Withholding info as suppression of evidence

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The eyes of David Sirbasku

There is no such thing as justice, in or out of the courtroom. – Clarence Darrow

Six Shooter Junction – It’s not what you know, it’s who you know, and what they can do about it, that really counts.

In Waco, even people who admit their guilt are still capable of being found not guilty when it comes time for the judge to render a verdict. True story.

It happened just the other day in a McLennan County Court-at-Law. A husband and wife, two top employees of Judge Ken Starr, former Solicitor General of the United States and Whitewater Special Prosecutor, the man who now runs Baylor University, walked away free because the special prosecutor in that case had failed in the information against them to allege upon exactly which date their respective offenses occurred.

Both readily admitted their culpability as drunk drivers, but ultimately neither faced a punitive gavel – simply because of who they are and to whom they report for work each morning. The cognoscenti and hoi poloi of Jerusalem-on-the-Brazos cackled, twittered, and belly-laughed their way through a couple of merry days when the world learned of the amazing development – in a town with no real pity or sympathy for drunks behind the wheel, on the job, in the gin mills, or in their own homes, the kind of place where judges routinely throw the book at offenders, take their kids away from them, go off their bond, revoke their probation on the slightest offense, and closely monitor their every word, thought and deed in rehabs, detoxification centers and 12-step recovery meetings.

Seemingly, these two could have mooned the judge, slapped the bailiff, and still received letters of commendation for their troubles, if not the outright beg of their pardon. So it goes.

Truth is, criminal justice in this central Texas town that straddles the Balcones, half situated on the blackland prairie and river bottoms of the Brazos, and half on the high, stony plains of the Edwards Plateau, is as hit or miss as it is across the Rio Bravo – in old Mexico.

The chief difference is that here in Texas, folks always know with what offense they are charged – but only because of a peculiar vagary of American and Texican law in the Code of Criminal Procedure and the U.S. and Texas Constitutions that dictates that it be so – and mainly because the pawn shop operators, check cashing services and other assorted merchants who cater to the untermenschen of the honky tonks and bars, dope houses, street walkers, chop shops, burglary fences, and criminal defense attorneys would not be able to arrange their bail for a big, fine price were it not so. One can wait years in a Mexican jail until the charges are revealed.

In Texas, plea “bargains” are considered as just an agreeable way to end another messy happening at el Palacio de Justicia following an extended stay at the Highway 6 condos, la casa de calaboose.

There is a moral element to all this, one no one seems to recognize. It is a matter of record that Moses was purported to have spent quality time staring into the face of God while he received the Ten Commandments at the summit of Mt. Sinai. “Thou shalt not lie,” said God. He also said, “Thou shalt not bear false witness.” Choose. Neither leave much doubt.

There is one way to consistently win at this game of liar’s poker: DON’T PLAY.

Few ever find their way to that golden shore. Predictably, when it comes to crime and punishment, it’s a business – a bottom line runs through it. Just ask the bond salesmen, underwriters, architects, consultants, wardens and corporate officers; they’ll be glad to tell you. Business is booming. Hard times are here to stay, and the cash just keeps rolling in. (Cue the Rolling Stones’ “Sympathy for the Devil…”)

How could anyone call entering an arrangement called a plea “bargain” any kind of bargain at all, when it’s based on a stinking lie, a lie told against oneself, that the offense committed is actually thus, and so, well, you know. “If you choose the lesser of two evils, you’re still choosing evil,” said Abbie Hoffman, a well-known thorn in the side of the establishment. A former media darling, he ended his days teaching school in his hometown of Worcester, Massachusetts.

And so it’s tragically comical that the McLennan County Sheriff’s Office Supervisor of Records, Tamma Willis, has chosen to withhold a request by Legendary Reporter R.S. Gates for the affidavit for a search warrant, the warrant, and its return, all signed by Judge Ralph Strother at 1:30 pm on January 8, 2013.

Willis has decided that though the warrant has been served long ago, the arrest made, and the man charged and indicted for possession of controlled substances – heroin and methamphetamine – his case is pending in State District Court for possession, and the intentional and knowing offense of attempting to take a controlled substance into the McLennan County Jail, that the material contained in the affidavit and the search warrant is all part of an “ongoing criminal investigation.” Revealing what happened just might screw it up.

Wrong. They are court records. They are subject to discovery by any member of the public, including the defendant himself and his attorneys. But, then, the Criminal District Attorney’s Office has a very strict policy of not allowing discovery materials to get into the hands of attorneys until exactly 21 days prior to a jury trial.

All this has become the subject of a furious appeal and equally steadfast holding by an Assistant Attorney General, that the appeal entered by Gates is defective because he did not sign it. And now, an assistant prosecutor has admitted he did not forward that page to the AG’s office. He will send it along forthwith, etc.

The comical, knee-slapping truth is that Willis, who is famous on Google for being often reproved by AG’s office officials for withholding information previously released to others, actually released the identical information to The Legendary Jim Parks on January 15, 2013, way more than two years previously. Imagine that!

Sirbasku allowed a young woman, a friend who had become homeless, to come to his opulent home just a few doors up the street from the home of Sheriff Parnell McNamara on Rock Creek Dr. in Bosqueville in order to bathe, wash her clothes, and rest up.

When she stayed in the bathroom for an long period, he checked on her and found her dead in the tub, “unresponsive,” in the parlance of officialdom. A deputy who accompanied Emergency Medical Technicians found a full syringe on the wash stand. It field tested positive for methamphetamine, according to affidavits for warrantless arrest turned in on that day. On the third day thereafter, deputies purportedly went back to the house and found him in his bedroom, small quantities of heroin in the bathroom and methamphetamine on his nightstand, according to an arrest report attached. He told Deputy Michael Gates that he was severely addicted to heroin and that he used the methamphetamine to keep from going to sleep.

That information, given so freely at the time, is now the subject of sturm and drang, complete with gargoyles and griffins beckoning from the wings to coax the fat lady to sing – loudly.

