Top prosecutors leave local DA’s office in post-election churn

The McLennan County Courthouse. (Photo by Paul J. Gately/file)
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WACO, Texas (KWTX) The first assistant district attorney and another felony prosecutor, both of whom made up a significant portion of the McLennan County District Attorney’s Twin Peaks trial team, announced Tuesday they are leaving the office in a post-election churn following District Attorney Abel Reyna’s loss to challenger Barry Johnson in the March Republican Primary.

Johnson won with 60 percent of the vote.

First Assistant District Attorney Michael Jarrett announced Tuesday he's taken a job with the Texas Farm Bureau and prosecutor Brodie Burks will move to Austin and work the governor's office and advise on criminal justice issues.

Jarrett, the lead prosecutor in the only Twin Peaks case to go to trial, and Burks, who helped prosecute Christopher Jacob Carrizal, both have participated in preparing Twin Peaks cases for prosecution since the district attorney began taking the cases to court.

The Carrizal case ended in a mistrial and is set for re-trial, but Jarrett likely won't be around to try it.

Burks goes to work for Gov. Greg Abbott on May 1.

Jarrett has served as first assistant since he came to the office in 2011 when District Attorney Abel Reyna was elected.

Jarrett had previously prosecuted cases in Dallas and Williamson counties.

Reyna, Jarrett, Burks and assistant DA Amanda Dillion prosecuted the Carrizal case last November.

With Jarrett and Burks leaving, there was no word on who would lead the remaining Twin Peaks prosecutions.

Burks came to work for Reyna in 2017.

Phone calls Tuesday to Reyna were not returned.

Prosecutor terminated after the election

Two weeks ago Reyna terminated his 19th District Court felony chief prosecutor Aubrey Robertson.

The termination came after Reyna learned Robertson had been talking with Johnson.

Robertson, who was featured prominently in Reyna's campaign television ads, was paid $85,902, the budgeted salary for a court chief, according to the most recent salary scale posted on the county's website.

For his part, Johnson has said the meeting, in Robertson's courthouse complex office, dealt with certain paperwork that he needed to complete and Robertson provided the documents to Johnson for execution.

Johnson said there was no conversation of a political nature, at all.

Someone inside the DA's office on the day Robertson was terminated sent a text to a former assistant DA about the firing, which that person later shared with KWTX.

The text said the accusation of insubordination revolved around a comment Robertson was said to have made in 19th District Court, but it was not specific about what the comment was.

As well, the text said the charge had to do with two case files that Robertson had reviewed that were not assigned to him, although as chief prosecutor in a district court, he wouldn't have needed authorization.

Nineteenth District Court Judge Ralph Strother made no complaint to Reyna about Robertson.

A number of staffers have fallen by the roadside

Robertson remains merely the most recent to fall by the Reyna roadside, illuminated in past months through a series of court hearings and other issues that now see former employees accusing Reyna of inappropriate or unethical conduct.

The list of former staff members includes attorneys Greg Davis, Joe Flynn, Angel Mata, Lauren McLeod, Beth Toben, Michelle Voirin, Joe Layman, Robert Callahan, Nancy Harrison, J.R. Vicha, Landon Ramsay, Brandon Luce, Chris Bullajian, Brittany (Lanning) Scaramucci, Andrew Erwin, Alex Bell, Liz Buice, Kimberly Lucas, Erin Toolan, Michael Sheets, Bryan Bufkin and Robertson.

Others include former office staff members Dede Gordon, Julie Olajarski, Steve January, Lori Vernon, Cinnamon Merrit, Mark Ledger, Ashley Windham, Amy Kuznarik, Julissa West, Montea Stewart, Don Marshall, Mark Gosselin and Lynette Barbera.

Bryan Bufkin resigned his assistant district attorney's job after just one day.

Because the McLennan County DA’s office is considered a criminal district attorney's office, there is no county attorney's office which normally would handle misdemeanors and those cases are prosecuted by the DA's misdemeanor staff.

Reyna's staff is responsible for prosecuting everything from hot checks to capital murders, and for dealing with appeals on all those convictions, should they be filed.

