filed on July 30, 2009, almost four years after the 

September 28, 2005 offense. See id. Docs. 161, 162. In United States v. Lujan, No. 05-cr3 It is notable that Santiago was a prison killing case and the entire incident was videotaped. 

Thus, this six-year period arose even with relative ease of access to information about the crime -

- in contrast to Mr. Crusius’s case with an exceptionally complex case, over 40,000 pages of 

discovery to date, and a deadly pandemic that has paralyzed the country. 

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924-RB (D.N.M.), the offense occurred on or about March 7, 2005, the initial federal 

indictment was filed on April 27, 2005, id. Doc. 1; and the Notice of Intent to Seek the 

Death Penalty was not filed until July 12, 2007, id. Doc. 146, more than two years later. 

 9. Unbelievably, the Government prides itself on offering premature, pointless 

dates at a time when Mr. Crusius had been appointed a single lawyer with no discovery, 

no mitigation investigators, and no co-counsel. Moreover, most of the Government’s 

“invitations” for defense counsel to present mitigation evidence to the local United States 

Attorney predate Mr. Crusius’s first federal indictment on February 6, 2020, and the 

superseding indictment filed on July 9, 2020. See Doc. 87 at 3-4. The fact that the 

Government has in the past set wholly unrealistic deadlines does not further its argument 

that it has been making reasonable overtures to defense counsel to present mitigation 

evidence. According to the Government’s position in its Bush Motion, these attempts to 

schedule a mitigation presentation were premature. As the Government explained in 

Bush: 

The Capital Case Review Process begins with appointment of 

two defense attorneys, at least one of whom must be 

experienced in the law applicable to capital cases. Defense 

counsel is given the opportunity to investigate and to present 

to the United States any mitigating factors that may affect the

decision whether or not to seek the death penalty. The final 

decision whether or not to seek the death penalty is reserved 

exclusively to the Attorney General of the United States. 

Exhibit A at p. 2 (emphasis added). Second counsel was not appointed until shortly 

before Mr. Crusius’s first federal indictment on February 6, 2020, and the voluminous 

federal discovery was not made available until February 14, 2020. Given the recency of 

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these events and the ensuing pandemic situation, the Government’s Capital Case Review 

began prematurely. 

 10. The Government does not even attempt to dispute the facts as laid out in 

Mr. Crusius’s motion and in the Declaration of Elizabeth Vertkessian, Ph.D. (Doc. 080-

1), which was referenced in Mr. Crusius’s motion and attached to Mr. Crusius’s Status 

Report (Doc. 080). The Government does not deny that trying to contact persons through 

the “alternative means” suggested by the Government is not only unproductive, but also 

has great potential to irreparably damage the mitigation investigation. 

 11. Admitting that travel cannot be accomplished at this time, the Government 

suggests that local attorneys should conduct the mitigation investigation instead of 

trained mitigation investigators. That suggestion defies logic and flies in the face of the 

Guidelines that both counsel and Mr. Crusius’s mitigation investigators are required to 

follow. It ignores the fact that people who are potential sources of mitigation information 

are just as at-risk, just as vulnerable, and just as quarantined as are members of the 

defense team. It ignores the fact that defense counsel is as unable to travel as the 

mitigation investigators. Alternatively, the Government suggests that telephonic, video, 

and other means of electronic communications would be sufficient. Doc. 87 at 21. For 

support, it points to United States v. Lujan, 2011 WL 13210250, *5 (D.N.M. April 25, 

2011). An Order denying a motion to strike the notice of intent after the case had been 

pending for almost five years is very different from the instant motion. In Lujan, there 

was no assertion that investigation had not been able to go forward within the United 

States; investigation was hampered only in one area of the case, the ability to interview 

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witnesses in Cd. Juarez, Chih., Mexico. In contrast, Mr. Crusius’s defense team is 

completely hamstrung by the pandemic which prevents not only interstate travel but also 

safe in-state travel. 

12. The Government’s suggestion that local attorneys conduct the mitigation 

investigation assumes that people who are potential sources of mitigation reside in El 

Paso, Texas. The Government knows that is not true. 