Obviously, something has changed. Now there is some reason, some deep, dark reason why no one should know exactly what was recorded at the time of Sirbasku’s arrest.

All this begs the question, why was it permissible under the law – the Texas Code of Criminal Procedure – and the Texas Open Records Act, to release all these gory details on January 15, 2013 – and now it is verboten?

Who cares? Look at the reality of the records that are accessible.

Focussing on all this alone is to say nothing of the companion civil case, People of the State of Texas v. 2011 BMW. Sounds ridiculous, that a beamer could offend against the Peace and Dignity of the People of The State of Texas, no?

Nevertheless, Deputies confiscated the luxury model import auto they found in the driveway the day of Sirbasku’s arrest. They cited the grounds that Sirbasku told them he sometimes let his friends drive it to the drug house to score heroin. Therefore, it became contraband in the case against him, possession with intent to deliver, according to affidavits filed in the case. Authorities also seized a custom-made AR-15 assault rifle that was found in the trunk of the car.

When Sirbasku did not replevy his property and place it under bond, then failed to show up for the hearing, the DA’s office applied for and received a summary judgment .

In the shuffle, he has seen a charge of possession of a controlled substance causing death fall by the wayside.

All good things come to those who wait.

I am sincere.

So mote it be.

– The Legendary Jim Parks

http://downdirtyword.blogspot.com/2013/01/there-is-in-mclennan-county-texas.html

Murder, rape, robbery all about the sex offenses against the peace and dignity of the People of…

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Aggravated rape, aggravated robbery, and the prospect of violent death came through a bedroom window at 518 Dolphin Place, Corpus Christi, Texas, on a work night, Monday, Sept. 17, 1979…

CORPUS CHRISTI – VICKY KORN, 17, was the first to arrive home that evening – at about 9:10 p.m., following her work shift at Padre Staples mall.

The stereo was playing. She switched on the television and sat down to change her shoes, and according to a statement she gave a detective later that night, she began to feel very uncomfortable because she thought she heard whispering in another room.

And then she saw the two-tone baseball cap where it lay on the dining room table.

The cap didn’t belong there. She knew that very well because she had turned the house upside down several weeks earlier looking for a baseball cap to wear on an outing; though she searched high and low, she could not find one.  The sudden recognition with its fleeting thoughts and flash of cognition was the portentous beginning of an evening of terror.

In those moments while she sat there feeling “uncomfortable,” she struggled to decide whether to leave the house. That’s when two men stepped out of hiding into the dining area brandishing pistols; as they approached her from each side, they told her to sit still while they put masking tape over her eyes and led her to a chair in a back corner of the room. During the 10 minutes she sat there, they asked questions about who would be coming home; when a car drove up in the driveway, she said it was either her father, or her mother.

The masked strangers asked which door her father would use, and she said the front; that’s when they told her to keep quiet or they would hurt her. It was the first of many threats leveled at she and other members of her family. When Marvin Korn came in, he called out to see if anyone was at home, and the two invaders ushered him into the living area at gunpoint, where they masked his eyes and made him lay on the floor.

Korn later recalled for police that one intruder wore a camouflage jacket; eerily, both wore pillow cases over their heads.

They asked many questions, all about his place of business, what kind of burglar alarm they would find there, which key unlocked the door and which disarmed the alarm, and they bound him with the kind of ultra-sticky silver air conditioning duct tape most people keep handy, fresh from where they’d found it in his garage.

That’s when Mrs. Annabelle Korn and her 15-year-old son Jeffrey walked in the back door. As the two men robbed her, she recalled for detectives, the duo seemed unsatisfied with the 1.6 carat pear-shaped diamond, the gold 50-peso coin pendant and necklace, $140 in endorsed money orders, and $170 in cash they took from her; they kept asking her for more money.

She told them she would be glad to write them a check.

Of the two Anglos, one was much older, possibly 30 to 40 years of age. She said he pulled up her skirt and shucked her pantyhose down while he fondled her. After he disappeared, the younger man, whom she guessed was about 20, was polite; he courteously pulled her hose back up, then calmly smoothed her skirt back down.

The older Anglo left with the keys to Mr. Korn’s place of business, a pharmacy in Flour Bluff, where he broke in to steal drugs and money.

Everyone recalled that at some point, a third man they perceived as black from the fitful snatches of vision they got through their masking tape blindfolds of his dark complexion and from hearing his heavily accented ghetto patois, mumbled to himself non-stop about the violent prospects the family faced. As the two Anglos reassured them they would not be harmed if they cooperated, he mentioned he ought to kill them all “just for the hell of it.”

Investigators later agreed that this “black” man was actually Anthony Melendez, younger brother of Gilbert Melendez, and a co-defendant of he and David Wayne Spence, who later entered a guilty plea to capital murder and testified against Spence in the ritual torture deaths by knife and the use of his teeth to attack Jill Montgomery, Raylene Rice, and Kenneth Franks in a park at Lake Waco in July, 1982.

For the crimes at the Korn residence, they charged him with aggravated robbery, aggravated rape, and burglary. He was still at large and wanted for his part in the alleged crimes at the Korn residence when Waco police arrested him in 1983. Transferred to the Nueces County Jail at Corpus on the robbey and rape warrant obtained in 1979, he was later overheard by jailhouse snitches in Corpus Christi admitting that he was at Lake Waco when the trio of teenagers were murdered there in July, 1982.

In addition to numerous incisive defensive knife wounds to her hands, arms and fingers, Jill Montgomery also lost the entire nipple of one her breasts in the gnawing attack. Evidence presented at trial convinced jurors that the murderers raped both she and Ms. Rice.

Evidence from the Lake Murders crime scene awaits mitochondrial DNA testing, financed by a freelance author named Frederic Dannen who is under advance contract to publisher Simon & Schuster to produce a book abuut the Lake Murders.

DNA testing paid for by Dannen has exonerated two men who were serving life for the murder of Spence’s mother, Juanita White. Medical examiners and an odontologist testified that Mrs. White had suffered a bite wound on one of her buttocks, said to have been “payback” for Spence’s alleged biting attacks at the Lake.

