Suits brought yesterday to disbar Baltimore State’s Attorney Marilyn J. Mosby and another against five prosecutors in Indiana raise the troubling question of why McLennan County, Texas District Attorney Abelino Reyna still holds a law license.
There are multiple precedents for disbarring unethical prosecutors. George Washington University law professor John F. Banzhaf III, who brought the Maryland suit, formerly agitated for the prosecution of former Maryland Governor (and United States Vice-President) Spiro T. Agnew and the disbarment of Durham County, NC, district attorney Mike Nifong.
Reyna’s conduct following what he has called “The Battle of Twin Peaks” is drearily reminiscent of Nifong’s. Nifong pursued blatantly false sexual assault charges against three members of the Duke University lacrosse team in 2006. As Banzhaf wrote in a reference to the Duke case in his complaint to the Attorney Grievance Commission of Maryland, Nifong “brought and continued criminal charges even after it became clearer and clearer than there was insufficient evidence to support any convictions. There, like here, there were also statements beyond those permitted by the rules, and also other ethical violations, including withholding evidence.”
Like “The Battle of Twin Peaks,” the Duke rape case attracted media from around the world. And that news coverage, as the New York Times later put it, “conformed too well to too many preconceived notions of too many in the press;” just as local officials in Waco force fed the press a feast of biker stereotypes to explain the arrest of 177 people after a gunfight in the parking lot of the Waco Twin Peaks restaurant that left nine men dead and at least 19 wounded.
Virtually all of those arrested were innocent. The Aging Rebel has extensively investigated the incident and believes that there was probable cause to charge two survivors of the gunfight – a single Bandido and a single Cossack. Other culpable individuals died during or immediately after the brawl. And other participants could have reasonably argued that they acted in self defense. Most of those Reyna arrested had simply tried to take cover or escape. Local, state and federal police had foreknowledge that the confrontation between members of the Bandidos Motorcycle Club and the Cossacks Motorcycle Club was about to occur. There is strong circumstantial evidence that at least one Cossack and one Bandido present at the Twin Peaks were undercover, federal operatives. Four, possibly five, of the dead were killed by police.
Reyna knew all this and initiated an unjust prosecution anyway. His motives in doing so may never be known.
There is precedent for disbarring an unethical prosecutor even in Texas. About a month after Reyna illegally prosecuted scores of victims, the state bar expelled Charles Sebesta for withholding evidence and using false testimony to “win” a conviction against an innocent man named Anthony Graves.
The Maryland suit against Mosby cites five rules of Maryland’s “Lawyer’s Rules of Professional Conduct:” Most obviously Rule 3.8 “which requires that a prosecutor refrain from prosecuting a charge unless it is supported by probable cause” and limits “the content of public statements which prosecutors may permissibly make in connection with criminal proceedings.” The Maryland rules are based on the American Bar Association Rules of Professional Conduct.
The Texas Rules of Professional Conduct differ slightly from the Maryland and national rules but still include a section titled “Rule 3.09 Special Responsibilities of a Prosecutor” that follows the national standard. The first of the special responsibilities to which Reyna was obliged to adhere mandates that he, “refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause.”
That has certainly been the case with Waco.