13. Around the country, the Government itself has taken the position that inperson contacts with its own personnel have not been possible and remain impossible 

because of the unprecedented COVID-19 pandemic. See Attached Exhibit B to this 

Reply, Letter from the U.S. Attorney for the Southern District of West Virginia. In his 

letter, the U.S. Attorney admonishes opposing counsel’s actions in attempting to serve a 

subpoena on an Agent at his home: “Such actions jeopardized the health and safety of 

Agent Cox and his family...[and]...subjected them and the community to an increased 

risk of COVID-19 transmission [and] undermin[ed] the social distancing order issued by 

the State of Virginia on March 23, 2020.” Ex. B, p. 1. The U.S. Attorney said that its FBI 

Agent was prohibited from attending an in-person deposition “for the duration of this 

national emergency.” Id., p. 2. Further, the U.S. Attorney took the position that, because 

of the pandemic, “the FBI is currently not in a position to search for documents sought by 

the subpoena and to review and process them.” Ibid. The U.S. Attorney pointed out the 

very same thing that Mr. Crusius’s attorneys have told this Court: i.e., that the pandemic 

has devastated far more than even the in-person interview process but has also severely 

impacted all aspects of the investigation, including document searches: 

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The foregoing concerns and the unpredictable nature 

of this national emergency render the FBI unable to commit 

to a timeline for a further response to defendants’ third-party

discovery requests. We do not know when the FBI’s 

discovery processing employees will be authorized to come 

back to work, and do not know how long it may take them to 

locate and review responsive documents after they resume 

operations. At that point, the FBI will undoubtedly also be 

facing a significant backlog of competing requests received 

before and during this time of national emergency. 

Id., p. 3. The Government should not be heard that the defense should have no problem 

obtaining records and documents from agencies which, just like the Government’s 

agencies, have been effectively immobilized by the pandemic. 

14. The Government claims that in-person attorney-client visits at the El Paso 

jails are allowed but ignores the facts. “Can” go to the jail and “should” go to the jail are 

two different things. Any person “can” play Russian roulette with a loaded gun but no 

person “should” do so. As of July 24, 2020, more than 200 inmates and employees at El 

Paso’s two jails have been infected with COVID-19.4

 The Federal Public Defender has 

instructed its staff to not go to the El Paso jail because of the severe health and safety 

risks to the clients, the jail staff, and of course, the attorneys and investigators 

themselves. The attached Affidavit of Louis Lopez explains the types of severe risks 

encountered by any attorney going to the jail at this time. 

4 “More than 200 COVID-19 cases in El Paso County Jails,” in “El Paso coronavirus update: 

City reports 15 COVID-19 deaths, 204 new cases,” El Paso Times (online) (July 24, 2020), 

available at: https://www.elpasotimes.com/story/news/2020/05/27/coronavirus-el-paso-updatetexas-confirmed-cases-reopenings/5265049002/?for-guid=95138c40-aeb3-11ea-925a323c7dd10ae9&utm_source=elpasotimesDaily%20Briefing&utm_medium=email&utm_campaign=daily_briefing&utm_term=list_article

_thumb (viewed 7/24/20). 

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15. The Government also suggests that telephonic communication between Mr. 

Crusius and his counsel is sufficient, citing a recent order denying a motion to reschedule 

Dustin Honken’s execution. Doc. 87 at 21, n. 6 (citing United States v. Honken, No. 01-

cr-2047, Doc. 822 (S.D. Ind. July 14, 2020). The fact that Mr. Honken was denied inperson meetings with counsel near the end of the nearly 20-year pendency of his case is 

quite different from the instant situation, in which Mr. Crusius’s defense team is being 

hampered at the very outset of their investigation and preparation.5

 The Declaration of 

Elizabeth Vertkessian, Ph.D. (Doc. 080-1), which was referenced in Mr. Crusius’s 

motion and attached to Mr. Crusius’s Status Report (Doc. 080), explains why at this stage 

of the proceeding, that is not an avenue that would provide even the minimum level of 

adequate representation. 

16. The Government takes the diametrically opposed positions that COVID-19 

should not have been delaying the mitigation investigation and that the pandemic is so 

serious that “the length of a pandemic-related delay is [ ] uncertain” and “could be very 

long.” Doc. 087, p. 22. This Court should reject the Government’s hyperbole. Mr. 

Crusius seeks a reasonable step towards scheduling of this case -- i.e., that this matter be 

stayed until the parties and the Court discuss scheduling at the upcoming Status 

Conference. 

5 Notably, in Honken, the Government executed Mr. Honken after expiration of the execution 

warrant, rather than properly seeking new, proper authorization. 

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The Government is wrong on the law. 

17. The Government is wrong about the Constitutional rights at stake. The 

protocols of the Government and the Judiciary recognize Mr. Crusius’s right to the 

assistance of counsel in the mitigation presentation that is provided for in the DOJ’s 

Justice Manual. Because “[d]eath penalty certification involves the most fundamental of 

the rights, the right to life,” United States v. Pena-Gonzalez, 62 F. Supp. 2d 358, 363 

(D.P.R. 1999), the right to counsel’s effective assistance is guaranteed by both the Sixth 

and Fifth Amendments. Because “the right to counsel is grounded in procedural due 

process, ... the complete abdication of counsel at a death penalty certification hearing is, 

concomitantly, a denial of the defendant’s due process rights.” Ibid, citing Powell v. 