DNA testing proved by an estimated 1 in 19 billion odds that another suspect who lived in the North Waco neighborhood – right around the corner from Mrs. White’s home – had carried out her murder. Benny Carroll allegedly left her face a “bloody mess” after beating her to death with his fists. He had been previously convicted of the rape of another elderly woman who lived nearby.

Needless to say, among Lake Murders buffs, the Juanita White murder is a serious who-done-it.

A California testing lab is holding the DNA evidence hostage because preparations for a type of testing have already been made; thus the evidentiary material to be tgested is deemed by their attorney to be “work product.”

To further confuse matters, Innocence Project of Texas Vice President Walter Reaves, who is serving as Melendez’ appellate attorney, has enlisted Dannen, the free-lance book author, former “New Yorker” staff writer, and former New York “Times” reporter as a legal assistant in the case. He is thereby subject to the attorney-client privilege rule.

Prosecutors and a forensic odontologist caused jurors in two separate capital murder trials to believe Spence carried out the murderous attack on Ms. Montgomery – the most extensive of the three – as a case of mistaken identity in exchange for half of the proceeds of a $10,000 life insurance policy a store keeper named Mohammed Muneer Deeb had allegedly offered him for the murder-for-hire of another young girl named Gail Kelly; she also lived at the Methodist Home where Ms. Montgomery had lived, as had Kenneth Franks, a beau of Ms. Kelly whom Deeb admittedly fancied as a possible marriage partner who could anchor the Jordanian computer student’s claim on a green card and resident alien status.

MARVIN KORN’S 1979 HOME INVASION ORDEAL ended about 11 p.m., when he realized that he was no longer hearing people moving around, ransacking the house. He called out to ask if they had gone, and after he worked free of his bonds about 11:20, he freed his wife, son, and daughter.

Korn later recalled that the phone rang repeatedly and for minutes at a time during the hour and a half-long invasion, something he speculated must have spooked the attackers and sent them packing. It was a neighbor who became alarmed when no one at the Korn home answered during the hour between 9 and 10, when the family usually reunited after a busy day on a work night.

Mrs. Korn fled to a neighbor’s house across the street, where she called police. When she told them she thought the invaders intended to rob her husband’s drug store, they said the silent alarm had just then begun to ring at headquarters. His children took refuge at another neighbor’s home; while he waited for police, he called yet another neighbor, the family doctor, and requested that he meet them at a local hospital.

According to Sgt. G.R. Lazo, the pharmacist was not really sure how long the home invasion lasted; he was “considerably upset,” and though one assailant had struck him and another had fondled his wife, he showed no real physical evidence of assault.

He told the investigators he really had no idea what, exactly, had happened while he was bound and blind-folded. Nevertheless, the investigator remarked that he seemed especially nervous, ill at ease.

His daughter Vicky, however, suffered a small cut on her “backside” where she had sat on some broken glass on her parents’ bed. The intruders had applied masking tape to the glass, then cut it with a glass cutter in an attempt to keep the shattered glazing material from spreading far and wide.

In a poignant aside, the detective reported that when he first arrived, there were a few drops of blood on her parents’ bed, muddy shoe prints on the window sill, and some glass shards strewn across the bed and floor. The room was a mess, as were the other two bedrooms. Lazo noted that Vicky was dressed in “a hospital gown over which she had some type of night robe.”

“She was cooperative, easy to be interviewed and related the entire story as to the events without much hesitation.” Though he noted that she had been treated with a rape kit, he tactfully stated that her condition was unknown. However, authorities later charged the suspects with aggravated rape. Just like aggravated robbery, it was defined in 1979 as an offense during which the perpetrator has made the victims believe they will be killed or otherwise seriously harmed; the offense is a felony of the first degree, punishable by 5 to 99 years in the penitentiary, a $10,000 fine, or both.

The robbers took a gold ring with 4 sapphire stones from Vicky, which, along with other items of personal adornment, was later found at the home of two brothers, Ronnie and Kenneth Clark. They charged both with the crimes at the Korn home, and later, based on information they obtained in their investigation, obtained an arrest warrant for Anthony Melendez, as well.

Two other Clark brothers, Jeff and Douglas, one of whom worked at Gateway Pharmacy, were interrogated closely. Detectives learned that during the police investigation, they passed along information to their brothers about what they learned police were doing to bring the attackers to justice.

Following his transfer back to Waco to answer for his alleged part in the Lake Murders, Tony Melendez suddenly changed his mind under the continuing interrogation of former Waco Police Sergeant Truman Simons, who had quit his job as a city police officer to take on the entry-level duties of a jailer at the McLennan County Sheriff’s Office. He promised Sheriff Jack Harwell that if he hired him in that slot, he could clear the triple murders at Lake Waco within a week.

Defense attorneys and the defendants David Wayne Spence and Melendez’ brother Gilbert were surprised when he suddenly decided to plead guilty to capital murder and testify against Spence, even though his trial attorneys went on record with his former employer that he had an airtight alibi. They claimed they had evidence that he was on the job at Bryan, Texas, on the Tuesday evening the triple murders at the lake occurred, that his former boss’s payroll records he was painting apartments until Friday evening, when he caught a ride back to Waco.

One may only speculate that, offered his druthers, he chose to plead guilty and go to the penitentiary as a self-convicted capital murderer rather than a convicted home invader, robber and rapist, an offense fraternally considered in the criminal hierarchy to carry a very low social status behind bars – or anywhere else.

His co-defendants are both dead. Spence lost his life to the executioner’s needle; his brother Gilbert Melendez died of AIDS.

The Texas Board of Pardons and Paroles earlier this month announced it has agreed to investigate a petition for executive clemency in order to make a recommendation to Governor Greg Abbott.

Overnight chase nets multiple offender on numerous warrants

Cpl. Ballew & Sgt. Eubank

Corporal Joseph Ballew and Sergeant Chris Eubank

VETERAN COPS PUZZLED BY ARREST AFFIDAVITS

Waco – When a patrol supervisor tried to apprehend a driver for failing to give a proper turn signal, the resulting ultra-violent chase led to the arrest of a one-man crime wave after a lawman’s pistol stopped the getaway car with two flattened tires.

