Waco district attorney Abel Reyna walks off the stage during an announcement concerning the West explosion May 2016. (Photo: Rod Aydelotte/Waco Tribune Herald)
BEFORE he was elected in 2011 to serve as the McLennanCounty district attorney, Abel Reyna represented criminal defense clients for 13 years.
So Reyna, not surprisingly, offers an opinion—or two—about the strategies of a criminal defense lawyer who represents one of the 155 bikers who was indicted based on charges stemming from a May 17, 2015, shootout in the parking lot of a Twin Peaks restaurant in Waco, Texas.
“There is no way in hell I would be a part of those shenanigans,” Reyna said about criminal defense lawyer Clint Broden of Broden & Mickelsen in Dallas.
So what are the “shenanigans” to which Reyna refers? Broden’s client has filed a petition for writ of mandamus, pending before an appeals court, in which he seeks to overturn a trial judge’s ruling against a motion to disqualify Reyna from the bikers’ prosecutions.
In the mandamus petition, Broden, who represents one of the indicted bikers, argues that his client will be denied due process unless Reyna is removed from the case. He alleges that the DA has a “huge” financial interest in the bikers’ prosecutions.
Specifically, some bikers have sued and sought damages from Reyna and the police chief in federal civil court based on allegations that they violated their civil rights.
According to Broden and other defense lawyers who support Broden’s strategy, Reyna will fail to persuade an appellate court, as he did a Waco trial court, that he, as a government official and acting in his official capacity, should be granted immunity in the civil case.
Broden and other defense lawyers argue that Reyna forsook his government official immunity privileges based on how he behaved on the night of the shoot out—allegedly pressing for the arrests of bikers, despite contradictory conclusions reached by the police detectives on the scene.
“I have no doubt that as soon as we get it out of the hometown zoo that is Waco, his behavior at the scene will be viewed as way out of line of the traditional role of a prosecutor,” said Paul Looney about Reyna.
Looney, of Looney & Conrad in Houston, represents a criminal defendant in the Waco biker case, and he supports Broden’s strategy—and even helped develop it—although his own client is not pursuing the disqualification of Reyna.
As a result of the shootout at the Waco Twin Peaks restaurant, nine people died, dozens were injured, and some 177 bikers were arrested. Most of those arrested bikers were charged in what defense lawyers have criticized as “cookie cutter” indictments of engaging in organized crime.
A Slow Road to Justice
For those indicted bikers, justice has been anything but speedy. Although more than 18 months have gone by since their arrests, none of the bikers have had their defenses heard at trial, and 154 of their cases are pending. One case against a biker was dismissed because the defendant died in a motorcycle accident, according to Reyna’s office. The first trial is scheduled to start in April.
At an Aug. 8, 2016 hearing, 54th District Judge Matt Johnson in Waco considered Broden’s client’s motion to disqualify Reyna. Brent Stroman, the former Waco chief of police, and Robert Lanning, an assistant chief of police, testified at the hearing.
Lanning served as acting chief on the night of the massive biker arrests because Stroman was on the East Coast visiting with his family, according testimony at the disqualification hearing.
Lanning told the court that in Storman’s absence, Reyna sought to arrest all the bikers wearing “colors” who were present at the Twin Peaks restaurant, regardless of what specific motorcycle club they belonged.
Initially, Lanning testified that he objected to arresting all those bikers.
“When it first came up, I told Mr. Reyna that if the decision was mine, that we were not going to make the arrests. I didn’t feel comfortable doing that as the acting chief. And he asked that I call the chief. And he said, if you’re not going to make it, will you call the chief and see what his opinion is?”
According to Lanning and Stroman’s testimony, Reyna eventually spoke that evening with Stroman.
At the hearing, a defense lawyer asked Stroman to tell the court if it was correct to conclude that “even though Mr. Reyna couldn’t put the handcuffs on people, it was clear to you that he wanted your department to arrest all these people?”
Stroman replied: “That’s what I—that was what was presented to me.”
According to the mandamus petition, Stroman, although not personally on the scene, ultimately acquiesced to Reyna’s request. Hence, the bikers were arrested and most of them ultimately charged.
For his part at the hearing, Reyna, when asked if he advocated for the arrests, told the court: “I don’t know that I did that.”
In an interview with Texas Lawyer for this story, Reyna said about the arrests: “The chief made the call.”
In his client’s mandamus petition, Broden argues, “Mr. Reyna does not enjoy absolute immunity from suit because he was actively involved in the initial investigation and he advised regarding, if not advocated for, the arrests of the motorcyclists. He also involved himself in the investigative phase of the cause prior to a determination of probable cause. As such, Reyna could be personally liable for damages arising out of the false arrests of the motorcyclists and, consequently, his career and financial well-being are in jeopardy. Nevertheless, if Reyna is somehow able to obtain a conviction in this case, he reduces his personal financial exposure for the false arrests for which he advocated.”
In the civil cases bikers have filed against him, Reyna faces possible damages of more than $500,000 and the county, his employer, has not offered him any extended indemnity coverage, Broden states in the mandamus petition.
At the hearing, Reyna’s lawyer Tom Brandt of Dallas’ Fanning Harper Martinson Brandt & Kutchin, argued that if Reyna were disqualified, it would set a dangerous precedent by which every criminal defendant could sue the prosecutor handling his case to get him removed.
Johnson, the trial judge, agreed, ruling to let Reyna remain as the prosecutor on the bikers’ cases. Johnson’s decision prompted Broden’s client to file his mandamus petition shortly before the end of last year.
By mid-January, the state is scheduled to file a response to the mandamus petition against Johnson.
U.S. District Judge Sam Sparks in the Western District of Texas in Austin, who is presiding over the civil case filed by the bikers against Reyna and others, has stayed that litigation until Jan. 16.
At a hearing in May 2016, Sparks sounded frustrated by the layers of unresolved litigation and expressed some skepticism about prosecutors in Waco and their response to the biker shootout. According to an account in the Waco Tribune Herald, based on a transcript, Sparks labeled the potential conflicts between the civil and the criminal cases as a “Catch-22″ situation.
“That’s the reason I called this little powwow,” Sparks said. “Here, we’ve got lawsuits wherein the chief of police, policemen and the district attorney are sued, which would normally mean that I can’t do anything in this case until the criminal case is over. And I noticed in the paper where they’re seeking to disqualify the district attorney, but that won’t eliminate the problem. … So if y’all have any novel way of trying to break up this logjam, I’ll be glad to listen to you, but I don’t see anything until the—somebody comes in outside of Waco to prosecute these cases.” Sparks also sounded displeased with the prosecutors. “It’s been a year, and y’all don’t even know who is going to prosecute these cases, which is inexcusable,” the federal judge said.
For his part, Reyna, who earlier told Texas Lawyer that the defense lawyers’ treatment of him as a target is “flattering,” double-downed on the argument his lawyers made before the trial judge. “ It’s a waste of time and merely an opportunity to acquire free publicity on the part of the criminal defense lawyers,” Reyna said about their strategy to get rid of him. About their arguments that he has a conflict, Reyna said: “I don’t see it at all. They created the conflict.”