He believes the forfeiture law should be reformed by changing the state's burden from "preponderance of evidence" to "beyond a reasonable doubt." Until then, he says, law enforcement can grab cars and loot simply through "suspicion and supposition and presumption and hunches."
Plus, he says, the state can rely on the fact that it's often not economical for someone to try to recoup their lost property. But Frye says he's had clients who've fought to get their property back, and if they get far enough along in the discovery process, some prosecutors will start to haggle.
Courtesy of Montgomery County Sheriff's Office
Joshua Lee-Michael Watson was acquitted on criminal charges, but prosecutors still had leverage in civil court.
Courtesy of Montgomery County District Attorney's Office
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"It appears that their policy seems to be to offer you 25 percent of your money back to resolve the case," he says. To Frye, it's "off-putting." Assistant district attorneys morphing into salespeople — rug merchants, bargaining at a bazaar.
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There was bargaining, of sorts, in the Watson case.
When he filed criminal charges against Watson, prosecutor Phil Grant believed the evidence clearly showed Watson wasn't using his assault rifles and fake badges for purely recreational purposes.
"The proximity of the money, the way it was packaged, the fact that it was in a vehicle with a significant amount of steroid-related narcotics — and other narcotics — as well as firearms and police-related gear...we felt that the money was clearly associated with narcotics trafficking," Grant says. He adds, "It's not uncommon to see narcotics traffickers with gear that allows them to impersonate police officers."
But Chris Sharkey, who represented Watson in the criminal case, says, "There was no disagreement that he was the proper owner of all of the firearms and that there was no information connecting any of the firearms to any illegal activity."
Sharkey doesn't believe prosecutors acted in bad faith, saying, "With no slight towards law enforcement or any...state prosecutors, it's just been my experience that they view the world different than civilians do, and that anything that doesn't fit into their template of proper civilian behavior requires quote-unquote further investigation."
By Sharkey's estimation, some of Watson's idiosyncrasies shouldn't be that hard to relate to. So the guy didn't trust banks — so what? Are banks really all that trustworthy these days? In one of his more colorful analogies, Sharkey pointed out that Watson owned a nutritional-supplement store and suggested that it really wasn't uncommon for business owners to carry around large amounts of cash — from daily or weekly sales, for example — in bank deposit bags. How that compares to $33,000 wrapped in tinfoil remains unclear.
Although Grant filed a forfeiture case concurrent with the criminal case, the plan was to wait to see how the trial went. And, of course, it didn't go as expected.
Says Sharkey: "I think the thing that was most offensive to the jury was just the very thought that because somebody's quirky or because their grandpa buries cash in tomato cans in the backyard, that that has to be connected with criminal activity."
While Watson didn't testify, his mom did. Sharkey says her tortured physical condition was immediately obvious to jurors. Here was a woman who clearly required morphine.
"She could barely crawl to the witness stand," Sharkey says.
As stunned as Grant may have been by the jury's decision, he had to respect it. He now had to decide if he should go through with the forfeiture.
Certainly, Grant recognized that the Montgomery County District Attorney's Office had been in forfeiture critics' crosshairs, primarily because of forfeiture funds spent on a margarita blender. (The expenditure was not a complete travesty: The DA's office used the blender in a county fair margarita contest and won first place.)
Civil forfeiture watchdogs have gotten remarkable mileage from the seven-year-old Blender Blunder — even some who've written about the Watson case can't help but suggest that every forfeiture case filed in Montgomery County is suspect. This despite the fact that the DA at the time is no longer in office.
Grant says forfeiture funds go toward law enforcement officers' training and equipment and that the office files regular reports with appropriate county and state offices. He adds, "There are sufficient checks and balances to make sure that the state does not overreach when it comes to these types of offenses."
The Watson case, he believes, was definitely not overreaching. But while the state still had possession of Watson's guns, cash and pills, Grant knew that a loss in the forfeiture case would put guns and money back into the hands of a man he considered to be a dangerous criminal.
Watson was trying to get his property back through his wife: Attorney John Paul Hopkins filed a plea of intervention on her behalf arguing that, as Watson's spouse, she was also an innocent owner. (Hopkins declined to comment for this story.)
So Grant and Hopkins came to an agreement: The state would keep the guns and drugs, Watson would get his cash — with its snazzy tinfoil carrying case — and the state would drop the case.
What remains to be seen is whether Watson will spend any of that money on a new license plate.
craig.malisow@houstonpress.com