Veteran lawmen are confused by crime reports and affidavits of warrantless arrest filed in the cases. According to one confidential source who has subject matter expertise, the McLennan County Sheriff’s Office policy manual forbids firing at fleeing vehicles.

They cite the fact that the license number of the car was known, and helicopters and other patrol officers from multiple agencies were in pursuit and in radio contact.

In an Attorney General’s Opinion handed down in 2012, access to the department’s policy manual was excepted because the knowledge of policies and procedures by the general public could interfere with ongoing investigations. 

Sheriff’s Office spokesmen are extremely tight-lipped about the car chase, which began in the 2000 block of Crest Drive in Lacy-Lakeview and ended twelve hours later under a cedar tree near the rural Hill County farming community of Aquilla.

Records Supervisor Tamma Willis withheld much of the public information contained in the offense report, seeking an opinion from the Attorney General because the incident is pending further investigation.

When night shift patrol supervisor Sgt. Chris Eubank spotted a blue Cadillac driven by Ryan Richards as he made a turn without showing a turn signal within 100 feet of the intersection, he signaled the driver to stop.

Richards and a passenger named Don Joslin eluded him and headed north as he gave chase at speeds of better than 100 miles per hour, according to an affidavit.

Helicopter patrolmen and law enforcement officers from both counties began to pursue the vehicle along Interstate 35.

Corporal Joseph Ballew took up the chase and followed the Cadillac to a County Road exit near Abbott, where it “crashed,” according to an arrest affidavit. As he approached, the driver accelerated toward him, according to an affidavit filed by Detective Bradley K. Bond. Ballew reportedly emptied his pistol, firing 14 rounds at the vehicle’s tires, flattening two of them. Within several yards, the flattened tires immobilized the vehicle.

The driver and passenger then fled on foot. McLennan County authorities have charged both with evading arrest in a vehicle. A Hill County Sheriff’s officer declined to say whether Richards has been charged with aggravated vehicular assault on a peace officer.

This further puzzles veteran lawmen, who question the motives of an officer in fear for his life who fired at tires when he could have fired his weapon at the driver, and the failure of authorities to immediately charge the driver with attempted murder by auto of a peace officer.

Where is it all going to end?” asked a retired detective.

Joslin was apprehended minutes later about a half mile away, but Richards eluded officers for 12 hours before he was found sitting under a cedar tree near Aquilla, located some miles distant from the scene of the earlier reported vehicular assault near Abbott.

McLennan patrol officers arrested him on outstanding warrants for two counts of violation of a protective order, two counts of possession of controlled a substance, including one for less than a gram of methamphetamine he had in his possession at the time, burglary of a habitation, and evading arrest.

The Lake Murders: Women’s misgivings compelled by sisterhood

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 Waco, Texas – Women who are involved as victims of the brutal torture slayings of three teenagers at a lakeside park say men will never understand. Come back when you are sister, mother, daughter, grand daughter, or neice, they say. It’s a woman to woman thing.

The fact that per capita more Texans are locked up on any given day than any other nation in the world, and with more than 500 executions since 1980 leads the list of places that execute capital criminals for their ill deeds, fails to impress them. You see, if all that led to their safety and security, they would be satisfied. The truth is, they seriously believe that three of the real killers of Jill Montgomery, Raylene Rice, and Kenneth Franks are still living free in neighborhoods both in and near this central Texas city.

Two happenings occurred in rapid succession last week in this complex case that has raised doubts for more than 30 years. Both are signs that the public – including cops and prosecutors – never really bought in to the theories about who did it and why that were sold by the prosecutors and bought by juries in trials held in multiple changed venues.

The only living person convicted for the torture slayings of two young women and a boy, all in their teens, is demanding that his appeals attorney take a more aggressive stance in proving that he was never guilty of the crime for which he entered a plea for the simple reason that his trial attorneys and prosecutors promised him he would receive a short sentence and serve his time at a federal prison.

If he did not, he and the attorney handling his appeals maintain, he would have surely died with an executioner’s needle in his arm. Both his lawyers, and the cops and prosecutors said so. He believed them.

The Texas Board of Pardons and Paroles notified Walter Reaves and the Innocence Project of Texas that their staff will conduct an investigation of his allegations of innocence laid in a clemency petition he wrote in order to make a recommendation to Governor Greg Abbott. (click here to read the petition)

And after 16 years of waiting, Anthony Melendez finally acknowledged to his lawyer that in essence he realizes DNA evidence that could exonerate him is held hostage by a testing firm that refuses to turn specimen over to another firm because it is “work product,” and the simple fact that a New York journalist who has written a book under contract with Simon & Schuster and paid for the testing is acting as a legal assistant to Reaves, subject to attorney-client privilege.

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 Frederic Dannen

Former “New Yorker” staff writer and best-selling author Frederic Dannen (“Hit Men,” Random House) is living in Mexico and claims he has not released his book-length work on the Lake Murders case to Simon & Schuster because of his involvement with the legal case.

Furthermore, abundant evidence exists that Anthony Melendez was not present at the scene of the crime on the day it occurred. His boss told lead investigator Truman Simons and the District Attorney, Vic Feazell, that he and Melendez were painting apartments a hundred miles distant in the city of Bryan on the Tuesday in August, 1982, when the killings took place. He furnished payroll records to corroborate his statement, records which clearly showed Melendez worked from Monday until Friday and lived in a motel there before returning to Waco for the weekend. The lawyer whose voice is captured on the tapes talking about an “air tight” alibi, says so.

Melendez wrote Reaves demanding that 1) he give statements to the media; 2) that he be allowed to talk to media; 3) that he be informed of the whereabouts of DNA samples to be tested; 4) that he be informed if the DNA testing has been funded. Most of all, he wants to know why the samples that could exonerate him have not  been tested after a decade and a half.