Alabama, 287 U.S. 45, 71 (1932). 

18. Contrary to the Government’s criticism of the Puerto Rico cases, they were 

never overruled and they stand as persuasive guidance for this Court. The Sixth 

Amendment right to counsel attaches to the mitigation submission process because it “is 

of paramount importance in a capital case” which “can literally lead to a determination of 

life or death.” Pena-Gonzalez, supra, 62 F.Supp.2d at 363-64 (striking death penalty 

certification because counsel did not attend the certification meeting); United States v. 

Gomez-Olmeda, 296 F.Supp.2d 71, 87(D.P.R. 2003) (striking the Government’s notice of 

intent to pursue the death penalty when a combination of circumstances “rendered the 

DOJ meeting meaningless”). The Government’s opposition to Mr. Crusius’s reasonable 

request to discuss scheduling of the mitigation presentation at this Court’s status 

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conference renders any death penalty certification obtained under rushed circumstances 

vulnerable as a violation of Mr. Crusius’s due process rights. 

19. While Mr. Crusius disagrees with the Government’s Sixth Amendment 

analysis, even if arguendo this Court agreed with the Government’s analysis, the due 

process clause still exists to provide the protection he seeks. In Vitek v. Jones, the U.S. 

Supreme Court observed that it had “repeatedly held that state statutes may create liberty 

interests that are entitled to the procedural protections of the Due Process Clause of the 

Fourteenth Amendment.” Vitek v. Jones, 445 U.S. 480, 488-89 (1980). The Vitek v. 

Jones Court pointed to examples where the Court had recognized a liberty interest 

protected by the Due Process Clause notwithstanding the absence of a constitutional 

right: 

There is no ‘constitutional or inherent right’ to parole, 

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979), 

but once a State grants a prisoner the conditional liberty 

properly dependent on the observance of special parole 

restrictions, due process protections attach to the decision to

revoke parole. Morrissey v. Brewer, 408 U.S. 471 (1972). 

The same is true of the revocation of probation. Gagnon v. 

Scarpelli, 411 U.S. 778 (1973). In Wolff v. McDonnell, 418 

U.S. 539 (1974), we held that a state-created right to goodtime credits, which could be forfeited only for serious 

misbehavior, constituted a liberty interest protected by the 

Due Process Clause. We also noted that the same reasoning 

could justify extension of due process protections to a 

decision to impose ‘solitary’ confinement because ‘[it] 

represents a major change in the conditions of confinement 

and is normally imposed only when it is claimed and proved 

that there has been a major act of misconduct.’ Id., at 571-

572, n. 19.’ Once a State has granted prisoners a liberty 

interest, we held that due process protections are necessary 

‘to insure that the state-created right is not arbitrarily 

abrogated.’ Id., at 557. 

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Vitek v. Jones, 445 U.S. at 488-89 (1980). See also Fetterly v. Paskett, 997 F.2d 1295, 

1300-01 (9th Cir. 1993)(acknowledging that, under the U.S. Constitution, laws or rules 

designed to assure fairness and protect the substantive rights of defendants create liberty 

interests, and thus give rise to indirect due process rights), cert. denied, 513 U.S. 914 

(1994). The Fifth Circuit has stated: 

The Fourteenth Amendment’s Due Process Clause protects 

persons against deprivations of life, liberty, or property; and

those who seek to invoke its procedural protection must 

establish that one of these interests is at stake. . . . . A liberty 

interest may arise from the Constitution itself, by reason of 

guarantees implicit in the word “liberty,” or it may arise from

an expectation or interest created by state laws or policies[.]

With regard to the latter, we focus on “the nature of the 

deprivation” resulting from a state regulation, rather than “the 

language of a particular regulation.” 

Wilkerson v. Goodwin, 774 F.3d 845, 851-52 (5th Cir. 2014) (citations and internal 

quotation marks deleted). 

20. The Government points to a single Fifth Circuit decision, United States v. 

Cooks, 589 F.3d 173, 184 (5th Cir. 2009), for the proposition that the guidelines and 

policies in the Justice Manual do not create enforceable rights for criminal defendants. 

