The Montgomery County, TX District Attorney’s Office declared intention to pursue civil asset forfeiture of a man’s property-immediately following his acquittal on criminal charges. The decision is from the same DA’s Office who gained some fame for purchasing booze and a margarita machine (the DA’s Office won a County Fair prize for best margarita) with asset forfeiture funds:
They had beer, liquor and a margarita machine. The district attorney, Mike McDougal, at first denied that this had been paid for by drug money. He acknowledged that his office had a margarita machine at the fair. In fact, he said, they won first prize for best margarita. But he insisted they came by it fair and square. In any case, he pointed out, the county’s drug fund was at his discretion. Under Texas forfeiture law, counties can keep most of the money and property they rustle up. The Sheriff’s Stash, The Economist, July 10, 2008.
There is nothing wrong with a good time. There is something wrong when prosecutors draw their good time from their discretion to confiscate another’s property (ironically prefaced on theories that someone else intends to use their own property for a good time).
The Montgomery DA’s Office has also spent past asset forfeiture funds on campaign trinkets, golf tournament outings, more staff parties, and salaries (including birthday bonus checks for DA’s Office employees).
Nancy Flake, managing editor of the Courier of Montgomery County, reports on the present controversy:
Prosecutors believe the cash was the result of criminal activity, First Assistant District Attorney Phil Grant said Friday. Jurors in the 221st state District Court of Judge Lisa Michalk found Joshua Lee-Michael Watson, 32, not guilty of money laundering and two counts of possession of a controlled substance, all third-degree felonies.
Watson faced two to 10 years in prison for each count. Jurors deliberated about 3-1/2 hours Wednesday afternoon before acquitting Watson, said Houston attorney Christopher Sharkey, who defended Watson. “The controlled substances were prescriptions belonging to his mother. She testified that she took them because of her severe medical condition,” Sharkey said. “That, together with the circumstances, allowed the jury to determine after picking it apart that he wasn’t guilty of anything.”
A Texas Department of Public Safety trooper stopped the 2004 BMW driven by Watson March 16, 2011, on the Interstate 45 northbound lanes just south of Shepherd Hill Road. When Watson didn’t consent to a search of the car, Precinct 1 Constable’s deputies and a drug dog searched the car, a DPS spokesman previously said.
Officers discovered 10 morphine pills, 20 hydromorphine pills and six weapons, including a .40-caliber pistol, a shotgun and an AK-47. They also found $33,000 in cash wrapped in foil that was placed in a plastic zipper bag, as well as tactical gear similar to that worn by SWAT officers but made of plastic, the DPS spokesman previously said.
Sharkey said officers seized toys, a video game player and other personal property, and the DA’s Office has filed suit to retain the cash, weapons and property. As for the cash, Watson’s wife testified that Watson had received a settlement for a car wreck, Sharkey said, and that Watson and his wife, who own a business in Huntsville, didn’t trust banks and also didn’t want to invest in the stock market.
“They took the cash,” Sharkey said of the seizure of the money. “He wound up having to borrow money to pay his income taxes that year.” Watson’s father testified that Watson was on his way to the family’s farm in Montgomery County, where family members did target shooting.
“Even the state’s witnesses testified there was no issue about ownership of the guns,” Sharkey said. “I was very satisfied the jury was able to see it’s still lawful to have guns and cash without it being indicative of it being criminal activity.”
John Paul Hopkins, the attorney representing Watson in the asset forfeiture lawsuit, said he and the assistant district attorney handling the civil case had agreed to hold off on it until the criminal case had been disposed. “It doesn’t seem fair to me (to go forward with it) if there’s no underlying criminal activity,” Hopkins said.
“We believe, and members of the jury told us they believe,” Grant said, “that the money in the car was the privileged proceeds from criminal activity, so we intend to go through with the lawsuit.” By Nancy Flake, DA’s Office seeks to keep seized cash after Willis man’s acquittal, The Courier of Montgomery County, June 16, 2012.
It seems unlikely that prosecutors would be so keen to prosecute an acquitted man’s assets if prosecutors were without “incentives that are direct, unlimited, and substantial.”
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I wonder if the prosecutors have read art. 59.05(d) of the Texas Code of Criminal Procedure: “…evidence of an acquittal raises a presumption that the property or interest that is the subject of the hearing is nonforfeitable.”