The Reluctant Prosecutor

Is Randy Reynolds the worst district attorney in Texas? Or is he just giving the people of Reeves, Ward, and Loving counties the kind of justice they want?

October 2008By Comments

Randy Reynolds, photographed on August 21, 2008.
Photograph by Van Ditthavong

“There are some men in this world,” Harper Lee wrote in To Kill a Mockingbird, “who were born to do our unpleasant jobs for us.” And there are some who were not. Among this latter group is Randy Reynolds, who for the past dozen years has held the unpleasant job of district attorney for the hardscrabble 143rd Judicial District, which covers the rural West Texas counties of Ward, Reeves, and Loving. During Reynolds’s tenure, peace officers in the 143rd have brought hundreds of cases of drug trafficking, theft, assault, robbery, and sundry other felonies to the district attorney’s office for prosecution, and Reynolds, exercising his discretion as the people’s representative, has declined to prosecute the vast majority of them. He has done this, depending on whom you ask, because he is stupid, or lazy, or trying to save the county money, or simply afraid to get in front of a jury against a defense attorney he thinks might beat him. Some cases seem to disappear altogether, prompting Reeves County sheriff Arnulfo Gomez to direct his deputies to ask for a receipt when they drop off case files, like customers at a dry cleaners. The uglier the case, it seems, the less likely Reynolds is to put somebody in prison. In the past six years, 58 cases of indecency with a child or sexual assault of a child have been referred to his office. Reynolds has obtained a conviction in only one of them: the case of the former sheriff of Loving County, Richard Putnam, who pleaded guilty to molesting a teenager. Reynolds offered him probation.

From the perspective of a criminal, the 143rd is undeniably a good place to commit a felony, though the residents here are no more or less law-abiding than those in any other place in the state. Until the recent surge in the price of oil, most people were looking for a way to get out of this corner of the Permian Basin. The two main towns, Pecos and Monahans, are surrounded by an endless, sunbaked plain of creosote and mesquite, bisected by the salty trickle of the Pecos River, and dotted with hapless cattle and abandoned pump jacks. Those who’ve chosen to stick it out, about 20,000 souls, have all the usual vices, plus perhaps a few endemic to West Texas, like hauling huge loads of dope east along Interstate 20 in rickety tractor trailers or hiding fat footballs of duct-taped cash in the door panels of their westbound F-150s. “We do lots of cases, especially with dope smuggling,” Sheriff Gomez said, “but they don’t get prosecuted.” The sheriff’s office is barely a mile from Reynolds’s office in Pecos, but Gomez said the district attorney rarely darkens his door.

In the summer of 2005, Reynolds crossed the wrong cop. A Texas Ranger named Brian Burzynski brought in a particularly bad case—two high-ranking officials at a Texas Youth Commission prison facility in the Ward County town of Pyote were accused of molesting a number of boys and young men in their custody over an extended period. Burzynski had put together a solid investigation, which included a partial confession and DNA samples, but Reynolds sat on the case for more than a year, until the story broke statewide in the papers, at which point the formerly anonymous prosecutor got his fifteen minutes of fame in the worst possible way. After Burzynski gave an emotional plea on behalf of the victims at a hearing at the Capitol in March 2007, legislators began lining up to bash Reynolds. The Associated Press piled on, reporting that, according to court records, he had declined to prosecute more than 80 percent of the cases brought to his office over a two-year period. (The average Texas prosecutor had declined to prosecute 18 percent during the same period, the AP reported.)

Politically speaking, the timing could hardly have been worse for Reynolds, who had to file for reelection in the Democratic party primary the following spring. His opponent, Kevin Acker, the misdemeanor prosecutor in Ward County, hammered Reynolds on the Pyote case and a litany of other alleged failings. The result was one of the least reported but most impressive comeback stories of the election season: Reynolds won in a landslide. With no opposition in the general election, he will begin a new four-year term this January. Which brings us back to the conundrum Governor Rick Perry identified in the wake of the Pyote scandal: “Why in the hell is this local prosecutor still in office?” Now that the voters of the 143rd have spoken, a better question might be, What exactly do people in this part of West Texas look for when they pick a prosecutor? Or, even better, When we ask a prosecutor to “see that justice is done,” as the Texas Code of Criminal Procedure requires each of our district attorneys to do, what do we really mean?

