Law … begins when someone takes to doing something someone else does not like. – Karl Llewellyn
Six Shooter Junction – Court observers and members of the community of motorcycle enthusiasts are eagerly anticipating a series of show-downs between prosecutors and defense lawyers over the evidence to be presented in the Twin Peaks shoot-em-up of May 17.
One of the most cited legal scholars of our time, Professor Karl Llewellyn of Columbia and the University of Chicago, wrote in his seminal work, “The Bramble Bush,” that the legal realist takes a view that what judges, lawyers, and law enforcement officers “do about disputes is, to my mind, the law itself.”
The 17 Twin Peaks cases set for an examining trail in Justice Court Precinct 1, Place Two, are a set of doozies, prime for the record books and served up with a sizzle during the heat of Dog Days. What happens could very well be a sign of the times, a precursor to future criminal litigation against unpopular persons with enthusiasms perceived as undesirable by an authoritarian culture bent on rigid control of future conduct as yet uncommitted.
Think of it this way. What could be more controversial than a capital case – a first degree felony that allegedly resulted in capital murder – leveled against an individual, styled “People of the State of Texas v. Little Old You?”
In Texas, the accused offender has a right to a trial by jury, having first been indicted by a Grand Jury in a true bill that specifies each and every element of the offense, in which he has the right to confront the witnesses and cross examine them. To return a verdict of conviction, the jurors must reach a unanimous finding of guilt beyond a reasonable doubt on each element of the charge, or render a verdict of guilt on varying levels of culpability, as instructed by the judge.
The number of defendants identically charged with a violation of Subsection 71.02, Title 11, Chapter 71 of the Texas Penal Code stands at 177 – all of them arrested on an identical affidavit of warrantless arrest filed in the above named Justice Court. This instrument alleges that the defendants whose names were filled in on blanks of an identical form, were in attendance at a meeting of the Confederation of Clubs on May 17 at the Twin Peaks Restaurant when a melee involving fist fighting and shooting broke out in the parking lot between members of the Cossacks and Bandidos Motorcycle Clubs. Nine persons lost their lives; as many as 17 suffered gunshot wounds.
Conviction carries a possible sentence of from 5 to 99 years in the penitentiary.
Who shot whom – with what – and when, is a matter of great controversy, the kind of question that develops a lot of heat and light because the issues on the table – gun ownership, the right to carry either concealed or openly, and the right to self defense – are hot button issues that linger, and linger, and linger.
There is extensive video surveillance imagery, the subject of a protective order, and still more since leaked that was shot from cameras at an adjacent restaurant. These images depict police officers armed with AR-15-style assault weapons taking up positions behind cars in the parking lot as the melee began.
Word is that the process of discovery has begun in an exchange of reports, statements, photos, videos, and other diagrams and depictions of what happened, where and when and how.
The truth is, the large and diverse crowd of motorcycle club members hailing from throughout the central Texas area had assembled in Waco in defiance of police officers’ openly stated druthers; their mission included a desire to hear an accurate briefing from knowledgeable people following an array of proposed open carry legislation in Austin still pending on that day.
The First Amendment to the U.S. Constitution plainly states they have the right to gather peacefully in free association with persons of their own choosing.
As members of “a criminal street gang,” each defendant allegedly committed the offense of “intent to establish, maintain, or participate in a combination or in the profits of a combination” by committing or conspiring to commit:
(1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
Legal scholars call this an offense of result, the result of an action or the result of a conspiracy by a “combination” of actors who need not even know one another.
Look what they have to prove: when and where the offense took place; intent to establish, maintain, or participate in a combination, or in the profits of a combination; membership in a criminal street gang; conspiracy to commit capital murder, and/or aggravated assault.
The allegation of complaint specifies that in each of the 177 cases, these are the facts. The defendants disagree. Many of their lawyers are demanding an intermediate level of discovery of witnesses and evidence to be used in the prosecution – a procedure so rare, a veteran prosecutor teamed with First Assistant District Attorney Michael Jarrett, Mark Parker, says he has seen only two in his 27 years serving in the Criminal District Attorney’s Office.
