Of Search And Seizure


We had to file an open records request… – Richard Rousseau, attorney for Rolando Reyes, speaking of what it took to see the search warrant

19th Criminal District Court Judge Ralph T. Strother

Waco – As the day wore on through an increasingly precise and pettifogging onslaught of the State of Texas’ constant objection to the form of questions, an ugly story emerged.

The office of the Criminal District Attorney of McLennan County wanted to take DNA samples of defendants charged with engaging in organized criminal activity at a police ambush of a political meeting of the Confederation of Clubs and Independents, a civic association of motorcycle enthusiasts, at Twin Peaks Restaurant on May 17, 2015.

Nine men lost their lives following an all-out firefight in which an uninvited club named the Cossacks, a 1 percent organization not affiliated with the confederation, confronted members of the Bandidos with firearms as they arrived on their Harleys. Twenty men succumbed to their wounds; autopsy reports and video surveillance tapes make it abundantly clear that unseen riflemen firing from a position of L-shaped cross fire to their rear then cut them down with precise sniper fire. Almost every wound was to the rear of the body, in the head, the back, the neck.

As Waco Police investigated, District Attorney Abel Reyna made a decision to have everyone present wearing “colors” on their garments arrested; a justice of the peace acting as magistrate set their bonds at a cool one million dollars.

Each defendant was charged with engaging in organized criminal activity, non-specifically and without any description of the actus reus allegedly committed, other than the accusation that it all somehow led to the capital murder and/or aggravated assault of another human being. The penalty for such a conviction is not less than 25 years nor more than 99. It doesn’t look good on the resume that one was ever arrested, charged and indicted for such an offense.

In November of 2016, Ella Watson, the lead court coordinator in the 19th Criminal District Court arrived at a decision to have a paralegal in the DA’s office send e-mails to attorneys who represent 72 defendants previously not required to appear at “announcement docket” calls.

She testified that Strother was experiencing health problems at the time, and that in between doctor visits, he directed her verbally to take the action required to summon defendants and their attorneys to the courthouse, not necessarily his courtroom. They could have been order to come to any place, anywhere in the county, he later testified.

Said Ms. Watson during her direct testimony, “Judge Strother had never seen that re-set form before. It’s literally Chinese to him.”

Indeed, it was a peculiar occurrence, out of the ordinary, with a demand for defense attorneys to be present with the defendants they represent at 1 p.m. in the 19th District Courtroom on the third floor of this Victorian building with the double dome and Aztec pyramid steps on February 16, 2017.

Ordinarily, witness after witness testified under oath, attorneys would file an automatic “reset form” by computer and the Court would pass the case to a future date. This time it was different.

Only a few attorneys representing three of the 72 indicted in the 19th Criminal District Court, roughly half of the 152 persons  who wound up under indictment, bothered to inquire why.

What they found represents a complete departure from criminal practice guaranteeing a freedom from unreasonable means of search and seizure of items from a defendant’s person, property, and papers. The order finally obtained after a monumental hassle in harmonies of ring-dang-doo contained no specific instruction as to what,items to search for or seize, or exactly where.

Judge Ralph T.. Strother, it emerged through the painful process of direct and cross examination, with all its elaborate and courtly semantic requirements, had ordered the search and seizure of the defendants’ bodies and the seizure of tissue from which the District Attorney intended to have analysis of the ultra-precise genetic markers of deoxyribonucleic acid – which is spelled just like it sounds, and abbreviated as DNA.

That would be the biochemical self-replicating substance that contains the constituent components of chromosomes, nature’s double helix of genetic record that makes it possible to isolate the footprint of a living organism and distinguish tissue from that particular entity exclusively from that of many billions, if not trillions of others.

He did all this “verbally,” but he doesn’t remember specifically when, or how, to whom he directed his order. Other than to assert that he just did it because he wanted to, he answered all other questions with “I don’t remember,” or “not to my knowledge,” or other vague responses.

During questioning in a grueling three hours on the witness stand by former Texas Criminal Court of Appeals Justice Charlie Baird, who is representing an Austin produce merchant named Paul Landers,  Strother became by turns petulant, outraged, commiserative, defiant, and enraged in his various displays of self justification for an act he admits he set in motion, something that is considered totally unconstitutional and completely outside the norms of judicial conduct as an interpreter of the law, a guardian of the requirements of due process.