Reynolds does not have an office in any of the three courthouses in his district. Until this year, the 143rd district attorney was a position held part-time, as in many rural parts of Texas, by a lawyer with a private practice on the side. In the wake of the Pyote scandal, the Legislature made the 143rd a full-time position and forced Reynolds to give up his law practice. When I visited him this summer, however, he was still running the DA’s office as he always had, from his law office in Pecos, a modest brick building with a depressing coat of brown paint on a lot piled with gravel and construction debris. Reynolds was born and raised in Pecos, the seat of Reeves County, which is to Monahans, the seat of neighboring Ward County, as Odessa is to Midland: slightly seedier, with fewer high school graduates and a much larger Hispanic population. In far-flung Pecos, most of the action—family-owned Mexican restaurants, a rodeo grounds, and convenience stores packed to the rafters with cases of Bud Light—is strung along a wide stretch of U.S. highway. Downtown is quiet, with lots that are too big and often empty, devoid even of weeds in this northern reach of the vast Chihuahuan Desert. In Monahans, which has a charming old downtown area and a pleasant, tree-lined park behind the courthouse, you can at least drive thirty minutes east into Odessa to see a movie or go to the mall. Neither town is Mayberry, however; rough-and-tumble oil-field culture predominates, and—especially these days—there are always plenty of restless young men in town, roughnecking during the day and looking to blow off steam at night.

Reynolds, who is fifty, was a starting halfback in high school, though he is now shaped more like a lineman, with a receding hairline and a jowly smile. Practicing law has been a second career for Reynolds, who dropped out of Abilene Christian University to enter the Texas Department of Public Safety Academy at the age of twenty, eventually becoming one of the youngest troopers in the state. Reynolds had dreamed of being a state trooper since he was a kid, reading books about the legendary lawmen of Texas. “I went down to sign up when I was eighteen, but you needed sixty hours of college credit,” he said. He later ran a motorcycle dealership with his dad, who was an orthodontist by trade, and served for a while on the Pecos police force. In 1988 he applied to law school and, though he had never completed his bachelor’s degree, was accepted by Thomas M. Cooley School of Law, in Michigan. He returned to Pecos to open his practice, doing mostly family law and court appointments. Four years later, when the incumbent district attorney announced he would not seek reelection, Reynolds was the only person to file.

This particular morning he was on his way to the Pecos Police Department to discuss a double-murder case, a stabbing of a bar owner and his wife, for which Reynolds planned to file a capital murder charge, the first in recent memory in the area. He wore loose-fitting blue jeans and a short-sleeved button-down with two pens and a pair of reading glasses in the breast pocket. Rural prosecutors rarely seek the death penalty, in part because such cases are so costly for the county, especially if the defendant cannot afford his or her own attorney. But Reynolds, who carried a paperback copy of Criminal Laws of Texas and a bundle of folders and legal pads under his arm, seemed grateful for the opportunity to demonstrate his abilities. “Wouldn’t want you to think we just sat around all day doing nothing,” he said with a self-deprecating laugh.

Reynolds has no assistant prosecutors; he personally handles every case, aided by three investigators and two secretaries, one in Pecos and the other at a satellite office in Monahans, which is open only half-time. (There is little demand for Reynolds’ services in Loving County, which has a population of less than one hundred.) Jury trials in the 143rd are uncommon—only a few defendants per year decide to take their chances—but when cases do go to trial, Reynolds has not fared well. In a state where acquittals are rare, over the past ten years Reynolds has lost one third of his cases that went to jury trial, including his last murder case, in November 2006.

At the police station, while we waited at a conference table for the meeting to begin, Reynolds showed me some figures, hastily scrawled on the back of what looked like a jury instruction form, that he had put together to refute the AP story on his dismissal rate. Some of the dismissals, he noted, occurred after perpetrators were convicted in other cases. Still, there is no question that Reynolds obtains far fewer convictions than the average Texas prosecutor. Reynolds admitted that he was partial to deferred adjudication, a punishment that is similar to probation but is generally considered a more lenient option, since it does not result in a conviction on a defendant’s record. “I’m always telling my staff, ‘Can we prove it beyond a reasonable doubt?’ And if we can’t, we have to dismiss,” he said.

As we talked, the table was filling up with cops, none of whom said a word as Reynolds defended his record. Reynolds has a good relationship with Pecos police chief Clay McKinney, an old family friend, but he rarely visits the county sheriff’s offices in Pecos or Monahans, where the mention of his name elicits a rueful shake of the head. Later that day, I asked Reeves County sheriff’s deputy Reno Lewis what Reynolds’s penchant for dismissals did for the morale of his officers. “They look at it as, ‘Why do we do this job for nothing?’” he said.

Reynolds’s most vocal critic in the district has been Kevin Acker, the Ward County attorney who tried to have Reynolds removed from office and, when that failed, ran against him last spring. Acker, a short, excitable man in his late forties, talks in the nonstop patter of a used-car dealer and gives the impression of always being on the make. When I first contacted him about Reynolds, he replied, “Bring me a book deal, and we’ll talk,” an offer he repeated at least half a dozen times when we met at his office. He was more than a little bitter about the election, in which he lost not only in Reynolds’s hometown of Pecos but also in Monahans, where he was raised and where, he said, people had encouraged him to run against Reynolds. “It was all blue sky and bullshit,” he said.