The McLennan County DA's office has a total staff of about 60 employees, about half of them lawyers.

A loss of 35 employees, over that period of time, establishes an employee turnover rate higher than 50 percent.

McLennan County, at 235,941 residents, ranks 21st of 254 Texas counties in population size, close to Smith, 210,265, Jefferson, 252,454, and Webb, 251,335, counties, according to U.S. Census projections for 2016 based upon the 2010 census.

Payroll in the McLennan County DA's office amounted to $3,099,706 in 2015, out of a total budget of $4,249,912, the latest numbers posted on the county auditor's website say.

The total budget climbed to $5,008,202 in 2017, a budget increase of more than $750,000 over two years, a little more than 15 percent.

Jefferson, the next closest in size to McLennan, posted DA's expenditures for FY 2015 at 4,186,818, Webb County paid $4,392,241 and Smith County's DA the budget totaled $4,183,648, yet all of those counties have county attorney's offices to handle misdemeanors, unlike McLennan, which allows those offices to focus on felony prosecutions.

Some turnover is natural

Reyna's office enjoyed what by any standard would be considered a successful year in 2017, having sent a total of 1,108 people to Huntsville for processing into the state prison system, almost 100-a-month.

Some of those employees who left on Reyna's watch did so for better jobs or higher pay, some because they didn't like the work environment and others were fired, but some who view the situation from the outside say the turnover rate in the DA's office is very high.

Robertson, who spoke with KWTX by phone, said he didn't find the turnover rate out of line and he said he's seen worse.

He came to McLennan County in 2014 after working as an assistant in the Harris County DA's office in Houston.

Young lawyers--Robertson is 32--work in DA's offices because that's where they learn how to try cases, learn how to deal with judges, learn how to interpret the law and learn how to pick and talk to juries, Robertson said.

"The turnover doesn't surprise me much because it's the nature of the work we do," he said.

"We do it because we enjoy it, not for the money," he said.

"You need people who want to come to work and do the job because if you don't have that kind of environment they'll be moving on."

While the turnover rate may seem high, some of the turnover is natural, Greg Davis, former first assistant to Reyna said.

"There is a natural progression in an office like that. Especially when a new boss is elected," Davis said, "because he wants to have his own people in place."

"In Waco, the former first assistant (Crawford Long) retired when Abel was elected and others just wanted to make more money, like Brandon Luce, who left to join practice with his father, who is a long-time Waco lawyer," Davis said.

And some of those who left early on could be attributed to that natural progression, or to young lawyers who just wanted to branch out on their own, but others, maybe not so much.

"It was an ultimatum for me. I was told either resign or get fired," Beth Toben said in a recent telephone interview.

She was a senior prosecutor on the DA's staff when Reyna took office and within three months she was gone.

Toben is a seasoned, well-experienced prosecutor who is responsible for organizing the DA's Crimes Against Children unit and running it for several years.

"I wasn't going to quit because I'm not a quitter, but my husband said I should resign," Toben said, "which was best because I'd have stayed and been miserable there.

"It was extremely unpleasant," she said.

Toben, whose husband is the dean of Baylor Law School, now is a felony prosecutor in Limestone County.

"Both me and Michael (Jarrett, the current 1st Assistant DA) warned Abel about his cronyism, doing favors for political contributors, and we told him he didn't owe anybody anything except to operate his office properly," Davis said.

"I ultimately resigned from the McLennan County District Attorney's Office because it had become apparent to me that despite my warnings and advice, Reyna had no intention of stopping his practice of giving preferential treatment to his campaign supporters and friends," Davis said of his departure.

"I firmly believe that neither politics nor wealth should play any role in prosecutorial decisions and Reyna's actions were completely anti ethical to my beliefs and (to) the oath that all prosecutors take to do justice," Davis said.

"He just refused to listen," Davis said.

Davis, who now is retired in the Dallas area, is said to be the most successful capital murder prosecutor in the State of Texas, having tried more than 20 capital murder cases without a single loss.

In fact, of 22 capital murder trials he's prosecuted, three of them during his three years in McLennan County, he's only failed to get a death sentence from a jury once.

