As if they weren’t busy enough pursuing charges against some 170 suspects in the deadly Twin Peaks shooting, local criminal justice officials also face the question of what to do with their belongings.
Waco police have impounded about 135 motorcycles and 80 cars and trucks from the parking lot where nine people were shot dead on May 17. Police have said the vehicles were needed for evidence.
It’s possible some of the vehicles could be declared illegal contraband associated with a crime, and ownership transferred to the county through a process known as civil forfeiture. The collective value of the vehicles likely exceeds $1 million, assuming typical vehicle values.
As of Friday afternoon, McLennan County District Attorney Abel Reyna had not filed any civil forfeiture notices with the McLennan County district clerk. Reyna declined through a spokesperson to discuss this or any other aspect of the Twin Peaks case.
Waco police also have publicly stated that owners can request their vehicles back by calling the police department at 750-5700. Sgt. W. Patrick Swanton told the Tribune-Herald on Friday that he had no information on any vehicles that may have been released.
“However, if they are not evidence, people are certainly able to come get them,” he said in a text message.
But Reyna is known for aggressive pursuit of civil forfeiture, and defense attorneys are watching his moves in this case where so much property is at stake and so many owners are in jail.
About 170 still jailed
Some 170 people remain in the McLennan County Jail, each on $1 million bond, on charges of engaging in organized criminal activity in the Twin Peaks shooting. But, the arrest warrant affidavits are practically identical and don’t point to any one person’s specific role in the shootings.
“You’re going to have to connect the person to a crime,” said Melanie Walker, a former county prosecutor who is now representing Seth A. Smith of Waco in the Twin Peaks case. “You can’t take someone’s motorcycle just because they’re in . . . a criminal motorcycle gang. You’re going to have to prove that it was an instrumentality of a crime or involved in a crime, not just that it’s how they got there.”
Since 1989, Texas has given government agencies the ability to seize property through a civil lawsuit even if there is no criminal case. The claim is filed not against the owner but the property, such as a bag of cocaine, a speedboat or a sum of cash. One recent Texas lawsuit was styled “U.S. vs. approximately 64,695 pounds of shark fins.”
Chapter 59 of the Texas Code of Criminal Procedure allows prosecutors to claim property that was bought with proceeds from a felony, or that was used in the commission of a felony. Between 2003 and 2012, Texas law enforcement confiscated some $486 million through asset forfeiture, according to a December 2014 report to the Texas Legislature by the Public Policy Research Institute.
Civil forfeitures are “extremely profitable” for district attorneys, who on average spent $702 prosecuting a forfeiture case in return for $15,182 in proceeds, the report states.
Since Reyna took office in 2011 he has boasted of taking more than $1 million of contraband through forfeiture, including cars, computers, eight-liner machines, even fancy hubcaps. He used the process to acquire a 2004 Freightliner trailer-tractor rig that was seized by state troopers in 2011, a truck that ended up with County Commissioner Ben Perry’s precinct.
Reyna’s office uses 30 percent of the proceeds from the forfeitures and shares 70 percent with the agency that seized the goods.
Stan Schwieger, a Waco defense attorney who has fought civil forfeiture cases here, said he sees challenges in using the procedure in the Twin Peaks case. He said state law gives authorities only 30 days to hold a vehicle before a civil forfeiture case is filed. The civil lawsuits would have to definitely tie the property to the commission of a crime, and those cases take time to build, Schwieger said.
“If they allocate manpower toward that, how is that not going to take away from the criminal investigation?” he said.
He said the DA’s office already has a big challenge on its hands in trying to connect 170 people to a murder investigation, and civil forfeiture would require the additional step of tying the vehicles to the crime.
“I don’t know parking a bike on a public parking lot and showing up for a couple of bad wings and some beer, how that renders property to be contraband,” he said.
Waco defense attorney Robert Callahan, who expects to represent some defendants in the Twin Peaks case, noted that the DA’s office could file the lawsuits after the 30-day deadline to return the bikes and cars.
But he said assembling enough evidence to make civil forfeiture cases stick would be a big challenge.
“Just sweeping those vehicles up and saying they’ve been used in criminal activity is going to be a hard sell,” he said.
Callahan said it’s highly unusual to take so many vehicles into evidence as part of a criminal investigation. But this case is anything but usual, he said.
“I’ve been racking my mind to think, even nationally, when there have been that many arrests in a case,” he said. “Whenever you hear of a broad, sweeping arrest, it usually has to do with … mob organizations and federal prosecutions. I don’t know if even in Al Capone’s day we ever got up to 172.”