In fact, most people I talked to in Monahans and Pecos assumed that Acker would never be elected district attorney, despite Reynolds’s recent troubles. “In politics, you’re only good or bad by comparison,” said Bill Weinacht, a personal-injury attorney in Pecos. “There’s a lot to be said for being a nice guy who gets along with people.” Acker is not a popular person in Monahans, and he seems to know it. “When I moved back, they were all, ‘Oh, Kevin, you’re so wonderful—nobody ever moves back. You should get in Rotary, you should run for office,’” Acker said. “But after a while, it was like, ‘You shouldn’t have bought that brick house. You shouldn’t have bought that Bonneville. Why didn’t you get a truck?’” His pretensions notwithstanding, misconduct in his private practice has hurt Acker’s reputation more than anything else. He was placed on a probated suspension by the State Bar of Texas in 1998 for mismanaging a trust fund for a client in Monahans.

Reynolds, by contrast, comes from a well-loved and respected family in Pecos and is considered an all-around nice guy. Weinacht repeated a story that I heard many times and that almost everybody in Pecos knows, which is that Reynolds has spent a good deal of his time in recent years taking care of his wife, who had a debilitating stroke in 2003. “He loves his wife, he goes to church, he was a good football player,” Weinacht said. “In a small town you base your vote more on your personal knowledge of a candidate than on somebody else’s objective analysis of his competence.”

Reynolds is also widely thought to be honest and aboveboard, unusually refreshing qualities in a district that has seen a series of prosecutors skip town over the years under hazy circumstances. Acker, who has been county attorney since 1994, inherited the job after the resignation of an even less popular attorney named Ted Painter, whose serial abuse of his private-practice clients resulted in his being disbarred. The man widely regarded as the best defense attorney in either county is Hal Upchurch, who served as district attorney for a few years in the early nineties until he was forced to resign after being indicted in connection with a corruption investigation of the local drug task force. Upchurch wound up with a six-month sentence for a misdemeanor conviction. When he came home to Monahans, he promptly reopened his private practice and, after waiting a decent interval, attempted to get his old job back from Reynolds. He lost narrowly in an election that split along hometown lines. The tenure of Reynolds’s immediate predecessor, John Stickels, was marked by controversy as well. His career went south after he tussled with the commander of the drug task force, whom he later sued for libel and won, but not before defense attorneys subpoenaed his medical records in a scurrilous attempt to portray him as a suicidal alcoholic who could not do his job. Whatever else might be said about Reynolds, in a district where voters have learned not to expect too much from their public officials, he has at least brought some stability to the office.

It may also be the case, as several locals told me, that residents in the 143rd District—and particularly those in Reeves County—have a different notion of justice than most Texans, and that many people here simply like the way Reynolds does his job. He is in many ways the polar opposite of the quintessential Texas DA, the self-righteous crusader personified for a generation by former Harris County prosecutor Johnny Holmes, who made a career out of nailing even small-time crooks to the wall. “That’s not how you get elected in Reeves County,” said Stickels, who is now an assistant professor at the University of Texas at Arlington and an advocate for criminal justice reform. Attitudes about law and order in Reeves County are informed by a blend of cowboy culture, with its disdain for authority and reverence for individual rights, and Mexican culture, in which a tradition of professional law enforcement is not well established. “It’s a border county that is not on the border,” said Jon Fulbright, the managing editor of the Pecos Enterprise. Though the chamber of commerce still clings to the town’s celebrated cowboy heritage, most residents of Pecos, which is 80 percent Hispanic, are second- or third-generation descendants of Mexican immigrant farmworkers, who have historically viewed law enforcement on both sides of the border with suspicion. It’s no secret that it’s hard to get a conviction, or even an indictment, from a Reeves County jury. This seems to be especially true for certain types of crimes: There has not been a single jury trial for sexual assault of an adult in the past ten years in Reeves County; in fact, only two rapes have been referred to Reynolds’s office for prosecution in that period. “I had a fourteen-year-old mentally retarded girl who said her brother-in-law held her down and raped her,” said Stickels. “I mean, he gave her chlamydia. It was an easy case to prove.” Not guilty.

Residents also tend to take a pragmatic view of drug trafficking in the 143rd District, where smuggling has been a fact of life since before Texas was a state. That goes for law enforcement as well. Reynolds’s office is funded in part by the Mexican drug cartels, whose couriers are regularly intercepted heading west along the interstate, bound for Mexico and loaded with cash. In the 143rd District, most of the seizures are made by a golden goose named Kevin Roberts, a Reeves County sheriff’s deputy who spends all day on the interstate and has never failed to find at least a couple hundred thousand dollars per year, which is split between the county sheriff’s office and Reynolds’s office. (Civil dockets in places like Pecos are always full of asset-forfeiture cases, styled with odd-sounding names like The State of Texas v. $153,200 and a green Chevy Tahoe. In many such busts, no criminal conviction is ever obtained.) If Roberts ever flew the coop, Reynolds said, he would have to lay off his investigators, at least until somebody else with his nose for dirty money could be found.