In a letter to State Senator Rodney Ellis, he says after serving time for three decades, and after being promised he would do less than 10 years in a federal facility, “I have felt so lost and helpless; I have a group of supporters, however, my attorney once again refuses to answer their questions or do anything to help me.”

In a recent letter, Reaves wrote Melendez to say if he can find another attorney he thinks can do a better job, to go ahead and hire him.

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Walter Reaves

In an interview held long ago in 1992 in a judge’s chambers on the eve of a retrial of Mohammed Muneer Deeb, who was convicted of the murder for hire of Jill Montgomery, a teenaged girl whom Simons believed was actually mistaken for another young woman Deeb allegedly wanted dead, Lt. Truman Simons protested that other Waco cops would doubt his veracity, no matter what he said. Deeb was acquitted after the Texas Court of Criminal Appeals held that testimony offered to that effect was hearsay of a jailhouse snitch who quoted yet another jailhouse snitch not present in the courtroom.  Simons worked for Vic Feazell as a special investigator after he quit his job as a Sergeant on the Waco police force and promised the Sheriff he could clear the crimes in less than a week if he was hired as an entry level jailer. It was not a happy day for him as the lawyers hammered out where the retrial would take place. What with suppression of the hearsay testimony, the verdict of acquittal was a foregone conclusion, the upcoming trial a mere formality.

Feazell faced federal prosecution under the RICO statutes for accepting bribes to trade with members of the defense bar to share in their legal fees in exchange for dropping cases or pleading offenses down to misdemeanors. After his acquittal, he won a judgment against a Dallas television station for $40 million in punitive damages and $18 million in actual damages, later settled  out of court for a reportedly much smaller amount.

In a bizarre twist, the U.S. Attorney for the Western District of Texas offered famed Dallas criminal defense lawyer Billy Ravkind a chance to see his client Dick Kettler plead guilty to a lesser charge carrying a maximum sentence of 3 years and a $5,000 fine in a tax dispute in exchange for his testimony against Feazell and his wife Bernadette about fee sharing and bribery “to influence the disposition of criminal cases in McLennan County, Texas, any crimes arising out of that conspiracy and any tax violation except as agreed above for the years 1981 through 1984.”

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Former DA Vic Feazell and Lt. Truman Simons

In an audiofile obtained from a confidential source of a taped meeting between the DA, Melendez’ trial lawyer Jim Barlow, Truman Simons, and Melendez, the quid pro quo worked out for a guilty plea to capital murder is clearly to be heard.  In exchange for a sentence of 10 years or less to be served in a federal correctional facility, Melendez is to testify against David Wayne Spence, who was later executed for two of the killings. He allegedly completely severed Ms. Montgomery’s nipple from her breast with his teeth.

Critics say there is clear-cut and abundant evidence that someone else committed the murders, but witnesses who saw the youngsters leave with other actors are afraid to come forward, and exculpatory evidence has been mishandled, destroyed,  or withheld, according to the clemency petition.

The new Michael Morton law that took effect on January 1, 2014, has a statue of limitations that tolls on the 25th anniversary of the convictions. There is no statute of limitations on the crime of murder.

Bitter Bierce’s last trip through the batwings…

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“The Saloon,” est. 1851, 1232 Grant Ave., San Francisco

Through these batwing doors, civil war veteran Ambrose Bierce is said to have disappeared forever, according to certain folklorists of San Francisco. “The Saloon,” 1232 Grant Ave., established in 1851, is the oldest whiskey bar in continuous operation in the City. There are Sunday afternoon blues concerts in its crowded, dimly lit interior, standing room only.

It’s not really true. Bierce left his home in Washington, D.C., in 1913 and crossed the border at El Paso, headed for Chihuahua City where he joined the forces of Pancho Villa as an observer. As a Hearst newsman, he had a checkered post-war career. In one celebrated caper, he publicized in Hearst’s newspapers material about a clandestine effort to cram a bill through Congress during the middle of the night, a measure that would forgive a $130 million low interest government loan to the Union Pacific and Central Pacific Railroads. In today’s dollars the sum is estimated to amount to billions.

Bierce’s articles foiled the plan. Angered, railroad tycoon Collis P. Huntington confronted Bierce on the steps of the U.S. Capitol, encouraging him to “name your price” in hush money – and quit publishing stories about the bill.

Bierce is said to have replied, “My price is one hundred thirty million dollars. If, when you are ready to pay, I happen to be out of town, you may hand it over to my friend, the Treasurer of the United States…”

That was in 1896. More informed historians believe he met his fate in 1913 at the height of the Mexican Revolution before a firing squad in a rural graveyard in Coahuila… His short story, “An Occurrence at Owl Creek Bridge,” is one of the most fabled tales of the War of Northern Aggression. It involves a universal theme of human horror, the fear of falling; critics believe the Alfred Hitchcock film, “Vertigo,” is based on the theme, the author of the screenplay influenced by Bierce’s tale. http://www.online-literature.com/bierce/175/

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“Bitter” Ambrose Bierce, founding member of The Bohemian Club

Complaint: affidavit withheld illegally in drug case warrant

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Forty-Niner Indian Chief with backdrop of Declaration, U.S. Constitution (double click image for full-frame photo)

Waco – Sheriff Parnell McNamara withheld public information not covered by the Texas Open Records Act, (Sect. 552 Texas Government Code), according to a complaint filed with the McLennan County Criminal District Attorney.

In the 2013 drug case against David Sirbasku, a warrant of search and arrest alleged possession of a controlled substance, heroin, leading to an indictment for delivery of a controlled substance – less than one gram, and intentionally and knowingly attempting to take a controlled substance into the McLennan County Jail.

State v. Sirbasku, Cause No. 2013-1655-C1

Three days earlier, Sirbasku phoned emergency medical technicians after he found a girlfriend unresponsive in a tub of tepid bathwater, one empty syringe and one filled resting on the counter top. She was dead on arrival at a local hospital.