He announced his resignation in a 25-word letter to Reyna dated July 31, 2014, the day after Julissa West, Reyna's long-time personal assistant, walked out.

"We left, pretty much, for the same reason," Davis said.

Abel Changed

Julissa West went to work for Reyna's father, retired 10th Appeals Court Justice Phillipe Reyna, in 1998, she said, about the same time the younger Reyna graduated from Baylor Law School.

Not too long later she went to work for Reyna.

When Reyna won the DA's seat in 2010, she prepared to move with him to his new job, and did, but not for long.

"Everything was fine at first, that first year," West said recently in a telephone interview.

"But then Abel changed, and I don't know why," she said.

"I left because he lied to me and I can't work for someone who isn't honest, I wasn't brought up that way," she said.

West said she confronted Reyna about a specific issue and "he lied to me," she said.

"I just couldn't work for him any more after that."

Davis said West is right, "I liked working in that office for the first year.

"I liked the judges, the other prosecutors, the defense lawyers, the support from law enforcement and just the community, itself," Davis said.

"But after that first year the cronyism and favors for friends started getting worse.

"Abel has deep roots in that community and he felt, in spite of being told differently, that he had an obligation, he felt obliged, to do favors for those people," Davis said.

"I left because I didn't want people to think I approved of what he was doing or condoned it.

"After 25 years (as a prosecutor) I didn't want to have that mark on my reputation," Davis said.

Davis confirmed at one point while he still was in Waco there was talk inside the office, long before Twin Peaks, of Reyna as a candidate for Texas Attorney General.

"I don't know if that was a serious conversation or somebody was being funny, but it was discussed," Davis said.

"Don't get me wrong, I hold no ill will toward Abel," Davis said.

"I truly enjoyed my time in Waco and I appreciate that fact he gave me a job. I just couldn't abide what he was doing."

Attorney Brittany Scaramucci moved to Waco in November 2011 to work as a Crimes Against Children felony prosecutor in Reyna's office, but just two weeks short of her one-year anniversary, she was told resign or get fired.

"I was two years out of law school and I had my dream job," she said, "I was doing exactly what I wanted to do."

"I didn't know anybody in Waco back then and a friend asked me out to lunch," she said.

"I got grilled by my supervisor about who I was going to lunch with and was told I had to be careful who I was seen with because Abel might, or might not, like it," she said.

She said the environment inside the office at the time was caustic.

"All of a sudden I found myself leaving for work and pausing at the door wondering why I was subjecting myself to that workplace," she said.

"I started being very careful who I was being seen with in public," Scaramucci said.

Perhaps the most vocal local lawyer is Robert Callahan, one of the first ousted, even before Reyna took office.

"I supported John Segrest (Reyna's predecessor) because it was the right thing to do," Callahan said, "so I knew I wouldn't have a job come January (2011)."

Callahan said he first met Reyna when he visited the Waco courthouse routinely while a law school student.

Then Callahan said he dealt with Reyna when in 2002 he hired on as an assistant district attorney under Segrest.

"I met with Abel in November after John lost to see if I'd still have a job when he took office and he said he'd be taking the office in a different direction and I wouldn't be needed," Callahan said.

Callahan stayed on the county's payroll until late Janary, 2011, about a month after Reyna came into office.

"The first thing John (Segerest) would say when I asked him a question about a case was 'What's justice,'" Callahan said.

"He was always concerned with doing justice, and there are many factors in doing that, but the job wasn't about doing justice to Abel," Callahan said.

"That's why I started speaking out, because I believe the district attorney isn't first concerned with doing justice, and justice should be their only concern," Callahan said.

Mountain of Twin Peaks cases still pending

The mountain still facing Reyna is the 100-or-so Twin Peaks cases that remain indicted but yet are untried, and the one mistrial reset in April.

An article published in a periodical published by the Texas Criminal Defense Lawyers Association refers to "the continuing saga of the Twin Peaks mas indictments" and says the latest development is that 19th District Judge Ralph Strother asked the Texas Attorney General's office for help disposing of the remaining cases but "the state demurred citing a lack of resources."

