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Options limited for replacement prosecutor for Twin Peaks

(Photo by Austin McAfee)
(Photo by Austin McAfee)(KWTX)
Published: Oct. 30, 2017 at 3:35 PM CDT
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Since McLennan County District Attorney Abel Reyna has voluntarily disqualified himself and his office from prosecuting a pending Twin Peaks case, a new prosecutor must be appointed in his place, but who might that be?

Reyna recused himself, and therefore the rest of his office, from prosecuting the state’s case against Matthew Clendennen last week after Clendennen’s lawyer successfully argued Reyna would be called as a witness in his case and under state law, would be prohibited from acting as an attorney in the same case.

Clendennen, of Hewitt, is charged in connection with the May 17, 2015 shootout at Waco’s Twin Peaks Restaurant that left nine dead and more than 20 injured.

Section 2.07 of the Texas Code of Criminal Procedure provides: “(a) Whenever an attorney for the state is disqualified to act in any case or proceeding, … the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the … disqualification of the attorney for the state.

Section 2.07 Para. B goes on to say if the attorney appointed already is a state’s attorney, the special appointment is to be considered part of his regular duties.

But if the attorney appointed is a private or retired attorney, he is to be paid at the same rate as any attorney appointed to defense of an indigent person.

So, someone has to be appointed to prosecute the case for the state, and it can be anyone who is a qualified attorney, not necessarily a prosecutor, but not someone out of Reyna’s office.

Normally 54th District Court Judge Matt Johnson would make that appointment, but in this case, he, too, has recused himself so he may no longer make decisions about the future of the prosecution.

The duty now falls to retired Harris County 220th District Judge Douglas Shaver, who was appointed himself two weeks ago by 3rd Judicial Region administrative Judge Billy Joe Stubblefield, of Georgetown.

The problem is the massive nature of the case, the thousands of pieces of evidence, the thousands of pages of paper and videos and photographs involved in the state’s case is unprecedented.

Clendennen is represented by Dallas attorney F. Clinton Broden, who has been demanding a speedy trial but who now faces as long as two more years in the fight while a new prosecutor comes up to speed on the case.

Reyna has dedicated a staff of lawyers and legal assistants and investigators and office assistants to building his cases against 154 indicted suspects and the process to date has taken more than two years.

So where does the judge look to find a prosecutor who is willing to dedicate a dozen people to reviewing all that evidence again and building a new case against the defendant in that case, a process that easily could last two years, or more?

Short of Harris, Dallas, Tarrant, Travis or Bexar counties, there’s not a DA’s office in Texas that has that kind of staff and not more than just a few private law firms that could offer that kind of help, either.

To date, it’s just one case, but a group of four Waco defense attorneys on Saturday agreed that given’s Reyna’s self-recusal, the Clendennen case is about to be joined by at least dozens of copycats.

All four, who spoke openly but requested anonymity, agreed that beginning Monday there’d be a wave of Twin Peaks defense attorneys lined up to file similar recusal motions and because Reyna volunteered to step aside in this case, there’d be no reason he’d do anything else in the others.

And, all four either represent or have represented, men charged and indicted in the Twin Peaks case.

“I know of at least 30 motions that will be filed first thing Monday morning,” one of the lawyers, a veteran defense attorney and former prosecutor, himself, said.

In fact, the chief of the criminal section of the district clerk’s office told News 10 that three recusal motions naming Reyna had been filed before noon on Monday, one in the 19th and two in the 54th District Court.

Several lawyers, both in the area and across Texas, have joined in at a defense lawyer’s website that provides a forum for them to compare cases and discuss defense strategies.

The list, after Reyna’s announcement last week, was busy all weekend.

In effect, whoever is chosen to represent the State of Texas in the McLennan County cases against bikers indicted in connection with the Twin Peaks shoot out may have to prosecute all 154 of them.

“He’ll (Reyna will) have to go to the (Texas) Attorney General’s office because nobody else can handle this,” another of the veteran defense lawyers said.

The public information spokesman for the attorney general on Monday said he was not aware that the office had been asked to assist McLennan County.