When Legendary Reporter R.S. Gates requested a copy of the probable cause affidavit filed with the jail magistrate, McLennan County Sheriff’s Office Records Clerk Tamma Willis demanded an opinion from the Open Records Division of the AG’s office.

Said Gates, “Tamma, the search warrant affidavit and return on Sirbasku are court documents and not subject to an Attorney General opinion.”

Ms. Willis replied, “I know. I told them, but they wanted an Attorney General Opinion.”

The resulting complaint filed with the DA’s office alleges that “Complainant believes the Texas Public Information Act provides for delegation of the release of information, but makes no provision for delegation of liability for violation of the act.”

The Legendary has requested a determination if “the Sheriff…violated the act by denying access to public information in the form of the affidavit, warrant, and return.”

The complaint is directed at a perception that the Sheriff and his clerical staff engage in an ongoing campaign of making administrative law in the absence of due process by withholding timely release of information that is not covered by the Open Records Act, and by the incessant request for opinions of the AG’s office for items that are known to be subject to prompt release under the law.

It is a matter of record that information previously released to other parties, such as mainstream media outlets, is not subject to a legal review, according to past opinions of the Attorney General.

Deputies seized a 2011 BMW and a .223 caliber AR-15 rifle based on an interview with Sirbasku in which he allegedly stated that he let people drive the car to go and get drugs.

State v. 2011 BMW, Cause No. 2013-344-3, 74th Dist. Court

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Blasting the bullet-proof window with paper bombs

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“It’s all personalities; it’s all politics; they’re all whores; and you can’t change the world…” – words of wisdom from a well-known waterfront Don.

SHERIFF’S OFFICE ORDERED TO DETAIL INFO LABOR CHARGES

Six Shooter Junction –  Though members of the “mainstream” media get details on crimes and investigation that reflects today’s news today, social media outlets must wade through the swampy rigamarole of endless bureaucratic hassles for the same information.

The truth is, truth as reflected in public records of public offices is held hostage by officials who refuse to acknowledge the fact that the records are merely under their custody. They don’t own the information. The records belong to We The People Of The State of Texas. When at long last the information is released, it usually has official claw marks all over it.

A case in point is as follows.

A mole in the McLennan County Sheriff’s Office has provided many items of public record previously unknown to outsiders that make clear the degree and severity of disaffection between the two top lawmen – Sheriff Parnell McNamara and former Chief Deputy Matt Cawthon, a retired Texas Ranger – that led to Cawthon’s seemingly sudden resignation at the beginning of the new fiscal year on October 1.

It has come to we of The Legendary that precisely the same information has been provided to other media outlets whose editors simply choose to ignore their contents in favor of more managed news releases provided them by law enforcement simply because of their status as broadcasters and publishers who are supported by merchants who buy advertising space, and public officials who control the flow of information between elections.

Details of previously unknown information received anonymously were corroborated through public information requests, but not without a struggle. At length, through a series of eight simultaneously submitted requests, a pattern of administrative intimidation and harrassment became clear, a pattern of complaints handled through transfers, threatened resignations, and re-hiring in different capacities at similar pay grades. Though in all cases the papers received from the anonymous source are identical to those released by request, it didn’t come easily.

After Records Supervisor Tamma Willis obtained the records from various departments, charged $60 for labor, then turned the records over to a private attorney for legal review, Legendary Reporter R.S. Gates drafted a complaint to newly-elected Texas Attorney General Ken Paxton.

The gist of his complaint is that his request made on January 1, 2015 was answered 4 days later on January 9 with the intelligence that she had turned all the information over to a private atorney:

I don’t think it is a stretch that the information was gathered and sent to the attorney (Mike Dixon) to circumvent the Texas Public Information Act by delaying access to public information…”

The complaint details the fact that though there were eight requests in all, the response was treated as if there only one, that many records were duplicated, and that though the original “ransome” of $136 was later lowered to $60, nevertheless the office did not follow request procedures detailed in the public information handbook published by the AG’s office.

“If a governmental body estimates that charges will exceed $40.00, the governmental body is required to provide the requestor with a written itemized statement of estimated charges before any work is undertaken. (Pg 53 Sec. d)”

The complaint requests the Office of the Attorney General to determine if the Sheriff should pay back the “extortion” money charged as “ransome,” and if so, that it be paid to the McLennan County Sheriff’s Officers Association because “the Sheriff failed to comply with the notification requirements of the act related to providing an estimate prior to the work being performed.”

BUSY WORK LEADS TO MORE BUSY WORK – WITHIN 10 DAYS

The AG’s office ordered Willis to comply within 10 days with its requirements listed on March 6. They are:

  1. How did the Sheriff’s Office determine it required four hours of labor to produce the requested information? Please describe the process in a step by step manner, stating the time each step took…

  1. Where is the information physically located? If the information is located in two or more separate buildings, please provide a simple map showing the location of the buildings…

  1. For the 760 paper copies noted in the cost estimate, please state how many of these copies are responsive to each of the eight requests for information.

  1. For the 40 paper copies provided to the requestor, please state how many of the copies are responsive to each of the eight requests for information.

  1. Did the Sheriff’s Office provide the cost estimate to the requestor before or after locating, compiling and copying the requested information?

 To compare and contrast, it appears that the decisions made in these regards are by and large a function of community standards and political context.

The seizure of a 2011 BMW seized after a drug user died in the bathtub at a mansion located just up the road from Sheriff Parnell McNamara’s home place on Rock Creek Road, Bosqueville, was allegedly based on an interview between Lt. Mike Gates and the homeowner regarding the probable cause of one gram or less of heroin, a Schedule 1 Narcotic.

A public records request gleaned this fact from a probable cause affidavit filed in support of a warrant of search and arrest:

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Click image for original size

Willis refused, and in an appeal requested a ruling from the AG’s Office due to her allegation the matter involves an ongoing investigation. The AG’s office upheld her judgment on the matter, though she is neither a peace officer, nor a criminal prosecutor.

By comparison, extensive requests by members of Open Carry Texas for video and audio recordings involving an internal investigation of a Houston Police Officer accused of improper treatment of a suspect detained for carrying a loaded rifle on a city street were granted over police objections. The AG’s holding is that the recordings are part of an investigation that is eligible for public scrutiny.