Cooks is not on point. In Cooks, the defendant belatedly, post-trial, claimed that he was 

deprived of due process by the prosecutors’ alleged failure to consult with the Justice 

Department's Asset Forfeiture and Money Laundering Section. The district court refused 

to consider the argument because it was untimely made. On plain error review, the Fifth 

Circuit concluded that the defendant could not show that the prosecutors failed to follow 

DOJ policy. Id. Not only is the Court’s discussion that DOJ policies do not create 

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enforceable rights for defendants dicta, the procedure at issue in Cooks was one in which 

the defendant did not participate. The DOJ’s Death Penalty Protocol, on the other hand, 

specifically requires that the defendant be allowed to participate. Moreover, the 

Government more recently participated in the development of the Guideline contained in 

the Guide to Judicial Policy, Vol. 7, Pt. A, Ch. 6, § 670. That policy was jointly 

developed by representatives of the Department of Justice and Defender Services, and 

adopted by the Judicial Council of the United States. See United States v. Jameson, No. 

18-CR-245-JED-7, ECF No. 338 (N.D. Okla. Dec. 23, 2019)(Doc. 085-7). That 

Guideline advises the district court to set a schedule for resolution of whether the 

Government will seek the death penalty, including a date for the defense to submit 

mitigating evidence to the United States Attorney. Id. Contrary to the Government’s 

assertion that Mr. Crusius does not “have a cognizable right to participate” in the DOJ’s 

capital-review process, Doc. 87, n. 6, in fact the DOJ Protocol, especially combined with 

the Guide to Judicial Policy, has given Mr. Crusius an expectation that he will have a 

reasonable opportunity to participate in the DOJ’s process to determine whether or not to 

seek the death penalty -- the gravest penalty available -- against him. The Government is 

willfully violating that due process expectation. 

21. Just as the Government could not provide that benefit to only defendants 

whose are represented by counsel of a certain race, the Government may not provide that 

benefit to only defendants whose counsel and mitigation investigators are not vulnerable 

persons as defined in the CDC Guidelines, Texas Governor Abbott’s Executive Orders, 

and the protocols for visitation at the El Paso County Jail. 

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CONCLUSION 

Perhaps the greatest failure of the Government’s response is that it does not 

acknowledge this is a unique time, presenting unprecedented challenges to the defense 

and the Court, a time which requires extraordinary measures, especially when death is a 

possible sentence. However, the defense is not asking for an extraordinary measure, but 

merely a reasonable opportunity under the circumstances to participate in an orderly and 

fair fashion in the Government’s established process to decide whether or not to seek a 

sentence of death, an opportunity that is within this Court’s discretion and ability to 

manage. 

 Respectfully submitted this 24th day of July, 2020. 

 KILLMER, LANE & NEWMAN, LLP 

 /s/ David A. Lane 

 David A. Lane 

David A. Lane Rebecca L. Hudsmith 

Colorado Bar No. 16422 Louisiana Bar No. 07052 

Killmer, Lane & Newman, LLP Office of the Federal Public Defender for 

1543 Champa Street, Suite 400 the Western and Middle Districts of La. 

Denver, CO 80202 102 Versailles Boulevard, Suite 816 

Telephone: 303-571-1000 Lafayette, LA 70501 

Facsimile: 303-571-1001 Tel: 337-262-6336 / Facsimile: 337-262-6605 

Email: dlane@killmerlane.com Email: rebecca_hudsmith@fd.org 

Cori Ann Harbour-Valdez 

Texas Bar No. 24004685 Jane Fisher-Byrialsen 

The Harbour Law Firm, P.C. Colorado Bar No. 49133 

1522 Montana Ave, 3rd Floor Law Firm of Fisher & Byrialsen 

El Paso, TX 79902 4600 S. Syracuse Street, 9th Floor 

Tel: 915-544-7600 Denver, CO 80237 

Facsimile: 915-975-8036 Tel: 202-256-5664 

Email: cori@harbourlaw.net Email: jane@fblaw.org 

 

Case 3:20-cr-00389-DCG Document 92 Filed 07/24/20 Page 16 of 17
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Kathleen McGuire Louis E. Lopez, Jr. 

Colorado Bar No. 24686 Texas Bar No. 00787923 

The McGuire Law Office, LLC Attorney at Law 

P.O. Box 2008 416 N. Stanton Fourth Floor, Suite 400 

Littleton, CO 80161 El Paso, TX 79901 

Tel: 303-921-9983 Tel: 915-543-9800 

Facsimile: 720-306-7165 Facsimile: 915-543-9804 

Email: kmcguire@kathleenmcguirelaw.com Email: llopez@lelopezlaw.com 

Attorneys for Mr. Patrick Crusius 

 CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on the 24th day of July 2020, I caused the foregoing 

REPLY and its EXHIBIT to be filed with the Clerk of the Court using the CM/ECF system 

that will serve all other parties entitled to service and notice. 

/s/ Cori A. Harbour-Valdez 

 Cori Harbour-Valdez

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