It’s called an examining trial, and prosecutors are so reluctant to allow their cases to be so meticulously examined in an open court proceeding carried out under the strictures of the rules of evidence and the rules of court that they routinely find a way to delay the settings of any such until after a Grand Jury has returned an indictment at which point no such examination is then legal. That’s why it’s so rare.
All indictments in the name of the State of Texas must specify that the defendant “knowingly and willingly,” with negligence or malice or premeditation, or some plainly stated mental state commited the offense as a result of some causative conduct. Each element of the indictment must be proven “beyond a reasonable doubt.” If not, a judge may instruct the jurors to select another offense from an array of possible offenses, according to their conscience. Upon that verdict, all twelve jurors must agree in unanimity.
A chief area of controversy in pre-trial maneuvering is to be found in the sufficiency of the charge. For instance, in The STATE of Texas, Appellant v. Priscilla Aguilar HERNANDEZ, Appellee.No. 04–11–00796–CR., the Court of Appeals of Texas at San Antonio held that “We review the trial court’s ruling on the motion to quash the indictment de novo because the sufficiency of a charging instrument is a question of law…”
The Justice who wrote the opinion cited two cases, Smith v. State, 309 S.W.3d 10, 13–14 (Tex.Crim.App.2010); State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004), in which the holding is that “An indictment must be specific enough to inform the accused of the nature of the charge against her so she may prepare a defense.”
An accused has a constitutional right to sufficient notice.
Production of evidence and testimony in the examining trials will likely include vigorous defense cross examination in pursuit of a determination that the defendants were in a culpable mental state regarding the killings and gunshot wounds suffered in the melee. After all, the vast majority of the people charged were actually in hiding inside the restaurant at the time. They ran there when fists began to fly and shots rang out.
“In sum, to give sufficient notice, the face of an indictment must allege, in plain and intelligible language, all the facts and circumstances required to establish the material elements of the offense charged. Sanchez, 182 S.W.3d at 45 (citing Garcia v. State, 981 S.W.2d 683, 685 (Tex.Crim.App.1998)); Riney v. State, 28 S.W.3d 561, 565.”
Should retired Visiting Judge James Morgan find insufficient probable cause to send the cases to a Grand Jury, he has two options. He may discharge the defendant immediately following the examining trial, or he can wait 48 hours without issuing a ruling, and the case will be dismissed automatically. In either case, the charges will not be considered by a Grand Jury.
The examining trials are scheduled to begin tomorrow, August 17, and will run by this schedule announced in a local daily periodical, the information having been withheld from this writer by Justice of the Peace “Pete” Peterson. He is the magistrate who charged the defendants on the affidavit of warrantless arrest by Waco Police Detective Manuel Chavez and set every accused offender’s bail at $1 million to “send a message,” he told media outlets. A Visiting Judge granted a motion for his recusal sought by an attorney who is now the subject of a gag order issued by Criminal 54th District Judge Matt Johnson. F. Clinton Broden entered an agreement with his client Matthew Clendennen to waive his right to an examining trial originally scheduled for last Monday, August 10.
JUDGE JAMES MORGAN SET EXAMINING TRIALS FOR TWIN PEAKS DEFENDANTS AS FOLLOWS:
Aug. 17 – 10:30 a.m. Morgan J. English, Brenham;1 p.m. William H. English, Brenham; 3 p.m. Daniel Pesina, San Antonio.
Aug. 19 – 9 a.m. Clayton D. Reed, Burleson; 10:45 a.m. Matthew R. Folse, Dallas; 1:30 p.m. Noe Adame, Dallas; 3:15 p.m. John Robert Wilson, Waco.
Aug. 24 – 10:30 a.m. Drew David King, Dripping Springs; 1:30 p.m. Dalton Davis, Bowie; 3:15 p.m. Lawrence Yager, Buda
Aug. 26 – 1 p.m. Richard R. Donias, San Antonio; 3:15 p.m. John Guerrero, San Antonio
Aug. 27 – Tom M. Mendez, San Antonio; Lawrence Garcia, San Antonio; Juventino H. Montellano, San Antonio
Aug. 28 – Joseph M. Ortiz, San Antonio; Richard Luther, Garland.