Former District Judge Susan Criss on the bench at Galveston
If the search warrant is not good, then evidence gained pursuant gets suppressed. – Judge Susan Criss
Waco – To get a conviction for engaging in organized criminal activity, the DA is going to have to put in the hands of the accused the weapons specified in the indictments of the defendants arrested at Twin Peaks on May 17, 2015.
That will be a difficult task if former District Judge Susan Criss’s challenge to the search warrants is successful. She objects to the method used by 19th Criminal District Court Judge Ralph Strother and a colleague, District Judge Gary Coley to issue the search warrants seeking DNA specimen from the defendants.
The dispute centers around a zealous attempt to match DNA found upon weapons confiscated as evidence at the scene of the mass killings with that of the accused.
The ex-Judge is holding in her defense of her client that the warrants of search to obtain tissue swabs for the purpose are invalid because the Courts did not ensure their execution in a way befitting the due process guaranteed by the U.S. and Texas Constitutions.
In this classic clash of constitutional conflict, hand to hand among the lions and lionesses of the courts, what could be more dramatic? For a courthouse resembles nothing so much in our American republic than a temple – a temple of justice – and who dares teach the law there?
The Judges, known in polite and professional parlance as the Courts, are the learned rabbis of the law. Who would argue that their instruction does anything less than guide and direct the very character of a community?
The Courts teach the law. All others who appear there in advocacy practice the law.
Judge Susan Criss represents Rolando Reyes, a member of Los Caballeros Motorcycle Club of Killeen, a support club associated with Los Bandidos U.S.A. He is one of 177 persons arrested and 155 later indicted for engaging in organized criminal activity, activity that led to either capital murder, attempted capital murder, or aggravated assault on that fateful day.
As a District Judge in Galveston, she once presided over civil cases involving thousands of litigants and hundreds of lawyers, as well as one of the most complex murder cases in American history the dismemberment murder case that resulted in the acquittal of Robert Durst, a man she later described to a journalist as “very dangerous,” a “person (who) knew what they were doing and that it was not the first time.”
In this case, she has invoked the dreaded Michael Morton law regarding withholding exclupatory evidence that would tend to lead to a finding of the innocence of the accused.
Her motion before 19th Criminal District Ralph T. Strother alleges that all communications between the District Attorney, his staff, and the Judge and his staff are required by “the authority of Tex. Code. Crim. Proc. Ann. Art. 39.14, otherwise known as The Michael Morton Act.”
The invocation of that law led to a Georgetown District Judge’s felony conviction over his conduct as a prosecutor in State v. Michael Morton. District Judge Ken Anderson resigned his bench, lost his license to practice law, and served time for the crime for which he was accused and convicted, the failure to include in discovery the recollection of Mr. Morton’s little boy, who told an investigator with the District Attorney’s Office that a “monster with red hands” killed his mother with a two-by-four and “broke the bed,” then covered her body with an open suitcase, details only an eye witness would have known.
The monster was not his father, Michael Morton.
No one knew. Anderson did not allow it to be discovered as exculpatory evidence, something that could have led to his acquittal for the charge of murdering his wife and his subsequent sentence to serve out his life behind bars.
The Waco court system is extremely hostile to discovery of evidence. Most criminal defendants sign a “agreed order for discovery” promulgated by the Courts, and that’s as far as the matter goes. Court-appointed lawyers never even file a motion for discovery, much less a motion for a pre-indictment examining trial. Those who do are allowed to make an inspection of the materials at the DA’s offices under what is known as the “open file” policy; they are allowed to make no copies, and must rely upon their notes lest any of the material wind up in the hands of defendants or their associates.
In the Twin Peaks cases, there is an overkill of release of dicovery items on a serial basis that is preventing the defense bar from being prepared for trial due to their inability to absorb and catalogue all the myriad items spilling upon their desks at the odd moment.
In a letter to Strother, Judge Criss expands upon her complaint of ex parte communication between the Court and the DA’s staff, something which she deems “troublesome.”
One of those troublesome details is “The State took the position of refusing to sign the agreed reset form unless our client submitted to their demand and your purported order for our client to go the D.A.’s office. Much discovery is yet to be had without the added delay the processing of this DNA will add. The attorneys are already put in a precarious position of trying to preserve our clients’ rights to a Speedy Trial while ensuring we are adequately prepared by having examined all of the evidence in the discovery process.”
Issues of malpractice may arise should a counselor assert his readiness for trial and not be aware of another thousand pages of discovery material yet to be released.
“Getting notice of the existence of a court order as a mention in an email from a staff member of the D.A.’s office is troublesome. If an order is issued by this Honorable Court then the lawyers and parties are entitled to have the written order or at least be told how to acquire it. If the order is verbal then it is not going to be enforceable without some verifiable record of exactly what is ordered. And then there is the whole isue of due process in the securing of an order without prior notice to the other side.
“We have been put in a position of not really knowing if an order was issued by the Court, what the exact order was, what the circumstance of the order being rendered were and how to acquire any more information about the supposed order. This makes it impossible to advise our clients and render effective representation. This makes it impossible to make an effective record. Our adversary cannot serve as our intermediary with the Court. Furthermore our not being able to provide input to the Court prior to court orders being rendered causes multiple problems.”
Quite simply, she states in her letter to Judge Strother, “more than one employee” of the DA’s office told her that he, Strother, ordered her client to appear at the DA’s office on February 16, 2017 to help the prosecutors execute a search warrant signed by a judge other than yourself. To this day I do not know if that is true.”
Though Judge Criss makes no objection to a judge ordering defendants on bond to make appearances in court in pereson, “I do strenuously object to ‘court’ being held in the prosecutor’s offices. I object to a status conference being parlayed into a mechanism for the Court to assist the prosecution in executing a search warrant issued by another judge.”
Had Strother signed the warrant it would still not be appropriate “for the Court to participate in any way shape or form in the execution of said warrant. Again I have only the word of the prosecutor that the Court was ordering our appearance at the D.A.’s office. And I am not at all confident that the Court rendered any such order.”
One acidic comment in Judge Criss’s letter to Judge Strother recalls the adage that most of what we know we learned before we were five years of age:
To add the indignity of having the prosecution demand we play in their sandbox to avoid further waiving our clients’s Constitutional rights is problematic on many ethical, constitutional and appellate levels.
Asked about the ramifications of her filings, Judge Criss responded, If the search warrant is not good, then evidence gained pursuant gets suppressed.
We the People may well witness law at is it being made, here, in this city, Jerusalem-on-the-Brazos.
In an open records request to the District Attorney’s Office, Judge Criss made certain to “request a waiver of all fees in that the disclosure of the requested information is in the public interest and will contribute significantly to the public’s understanding of the issues involved here.”
“An enlightened citizenry is indispensable for the proper functioning of a republic. Self-government is not possible unless the citizens are educated sufficiently to enable them to exercise oversight. It is therefore imperative that the nation see to it that a sustainable education be provided for in all its citizens.”