Davis was subpoenaed to testify about his connection to the DA's office by one of the attorneys representing a Twin Peaks Massacre client but posturing on both defense and prosecution sides has put off that testimony and none of Davis' comments have been heard in open court.

Reyna directly over saw much of the initial investigation connected to the May 17, 2015 shootout between rival motorcycle gang members outside a Waco restaurant that left nine dead and almost two dozen injured.

Reyna ordered each biker arrested, on what ultimately turned out to be identical affidavits, each with the same charge.

Initially 155 bikers were indicted, most for engaging in organized criminal activity, and the cases began working their ways through courts.

Since the first case went to trial last November and ended in mistrial, a few more than 50 have been dismissed, Reyna has recused himself and his office from a handful and in some cases defense counsel has succeeded in having a judge removed.

What Reyna did in the beginning was improper and "the county is paying a heavy cost for that," Davis said.

But he laid Reyna's current problems on Reyna, himself.

"He broke the first rule a prosecutor learns," Davis said, "you never tell the initial investigators what to do or how to do it."

The sheer massiveness of the Twin Peaks cases as they were initially indicted presented a problem the local prosecutors didn't foresee, either.

That many suspects arrested quickly overloaded the local attorney's abilities to represent them all, which meant many defendants sought, or were appointed, counsel from outside McLennan County, and visiting lawyers don't necessarily play by local rules, Davis said.

"He didn't consider what would happen when he indicted 150 cases because that meant lots of out-of-town, good lawyers coming in to defend those clients and they don't do business like its done in Waco," Davis said.

Local lawyers have to deal with local prosecutors every day and they have to get along with court staff and judges, even when they disagree, to make the justice system work.

"They (visiting lawyers) don't care if they make prosecutors or judges mad because they'll never do business here again," Davis said.

"He (Reyna) just didn't count on that."

Dallas-area attorneys F. Clinton Broden, David Conrad Beyer, Brian Boufford and Chris Lewis and Houston-area lawyer Paul Looney routinely have attracted media attention through a series of court motions, all of which were well staged, aimed at having their respective clients' Twin Peaks cases dismissed.

They, as individuals, filed stacks of motions on various topics over a period of more than two years, each intended to chip away at the state's cases against their clients, and in those cases the tactic worked.

They, and other attorneys both locally and out of town, have filed state and federal lawsuits naming Reyna, the City of Waco, individual police officers and their chiefs, McLennan County, the sheriff and others, none of which have yet been heard.

Reyna charged in his campaign ads that the out-of-town lawyers had ganged up against him and were funding his primary opponent's run to unseat him.

Johnson flatly rejected that.

Johnson sets sights on General Election win

Barry Johnson spoke with KWTX by telephone and outlined his hope to move into the courthouse annex on Jan. 1, 2019.

"The first thing is win the election," Johnson said, who after defeating Reyna in the primary now faces a challenge in the general election next November from Daniel Hare, running as the "conservative independent" for McLennan County District Attorney, if Hare can successfully collect a prescribed number of signatures of voters to avoid paying the required filing fee..

Hare is from Oklahoma City, graduated from the University of Oklahoma with a degree in finance and legal studies and a master's degree in business administration.

He brought his family to Waco in 2003 after he took a position with the Baylor Bear Foundation and while working there earned a degree from Baylor Law School, though he does not practice law.

But Johnson said he's making plans: "If we can do that, then I plan to spend my time in November and December getting to know people in the office and hearing how they think the DA's office can be improved," Johnson said.

"I think there are a lot of talented lawyers on that staff and I'd like for them to stay on," Johnson said.

"It's the DA's job to make sure there is a work environment there where people want to come to work."

KWTX made eight attempts over six days to reach Reyna for comment on this story but none of those telephone calls was returned either by him or his assistant.

One Waco attorney who's been practicing law in the courthouse for more than half-a-century but who asked not to be named said: "One thing's for sure, whoever the district attorney here is on Jan. 1, 2019, it won't be Abel Reyna sitting in that chair."