Outgoing district attorney defends performance, work to mitigate effects of ‘500-year flood’

Critics blast recent plea deals as ‘Christmas at the courthouse’
Published: Jun. 29, 2022 at 4:02 PM CDT
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WACO, Texas (KWTX) - There is no question the COVID-19 pandemic had a distinct and debilitating effect on McLennan County’s criminal justice system.

District Attorney Barry Johnson, who took office in January 2019, refers to the pandemic-related shutdown as his office’s “500-year flood.”

Not that long ago, courthouse officials went into mild panics when they discovered a county jail inmate who had been locked up more than 100 days without getting to court.

Now, in the post-COVID era, it’s not unusual to find inmates who have languished in jail more than 1,000 days. At $80 a day per inmate, that adds up quickly, draining county coffers unnecessarily.

Johnson often said during the two-year courthouse shutdown that his team of prosecutors and staff members were working “24-7″ to get their cases prepared so his office could hit the ground running once the choked-down criminal justice system was back up and running full steam ahead.

But while Johnson’s office and the county’s two chief felony court judges have been able to resolve a substantial number of cases through plea bargains since courts have resumed normal operations, many of those offers from the district attorney’s office have many shaking their heads, with some referring to what they believe are the sweetheart deals as “Christmas at the courthouse every day.”

Judge Thomas West and Judge Susan Kelly, who preside over the county’s felony courts, have rejected a number of plea bargains that they deem unacceptably generous and have shaken their heads while accepting others in an attempt to keep their dockets moving and clear pandemic-generated backlogs.

Others note the unusually high number of charges being reduced, outright dismissals and deferred probation offers coming from the DA’s office, including in child molestation cases and other violent felonies.

It’s the major cases not prone to resolution through plea deals that seem to be spinning their wheels. Currently, 58 defendants charged with capital murder or murder are in jail waiting for their day in court. Johnson’s office recently reduced two murder cases to manslaughter and the defendants were sentenced to 10 years and 12 year in prison, respectively.

FULL INTERVIEW WITH DISTRICT ATTORNEY BARRY JOHNSON:

The only capital murder case Johnson’s office has tried ended in the acquittal of five-time convicted felon Keith Spratt in December. Spratt was found not guilty in the alleged 2015 murder-for-hire scheme that left Joshua Ladale Pittman dead.

Johnson’s office later dismissed a 2016 aggravated robbery charge against Spratt and offered him 15 years in prison in exchange for his guilty plea to possession of cocaine with possession of heroin, both with the intent to deliver and both first-degree felonies. He also pleaded guilty in the same deal to evading arrest with a vehicle.

As part of the deal, prosecutors also gave him credit for time served on two misdemeanor charges – indecent exposure and assault – which Spratt picked up during the 2,303 days he spent in the McLennan County Jail. He was given credit for the six years he spent in jail, and officials said he likely will be eligible for parole on the 15-year concurrent prison terms as soon as he gets to prison.

The retrial of Spratt’s co-defendant, Tyler Sherrod Clay, was set for June 27 in Waco’s 54th State District Court. Court documents obtained by KWTX reveal Clay pleaded guilty to a lesser charge of criminal solicitation, a second-degree felony, for his role in the murder of Pittman. That charge was downgraded from criminal solicitation of capital murder.

Clay was convicted in December 2018 of hiring Spratt to kill Pittman, but Waco’s 10th Court of Appeals reversed the conviction in May 2021 and awarded Clay a new trial.

After Clay pleaded guilty to the reduced charge, prosecutors recommended he spend four years and nine months in jail, the time he has been incarcerated. He was given credit for time served and reportedly set free on Monday, June 27.

Johnson’s office also dismissed the capital murder case against Albert Leslie Love Jr., who spent more than three years on death row before his capital murder conviction was overturned in 2017. He spent four years and four months in the county jail waiting for a retrial before Johnson’s office dismissed the case when West refused to grant the DA’s office request for more time to prepare for the case.

Love was convicted in the March 2011 shooting deaths of Keenan Hubert and Tyus Sneed at the former Lakewood Villas apartment complex, 1601 Spring St. Love walked out of the McLennan County Jail a free man five months before Johnson faced Josh Tetens in the March Republican primary. The dismissal of the Love case played a major role in Johnson’s re-election bid and likely contributed to Tetens defeating him 70% to 30%.

Two other high-profile capital murder defendants whose cases are pending include Christopher Paul Weiss, who has been jailed 1,688 days, and Laura Villalon, who has been in jail 752 days. Weiss is charged in the 2017 shooting death of his 1-year-old daughter, Azariah, and the child’s mother, Valarie Martinez 24, at a park at Tradinghouse Creek Reservoir. Villalon is charged with beating her 2-year-old son, Frankie, to death in June 2020 and dumping his body in a trash bin.

Since January, 10 employees have left the DA’s office, including three who left after Johnson’s primary defeat and two who Johnson fired. Johnson’s executive first assistant, Tom Needham, retired in May; First Assistant Nelson Barnes left to prosecute border-related cases in South Texas; and experienced prosecutors Ann Jackson and Randy Dale also left the office. Anthony Smith, among the most experienced prosecutors left in Johnson’s office, has not tried a case since coming to work for Johnson almost four years ago.