When I told Reynolds how one Pecos resident summed up his reelection—“He appealed to the good people in Monahans and the bad people over here”—he scoffed, though he did admit there were some unique challenges in Reeves County. “We are primarily a Democratic county, we have been a depressed county for a long time, and we have a lot of people on public assistance. So you’ve got a different makeup of a jury here. And it takes twelve to convict.” He paused. “I’d like to think they elected me to do my job rather than to not do it,” he said.

On more than one occasion during our interview, Reynolds suggested that much more damage had been done over the years by overzealous prosecutors than by unmotivated ones. He mentioned the recent string of DNA exonerations in Dallas and the challenge that new Dallas district attorney Craig Watkins faces in undoing the reputation for unfairness that his predecessors have built. “My job is not to get convictions but to seek justice—that’s in the code,” he said.

Still, there is something undeniably self-serving about Reynolds’s professed reverence for the prosecutor’s oath. Seeking justice for what happened to the young men at the youth prison in Pyote called not for discretion but for diligence—in the face of something most people would prefer to pretend didn’t exist. Reynolds, who declined to talk about the Pyote case until the prosecution of the two defendants (which is now being handled by the attorney general’s office) was complete, has said in the past that he intended to bring the cases before a grand jury eventually. But while Reynolds waited, one of the alleged perpetrators had already moved on to a position as a principal at a charter school, where he was surrounded every day by students the same age as his alleged victims at Pyote. And there have been other cases that failed to make headlines but were just as ugly. Prior to the sex-abuse scandal, a young man at Pyote claimed he was attacked by a group of fellow inmates and sodomized with a broom handle. After Reynolds failed to take action, Kevin Acker took up the case and succeeded in getting the accused certified to stand trial as adults. Reynolds failed to get the grand jury to indict. As Reeves County sheriff Arnulfo Gomez put it, “Harm has been done.”

The bottom line for voters in the 143rd District is that they may be stuck with Reynolds for a while. One-hundred-dollar-a-barrel oil has brought many things back to this region—new motels, fast-food chains, drilling rigs, roughnecks, landmen—but attorneys are not among them. The State Bar of Texas lists only seven lawyers in Monahans. One of them is dead, one is disbarred, one is the district judge, and one is the county judge. Of the eleven listed in Pecos, there are only four still practicing, leaving aside Reynolds, the county attorney, and the county court-at-law judge. There are simply not that many people around who are qualified, much less willing, to do Reynolds’s job.

One person who probably could have beaten Reynolds is a comely and engaging 27-year-old Pecos attorney named Alva Alvarez, who returned to her hometown in 2006 after four years at Harvard and three at the University of Texas School of Law. Alvarez, who interned with Ronnie Earle, the progressive Austin district attorney, and sports an “Obama, Si Se Puede” bumper sticker on her car, is the first person in her family to go to college. In her law school application essay, she wrote about her desire to do something for the hardworking people of her hometown—people like her father, who drives an oil-field services truck, and her mother, a teacher’s aide who emigrated from Mexico at the age of 12. She got the opportunity to serve sooner than she expected: Shortly after her return, Reeves County attorney Luis Carrasco was indicted for theft. A 91-year-old former state legislator who had never practiced law filled in until Alvarez could get up to speed and take over the position.

She has gotten great reviews as county attorney. “Alva won’t back down from anybody. She has been a tremendous help to us,” Sheriff Gomez said. But county attorney is a part-time job, which allows Alvarez to keep her newly minted law practice going. “In a small town you end up doing a variety of cases,” she said. “I enjoy helping people.” She would have to give all that up if she became district attorney, now that the Legislature has made the position a full-time job. Then there is the question of money—the best attorneys in Pecos and Monahans can earn more than the $125,000 Reynolds makes as DA, Alvarez said. In effect, the Legislature has actually made it less likely—not more likely—that the best and the brightest in the 143rd District will throw their hats in the ring someday to replace Reynolds.

Even when pressed, Alvarez wouldn’t say anything bad about Reynolds. “He’s our hometown boy, and ever since we were little kids,” she said, “we were taught to root for our hometown.” But she had taken the time to clip out the article with the governor’s quote about Reynolds. Pulling it out of her desk drawer, she looked at it and smiled at the irony of what the powers that be in Austin had done in their anger over the Pyote scandal. “They gave him the job for life,” she said.

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