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

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