There are currently eight positions open in the DA’s office, putting more pressure on those who remain to try to keep the system rolling.

However, with the perceived leniency of many of the plea offers, the frequent requests for major trial postponements, poor communication with law enforcement and the defense bar and lackluster trial performances, including acquittals and a mistrial in a case caught entirely on video, many courthouse officials are wondering aloud if the criminal justice system can survive six more months of Johnson’s leadership in office.

“I think the fact that we ae asking that question is evidence that the person who takes over that office needs the experience of being a prosecutor,” said Aubrey Robertson, the Democratic nominee who will oppose Tetens in the Nov. 8 general election. “That is why I am running for district attorney, because on day one, I can pick up those murder cases and those capital murder cases and get those moving right away.”

Tetens, who gained endorsement from McLennan County’s major law enforcement organizations, said with shootings and other gun-related violent crime on the rise, the community must focus on combating gun violence and make it known that it won’t be tolerated and result in “tough consequences.”

“I hope to do just that by communicating with law enforcement and targeting those who use guns and other threats or violence against our neighbors,” Tetens said. “Our justice community continues to be without a leader that law enforcement can depend on, which is one of the main reasons I ran for DA. I believe that with better communication and utilization of our resources and intelligence, we can and will reduce violent crime in our community.”

At least six criminal defense attorneys declined comment for this story out of fear that the favorable plea bargains they have been negotiating in recent months will dry up out of retribution.

Robertson said his top priority if elected will be to make sure he has experienced prosecutors in key leadership positions.

“You have to make sure you are bringing in people who are ready and able to go on day one,” he said. “More specifically, we have to get our hands around all the murder cases and capital murder cases, because it is my very, very firm belief that if we want to get crime under control in this community, defendants have to be brought to justice more quickly, and they have to know justice will not only be severe, but swift.”

Johnson, 66, who had no criminal law experience when he took office, defended the performance of his office. He said he will leave office in January “with my head held high because I know I did the best I could and I think we have had a successful run.”

He said he regrets the number of murder and capital murder defendants his office left untried, again blaming the COVID shutdown.

“That is a lot and I hate that, but that is kind of how it has turned out,” Johnson said. “It is not because we aren’t working the cases and getting them ready to go to trial, because we are. But when the courts were shut down for two years, that is kind of where it has ended up. I don’t like that but that is how the cards have been dealt.

“Covid was a killer as far as running the DA’s office. Looking back, it was more than a challenge. Once the funnel is cut off, you can only plead so many cases. Thank goodness we had some wonderful citizens and we kept the grand jury going and that kept the criminal justice system going. But the funnel was off. That had a big effect on my term. COVID was my 500-year flood, I guess you could say.”

But it wasn’t just in the felony courts where officials say Johnson’s office fell short. At least one of the three county court-at-law judges expressed frustration over the regularity with which prosecutors have been dismissing the majority of misdemeanor cases on his trial docket since the courts opened back up for jury trials.

Judge Brad Cates admonished prosecutors for dismissing cases on the trial docket on the Friday before a Monday trial was set to begin and for waiting until the 11th hour before sending out witness subpoenas and then claiming they were unavailable.

“This is a trial court, but we don’t seem to be trying any cases, and I find that very frustrating,” Cates said. “An inordinate number are being dismissed on the verge of trial.”

According to court records, prosecutors dismissed 801 misdemeanor cases from Jan. 1, 2022, to June 10, 2022, and have tried 3 misdemeanor cases since jury trials resumed, none of which were in Cates’ court. There have been 16 felony jury trials in two courts since April.

Johnson said he was unaware that his staff was dismissing so many misdemeanor cases, including those on the eve of trial.

Johnson challenged the notion that too many plea offers are lenient.

“I think that is completely wrong,” he said. “It hasn’t been any different than when I stated January of 2019. We make sure the plea bargains are fair and we are doing the best we can in keeping the victims notified about what we are doing. So I disagree with that statement. There haven’t been any giveaways. We haven’t been doing that at all. We are still moving cases and negotiating with defense lawyers. We are doing the best we can and trying the cases we need to try.”

In fact, Johnson said he considers the fairness of his plea agreements a major accomplishment of his office.

“Without question, my best accomplishment has been that everybody has gotten the same deal. We don’t fix cases,” Johnson said. “We don’t give certain people in certain zip codes or certain creeds special deals. Everybody has gotten the same deal, and that has been a lot more difficult in this job than I thought it would be, to tell you the truth. I think we have been fair and done a good job. I couldn’t be more satisfied with the people I have had to work with here. They are good lawyers.”

While Johnson said he hasn’t decided if he will support Tetens or Robertson as his successor, he pledges to help with a smooth transition of power in January.

“I am going to do everything I can from my perspective up here to have a smooth transition and do whatever we can,” he said. “We are already aware of who we hire that either Josh or Aubrey are going to take over and I’m sure they will be bringing their own people in. But as far as the nuts and bolts of what is going on, how to work with HR, and how to deal with forfeitures and CPS and those other areas that are so important, the juvenile area, there are a lot of moving parts. Whatever I can help them with, I will do.”

Johnson said the first thing he plans to do after leaving office is to go fishing. After that, he said, he likely will set up a general law practice in Waco, and possibly handle a few criminal cases.

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