Family members of those killed and wounded during the 2018 Santa Fe High School mass shooting crowded a Galveston courtroom Thursday for a key hearing.
Defense attorneys are asking for the judge in the case to either recuse himself or be disqualified.
The motions stem from a March hearing when Judge Jeth Jones ordered the charged gunman, Dimitrios Pagourtzis, to undergo an independent evaluation of his competency.
Pagourtzis was first declared incompetent to stand trial in 2019 and doctors at North Texas State Hospital have not been able to restore his competency.
Until his competency is restored, the case against him cannot move forward.
SEE ALSO: Competency of charged Santa Fe gunman sets up legal showdown
Defense attorney Nick Poehl argued at the time Jones issued his order, he did not disclose that he already called the hospital to ask for an independent evaluation, which was completed.
Poehl argued this lack of disclosure and certain comments made by Jones during previous meetings show a bias. Poehl said this is why he filed a motion for Jones to recuse himself. Several sources tell KPRC 2 Investigates that independent evaluation has since determined Pagourtzis remains incompetent at this time.
Poehl followed the motion to recuse with another motion to have Jones disqualified from presiding over the case. Pohel argues prior to becoming a judge, Jones was a law partner of Jared Robinson. Court documents read on the day of the murders Poehl, Robinson, and another attorney, Robert Barfield met with Pagourtzis at the Galveston County Jail.
Poehl said Robinson, who is also now a judge, was brought in because of the potential Pagourtzis would face federal charges and neither he nor Barfield were certified to practice in federal court.
Barfield testified during Thursday’s hearing that confidential information was shared and legal advice was dispensed during an estimated 45-minute-long meeting with Pagourtzis. Court documents read two days after that meeting, Robinson declined to represent Pagourtzis.
Still, Pohel argues this created a conflict for Jones.
Poehl’s motion reads the law is clear: a judge may not preside over a case if they have a prior connection, even tangentially, to a defendant and that defendant was now before the court for the same crime.
Robinson filed an affidavit in response to the motion that reads, “Based on my best recollection, the Defendant did not disclose to me any confidential information concerning his involvement with the shootings, including his mental state prior to or at the time of the shootings.” Robinson further writes that at no time did he enter into an attorney-client relationship with Pagourtzis.
District attorney Jack Roady argued since there was never any contractual agreement between Robinson and Pagourtzis he was not his attorney and, therefore, there is no conflict for Jones. Barfield testified during Thursday’s hearing there was a recording of that jailhouse meeting with Pagourtzis.
Barfield says the recording makes clear confidential information was shared and legal advice dispensed that, under the law, would constitute as an attorney-client privilege.
When Judge Susan Brown and Roady asked why Robinson couldn’t hear that recording to “refresh his memory” and clear up questions about whether confidential information was shared during the jailhouse meeting, Barfield and Pohel said he never asked to hear the recordings when notified of the motion to disqualify.
Poehl also said that the recording is protected by the attorney-client privilege since he and Barfield formerly represent Pagourtzis. Poehl said only Pagourtzis could wave his right to that privilege, but he cannot do that since he remains incompetent.
Roady argued Pohel was trying to “have it both ways.”
Brown then gave Roady seven days to file a response to the defense’s argument. Brown is the presiding judge over a six-county judicial region that includes Galveston County. She said she was not available again until May 8 so there will not be a ruling on these motions before that date.
“I just feel like his attorneys are fighting to keep the status quo,” Flo Rice said after the hearing.
Rice was shot in both legs during the rampage. She and her husband Scot said they are frustrated with another hearing that ended with no resolution.
“We don’t even have any confidence we’re ever going to trial at this point with him being found incompetent,” said Scot Rice.
Some family members of victims and those who survived the attack support Jones’ push for more information about what is being done to restore Pagourtzis’ competency.
“I have asked over and over, ‘What are we talking about? Is he a vegetable? Is he slobbering? Like, what exactly are we talking about? Is he able to communicate?’ And we can’t know none of these things,” said Rosie Stone, whose son Chris Stone was murdered during the mass shooting.
Retired Houston police officer and Santa Fe ISD police officer John Barnes nearly bled to death when a shotgun blast shredded an artery in his arm.
He too supported Jones’ push for more frequent competency evaluations of Pagourtzis.
“I think Judge Jones has at least tried to get someone else to look at the mental competency of this,” said Barnes.
Pagourtzis is committed to the state hospital in up to one-year increments. Poehl said his competency is evaluated constantly by the team of doctors assigned to his case. However, family members argue that they’re left in the dark until they get an annual message that his competency has not yet been restored.
“To me, that’s an injustice to us victims,” said Stone.
There is a third motion pending in this case and also relates to Jones’ March order.
During the March hearing, Jones ordered the director of UTMB’s mental health services, Dr. Joseph Penn, to perform an independent evaluation of Pagourtzis’ competency.
The Texas Attorney General’s Office then filed a motion to vacate that order writing that Jones does not have the authority to order Penn to perform this evaluation because Penn is not a party to the criminal case.
The motion also reads since UTMB provides healthcare to 80% of the state’s prison population, Penn’s employment contract and state policy prohibits him from performing outside competency evaluations.
It is unclear who will rule on this motion, but a decision won’t happen until there is a ruling on the motions to recuse and disqualify.
On the day of the hearing, the Texas Senate unanimously approved a bill that would allow family members of those killed or wounded during the shootings to view certain pieces of evidence, like autopsy reports and video of the police response, prior to trial.
Since the case has not gone to trial, much of the evidence remains shielded from public view. Family members pushed lawmakers to change the law to give them access to this information.
Senate Bill 435 is narrow in scope in that it only grants this access in cases where five or more people have been killed and the defendant has been found incompetent to stand trial.
The measure still has to pass the House before becoming law.
SEE ALSO: Judge accused of bias in Santa Fe High School shooter case
Santa Fe gunman remains incompetent to stand trial, Galveston County DA’s office says
Judge appoints independent party to do competency evaluation in Santa Fe mass shooting case
Santa Fe families fight for answers, new law nearly 5 years after mass shooting