C’est la guerre…

There is a there there

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Chinese New Year In The Year of the Goat, chasing the dragon

Gold Mountain (San Francisco) – There are few right angles in the old Swiss American Hotel, North Beach, now called the Green Tortoise Hostel, a relay station in a stage line for backpackers that stretches coast to coast with stops in Austin, Portland, Seattle, Chicago, New York and Boston.

Passengers camp under the stars at scenic spots in national parks and monuments both desert and rocky top, riding an old inter-city diesel bus modified to sleep a dozen or so youthful travelers.

Most angles are either totally obtuse, or extremely acute, and the women wear the form-fitting, very revealing tights affected by yoga devotees on the lower slope of Telegraph Hill where this old building snuggles up to the hard rock cliff on the corner of Kearny and Broadway.

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In the days of Barbary Coast, it was the site of the City Jail, but these days it more resembles a ship at sea with sturdy bunks built of long-nettle yellow pine in a completely wireless electronic redo of an old show biz hotel where horn men and stand-up comedic talent once shared the spotlight with painted ladies and the crowds lined up around the block as more arrived every quarter hour by jetliner.

A committee of angry junkies once threw Lenny Bruce out an upper floor window because they thought he snitched on someone, and the Hungry I and Purple Onion impresario Enrico Banducci’s sidewalk trattoria is across the corner on one of the steepest streets in the world.  The sick comic later destroyed himself in a one-man assault on the obscenity laws of this city, New York, and Chicago, though Allen Ginsberg’s publisher, Lawrence Ferlinghetti of City Lights Books, triumphed in his commitment to market Ginsberg’s epic poem, “Howl,” in the late fifties . It’s all still there; the more The City changes, the more it stays the same.

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These days, international travelers on techie missions throng the Green Tortoise to attend conventions such as the virtual reality design and programming that just concluded in the frighteningly modern SoMa’s (South of Market) Moscone Center, hard by the BART transbay tube station. The world of communication is no longer a telegrapher’s inear scheme, but an ever-expanding, spherical and global techno-world.

There are seminars daily on the danger of losing one’s place in this brave new world and succumbing to an avatar’s role in an all-too-real, yet virtual matrix gone mad. They take place over coffee and confusion in the old hotel’s ballroom. Said Bonnie, a young finance expert from Beijing, “One of the major trips people are on today is the terror of hackers being able to penetrate the UAV net and take over command and control of the rockets and cameras.”

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Verily, most survivors of the murderous terror attack mounted by the U.S. Army psychiatrist,  Maj. Nidal Malik Hasan, at first assumed that it was just another training exercise – until the high-powered bullets bit into their tissue and the blood began to fly. Perhaps the most terrifying aspect of the tale is that Hasan spent his initial enlistment at Ft. Irwin, California – The National Training Center – playing the role of an Arabic-speaking insurgent in real-time training scenarios. He had shouted “Allahu Akbar” many times before beginning a murderous simulated onslaught of gunfire, long before his medical training ever began.

Matthew Nowacki, a veteran virtual reality designer/programmer traveling out of Austin with experience at Disney,  speaks of a conditioning process that will guarantee the overweening success of the discipline in the decades to come. His name is well-known in libertarian circles throughout central Texas.

Nowacki tells of growing up with in the techno-glitter of Austin with  a personal relationship with Google. “I learned early on that Google is my friend – GIMF – in a world of information…”

He concludes his visit by predicting that soon towers, laptops, tablets and phones will become obsolete, replaced by wristwatches that will control all functions, including a virtual perception viewed through wrap-around shades.

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A desk clerk plugs in his phone and pipes stereo of enhanced native drumming accompanied by techno-wizard keyboard effects, and rattles off the name of the collective who travel the world capturing the sounds.

Bonnie concludes that, since it’s often to see across the street in Chinese industrial cities, much less discern the skyline, it could be well to equip people with virtual perception equipment to make it appear that there is no such visual impairment in the atmosphere.

Here’s looking at the Year Of The Goat with an old tune about the Cat:

The Bite

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Waco – There are multiple players in the drama of the murder of Juanita White, mother of David Wayne Spence, who was convicted for the murder-for-hire of the wrong girl, a young woman from the nearby county seat of Waxahachie, who just happened to show up in the right place, at precisely the right time, with a remarkable similarity to the victim prosecutors, police, and jailhouse snitches alleged was his intended for-profit prey.

A spurned lover, Mohammed Muneer Deeb, a convenience store operator who allegedly bargained for the girl’s death with a promise of half the value of a life insurance benefit on the victim, had in a separate trial been convicted on the testimony of a jailhouse snitch who gave jurors a hearsay account of how yet another jailhouse snitch related her son’s bragging about the insurance caper involved, and the brutality of the killings. In frustration, his attorney had finally entered a “running objection” to the entire line of questioning of the witness when the trial judge repeatedly overruled his objections. When the Texas Court of Criminal Appeals held that the testimony was hearsay and thus inadmissible, Deeb received a new trial and was acquitted in a proceeding in which the previous testimonial evidece was suppressed.

Jurors convicted Spence partly on the strength of the expert testimony of a forensic odontologist regarding physical evidence that the mark of his dentition was “consistent” that the bite marks the attacker left on the body of Jill Montgomery – along with numerous slashing defensive wounds made with a knife to her hands and arms, her torso, shoulders and back. A medical examiner’s testimony carried the intelligence that one of Jill Montgomery’s nipples had been incised from her breast, ostensibly by a human bite.

Ms. White is not the least of the players, because just before a night stalker came to her door to beat her to death, raped her, and left her for dead, she contacted the prosecutor’s office with the revelation that yet another jailhouse snitch who testified against her son for the brutal slayings of three teenagers at Lake Waco had come to her begging her forgiveness and prepared to recant his previous testimony.

