Murder trial in Waco ‘trap’ house killing postponed after McLennan County DA is disqualified for alleged prosecutorial misconduct

Kevin Darnell Walsh, 24, initially was indicted on a capital murder charge. However, he was...
Kevin Darnell Walsh, 24, initially was indicted on a capital murder charge. However, he was re-indicted in April on murder and aggravated robbery charges in the February 2020 shooting death of 20-year-old Joangel Ortegon in what police described as a “trap” house, or a residence used to sell drugs, in the 1900 block of Trice Avenue.(Tommy Witherspoon for KWTX)
Published: Oct. 31, 2022 at 6:48 PM CDT
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WACO, Texas (KWTX) - The murder trial of Kevin Darnell Wash was postponed Monday after prosecutors disqualified the McLennan County District Attorney’s Office from the case in the wake of prosecutorial misconduct and official oppression allegations levelled by Wash’s attorney.

Defense attorney Jessi Freud alleged in motions filed Monday morning that Assistant District Attorney Anthony Smith improperly retaliated against at least two witnesses in the Wash case by indicting them after they declined to cooperate in the prosecution of the case.

While 19th State District Judge Thomas West denied the motion, First Assistant District Attorney Sharon Pruitt moved to disqualify the DA’s office in light of the allegations, which could lead to a criminal investigation.

West accepted the disqualification notice and said he will appoint another prosecutor from an outside agency to handle Wash’s case and others associated with the chaotic incident.

Wash, 24, initially was indicted on a capital murder charge. However, he was re-indicted in April on murder and aggravated robbery charges in the February 2020 shooting death of 20-year-old Joangel Ortegon in what police described as a “trap” house, or a residence used to sell drugs, in the 1900 block of Trice Avenue.

Wash was among three people shot during the alleged robbery at the home. Witnesses and victims told police Ortegon and another man were playing video games when Wash and Douglas James came into the home, an arrest affidavit alleges. One of the suspects pulled a gun and said, “You’re not going to like this.”

Ortegon was shot and killed and Carson Elias was shot three times in the foot and leg, according to the affidavit. Wash was shot in the stomach during the altercation and spent about 10 days in the hospital, Freud said. James also was shot.

Wash has spent 989 days in the McLennan County Jail under $1 million bond, and the postponement of his trial likely means he won’t be going to trial until next year, when DA Barry Johnson will be replaced either by Republican Josh Tetens or Democrat Aubrey Robertson.

Robertson, who served a 12-day stint this summer as Johnson’s first assistant district attorney, testified Monday at the pretrial hearing that he was briefed on the Wash case by an office investigator and was told basically that everyone who didn’t cooperate with the office was being indicted.

“When I hear somebody say they are indicting uncooperative witnesses, it smacks of prosecutorial misconduct,” Robertson said. “It is unethical to use a grand jury in such a manner, and it amounts to official oppression.”

Brian Gibson, who was representing Elias on a misdemeanor gun charge at the time, and Cody Cleveland, who now represents him on new felony charges, both testified that Smith acted unethically by implying Elias would receive favorable treatment and possibly immunity if he testified against Wash and then indicting him on manslaughter and evidence tampering charges when he declined to cooperate.

“My feeling was Carson was being retaliated against because he was not saying what Anthony wanted him to say,” Gibson said. “Carson even said, ‘What do you want me to say?’ Anthony was obviously frustrated and upset that day, but I was shocked when Carson was indicted. I have never had something like that happen in 32 years of practicing law.”

Cleveland testified Monday that Smith clearly was dangling the indictment over Elias’ head as “leverage” to get him to cooperate with the DA’s office and testify against Wash. When he refused, Smith sought an indictment against Carson the following week.

“If it was done out of retaliation or for leverage, it would be unethical, no question,” Cleveland said.

The superseding indictment against Wash alleges in Count 1 that he killed Ortegon. Count 2 alleges he caused serious bodily injury to Elias by shooting him while trying to rob him.

The manslaughter indictment against Elias, issued June 9, alleges he “recklessly’ caused the death of Ortegon by shooting him “while shooting at intruders that were there to rob Carson Elias’ house where he sells marihuana.”

The indictments issued in the case portray Elias as a robbery victim who seemingly was acting in self defense against robbers who broke into his home and also as a victim because the Wash indictment alleges Wash shot him. The evidence tampering count alleges Elias destroyed or concealed gun, drugs, money and other evidence from the crime scene.

Freud, who did not oppose the DA’s disqualification motion, said after the hearing that she thinks the DA’s office retaliated against uncooperative witnesses in the case by indicting them.

“While we just alleged prosecutorial misconduct, obviously, that conduct can also, and we do believe does, rise to the level of official oppression, which is a violation of the law,” Freud said. “We put on testimony to ask the court to please remedy that. The court denied our motion. But It looks like after that what happened is the state showed that they clearly have some consciousness of guilt. They know what they have done. They have misused the power of the office to retaliate against people who did not tell them what they wanted to hear and they sought to recuse themselves as a result.”

Johnson said Smith turned in notice on Friday that he will be leaving the office in two weeks. Smith deferred comment on the allegations until after he spoke with Johnson. Later Monday, Johnson said Smith denies the allegations.

“I don’t know the details or the facts of this case and would not go into them anyway because it is a pending case, and now there is going to be a new prosecutor on it,” Johnson said. “I can just say as my knowledge as district attorney is that the indictments were good, the case was ready to be tried this morning and that any allegations regarding prosecutorial misconduct are 100 percent false and lies.

“The fact that they were entertained by the court on the morning of trial is alarming. We should have been able to pick a jury and go forward with this case. I am incensed that anybody would blame a prosecutor for prosecutorial misconduct in order to have a basis of appeal. And that is all that happened, from my understanding,” Johnson said.

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