From KWTX 10
WACO, Texas (KWTX) The announcement that a special prosecutor is seeking formal dismissal of a Twin Peaks biker case for lack of probable cause may expose District Attorney Abel Reyna and McLennan County to additional civil liability.
On Monday Brian Roberts, the attorney appointed to prosecute Hewitt resident Matthew Alan Clendennen after Reyna withdrew from the case, filed a dismissal motion in which he said, “After reviewing all the facts, circumstances and evidence, it is the state’s position that no probable cause exists to believe the defendant committed the offense.”
The wording caught the attention of attorneys for others arrested after the May 17, 2015 shootout that left nine bikers dead and 20 more injured.
“I had several of my clients ask me (Wednesday) if (the district attorney) putting that language in the dismissal would have any effect on their cases, and the answer is yes,” Dallas attorney Don Tittle said in a telephone interview.
Tittle said to date there are more than 130 federal civil lawsuits filed naming Reyna, and others, and he is handling about 115 of them.
“The state can put anything they want to in a dismissal, even the moon is made of green cheese, and none of it has to be true,” Tittle said.
But the fact that Monday’s dismissal includes both the language about the lack of probable cause and the fact that the dismissal is sought “with prejudice” is significant.
“With prejudice” means the case cannot be refiled and the defendant cannot be re-charged, Tittle said.
“I think it is very relevant and this can have a significant impact in (the Clendennen) case and maybe in others.”
In early February, 21 Twin Peaks cases were dismissed, but motions filed seeking those dismissals did not include the statements about probable cause or prejudice.
“These dismissals should not be considered an exoneration of the individual defendants or the gangs they belong to,” Reyna said in a statement released at the time.
For those defendants there is no guarantee of expunction, it certainly is not automatic and, according to Reyna’s statement, those individuals remain under suspicion.
“Those dismissals were specifically designed to prevent our clients from being able to automatically expunge their cases,” a local criminal defense attorney who represented one of the bikers indicted but whose case was dismissed this spring, said.
“In a case where a dismissal is based on lack of probable cause, those defendants are entitled to immediate expunction,” the lawyer, who asked she not be identified, said.
But Austin attorney Millie L. Thompson says those defendants with early dismissals may not get their records cleared at all.
Thompson, who represents one of the defendants in a federal civil rights law suit that names Reyna, said because of the way the first dismissals were presented, those cases now are closed and there is no case to file an expunction hearing on so the record will not change.
“Those defendants (the one with early dismissals) will have that record for the rest of their lives,” she said.
She said when the dismissals happened the defense bar was “blindsided, we had no idea that was coming and we had no chance to prepare,” Thompson said.
KWTX obtained a copy of one of the dismissals finalized Feb. 8 which reads: “While probable cause for the defendant’s arrest and prosecution remains, the state is exercising its prosecutorial discretion in dismissing this matter in order to focus its efforts and resources on co-defendants with a higher level of culpability.”