The bite marks left by a savage attacker in the flesh of the victims is a brightly colored thread that runs through the tangled tales; it bears evidence of the brutality of the series of events that led to her death. After one hears all the stories, the first reaction is to scratch one’s head and ask, “Who done it?”

It is a tale of errors, etched in tears, lit by the blazes of bonfires of terror, as if Old Scratch himself played lead gaffer-for-the day in a sick and twisted Alfred Hitchcock thriller.

A New York “Times” reporter called it a “nightmare investigation,” a “New Yorker” Magazine writer reportedly paid $10,000 out of his own pocket for DNA testing to exonerate the two men who drew life sentences for her murder; both were eventually thereby exonerated, and the state paid large sums in compensation for the years they spent in Texas penitentiaries.

But that was many years after Ms.White approached then-District Attorney Vic Feazell with the story of her encounter with the snitch who testified against her son. Feazell told her the case was in the charge of Truman Simons, a former Waco Police sergeant who worked the crime scene of the triple slayings at the lake, quit his job and took a huge cut in pay to work as a jailer so he could get next to her son as he awaited his turn on the legal treadmill for a knife attack he and a party to the killings of the teenagers had perpetrated on a young boy they forcibly sodomized, and was now the gatekeeper for new evidence in the lake murders case.

Her revelation about the jailhouse snitch who recanted his story to her fell on deaf ears.

But, after her death, she attracted the full attention of a receptive listener in a Waco Police Investigator named Jan Price, now retired. Detective Price had many suspicions about the case made against Spence and two Hispanic brothers named Melendez. 

Numerous informants in the jails and on the streets alleged Simons made promises in return for information the veracity of which is suspect. There were also allegations of special favors of conjugal visits with spouses and girlfriends, treats of pizza, and the like. Price deposed that one informant who was held on a “blue warrant” from the Institutional Division of the Texas Department of Criminal Justice made the streets easily after informing on the two suspects who were eventually exonerated, Calvin Washington, who in 1986, the time of the killing, was 25, and Joe Sidney Williams, 19.

She had a much more credible suspect in mind. Benny Carroll, who lived in the neighborhood near Ms. White’s home, had been convicted of a nearly identical beating and sexual assault of an elderly woman.

The simple truth is that Juanita White probably knew her attacker and willingly let him inside her home, else the death struggle would have probably occurred at the front door. The crime scene tells the story of an assault that took place in her bedroom, located at the rear of her residence. In her final moments of life, she had been forced face down on her bed, her undergarments forcibly removed, raped, and left to die. Her face, according to a source close to the investigation, was “a bloody mess.”

Forensic examiners usually interpret the meaning of that kind of sign that the attacker had some personal relationship with the victim, that it was attack motivated by rage.

The most chilling detail in the macabre scene: Her buttock, according to the source, bore the mark of a human bite. It’s been so many years, the person who contacted The Legendary does not remember if it was the left or right buttock.

In her deposition, the veteran detective said she feels the investigation became “seriously misdirected” after Vic Feazell decided to transfer the lead duties to Simons.

The Sunday evening after crime scene investigators cleared the scene, she deposed, a neighbor called to say that someone had broken into the house. Further investigation revealed that the burglar had gone through papers Ms. White had been collecting in her own independent “investigation” of her son’s case in the lake murders. A box of material was open on the bed in a front bedroom, the room David used when he was at home. Papers were strewn on the floor.

She also recalled that in the early days after the Juanita White killing, Truman Simons and Vic Feazell had called on her to obtain a key to the home, that they met her there and climbed into the attic, where they looked for some item neither ever mentioned to her.

After DNA evidence showed neither of the convicted suspects could have possibly committed the murder and sexual assault, and that Benny Carroll did, Price’s sworn statement carried the strenuous objection that she felt Feazell and Simons were “very concerned” to see that the public perceived the murder and rape of Ms. White had nothing to do with the lake murders.

There is always a catch when you deal with fundamental evil.

Benny Carroll committed suicide in 1990.

The entire affair took place before Spence made his date with the executioner. As he awaited his fate on Death Row and his appeals were turned down one by one, his ex-wife told an interviewer for “Texas Monthly,” he would sometimes stand in the exercise yard and scream at the heavens, “Are you real? Is my mother with you?”

Those people’s whole lives were based on lying,” said Detective Price when the magazine writer interviewed her.

A video clip of Spence’s booking for the murders of the three teenagers at the lake contains a portentous series of frames. Smiling, familiar with the deputy who is taking down the information as he fills out a form on a typewriter, Spence suddenly apprehends that the remote lens of a television news camera is pointed directly at his profile.

He suddenly shuts his mouth and covers it with an open hand, a haunted look in his eyes. Screen Shot 2015-03-05 at 12.20.36 PM

 

http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3720

ttp://www.nytimes.com/1997/07/31/opinion/a-system-gone-mad.html

http://docs.vicfeazell.com/pdf/Affidavit_Of_Jan_Price.pdf

http://www.wacotrib.com/news/police/lake-waco-murders-will-return-to-court-after-decades/article_70c58506-9db8-50b8-9c70-34c3b1389edf.html

http://lubbockonline.com/stories/070601/upd_075-4495.shtm

http://www.texasmonthly.com/contributor/michael-hall

 

 

 

 

Detective used internet database in sex sting case

 Waco – A detective revealed to news outlets that he used an on-line law enforcement database to pinpoint the identity of a veteran lawman in an underage prostitution sting.Screen Shot 2015-03-02 at 5.16.51 PM

Deputy Joseph Scaramucci posed as a 17-year-old female to lure McLennan County Precinct 1 Deputy Constable Steve Canava, 51, to a proposed assignation for paid sexual intercourse, then used the probable cause affidavit he developed in the on-line dalliance to obtain an arrest warrant.

Screen Shot 2015-03-02 at 4.53.52 PMCanava, a veteran Waco Police officer, is charged with the second degree felony offense of on-line solicitation of a juvenile. Authorities released him on $25,000 bond. Precinct 1 Constable Walt Strickland placed him on unpaid administrative leave following his arrest on Friday, February 27.