He said he doesn’t remember if he told the court coordinator to set up the “3A announcement docket,” or if they just worked it out as co-workers, in a text or phone conversation.

Down the memory hole with all that.

Why did he do it this way? He testified he had no idea. His staff takes care of all that.

In the end, he admitted that he ordered the defendants to go to the District Attorney’s office to submit to a search of their bodies in the seizure of tissue samples, “Because that’s what I wanted to do.” At another juncture, exasperated and showing it with an embarrassed expression on his face, glancing sidewise at visiting retired District Judge James Morgan of Comanche, he said, “I wanted the defendants to appear. I didn’t care how they were notified…”

In later questioning, he added, “Look, I ordered people to appear; I didn’t care who sent the notice.”

It is not a comfortable spectacle, this thing of watching a lion as he is bearded in his own den. It brings to mind the famous video clip of President Richard M. Nixon when he told an interviewer, “When the President does it, it’s not unconstitutional.”

This experience is in parallel with the decision of the DA on May 17, 2015, to take over a police investigation and order the arrest of one and all persons wearing club colors, then to be charged with the conspiratorial offense of acting in a combination of one or more others to commit a criminal offense, in this case capital murder and/or aggravated assault.

When placed on the witness stand in the 54th Criminal District Court during a similar hearing in August of 2016 to testify about his recollections of those events, Abel Reyna put on a similar display. He was simply unable to come to grips with the fact that he ceased in his role of a criminal attorney acting on behalf of his client, the People of the State of Texas, and became a police officer directing the evolutions of a criminal investigation. One could see in his facial expressions and demeanor that he had never given it the slightest thought until pinned down on the dissection table – alive and suffering – under the white hot examination of the truth of pure reason, the logic of the absolute semantics of a concept of enlightened liberty.

It’s a fine line, but there it is. Everyone there felt and heard the bump when the ship of state banged into the bluff and jagged shoal; no one wanted to look anywhere but the middle distance or the tips of his boots. It was a moment, painful to behold, even worse to experience, a brief flash of reality that instructs with the precision of a scalpel or a surgical probe that there is no profit or joy in watching the correction of another human being so reduced to such a miserable and sudden change of fortune, so suddenly bereft of his trappings of authority, and thus naked and isolated, unable to accept his error.

And then the reality set in. This is a community that cannot be bothered with the form and function of an enlightened republic; its leaders just don’t care about the rights and responsibilities of the citizens, and they could care less about the niceties of being the guardians of liberty. It is a full-blown police state. Every official is there to punish and correct. There is little regard for the normative procedures of fact finding and due process.

Don’t get locked up in Waco. Period. If possible, fly over it.

It made one remember, in a sick-making rush, that the survivors of the Branch Davidian raid of 1993 all agree. They have to this day never seen a search warrant, from the moment that two cattle trailer loads of armed SWAT officers stormed their communal dwelling with automatic assault weapons until the explosion of the fireball that ended the lives of men, women and children who held out for that document, and even today. No one has been allowed to read the instrument of search and seizure issued by a magistrate to allow such an occurrence.

Quite simply, these people do not learn by their mistakes.

How unfortunate.

THE MORNING STARTED WITH A BANG  when attorneys for the state and the Waco “Tribune-Herald” sought to quash subpoenas for lead prosecutor Michael Jarrett and Staff Writer Tommy Witherspoon.

Attorneys seeking to recuse the judge wanted to question Jarrett about just how the prosecution arrived at the determination to seek the DNA evidence; similarly, they wished to question Witherspoon about just how he learned of the judge’s opinions about such matters as Grand Jury selection in the now defunct “pick-a-pal” system, of the appointment of a retired police officer for the panel that would be asked to indict the Twin Peaks defendants.

Assistant District Attorney Sterling Harmon argued that Jarrett’s work flow involves privileged information regarding his “work product,” which is exempted from discovery or examination under oath.

A Mr. Cosby represented that Witherspoon is protected under the Texas Journalist Shield Act, which renders privileged the news gathering activities of a working reporter.

Both motions went nowhere, though defense attorneys had supplied specific exhibits regarding Jarrett’s practice and the shield law protects only published material, not that which is unpublished.

Judge Morgan remarked, “I hope we don’t have too many of these detours,” and expressed in no uncertain terms several times that he really wanted to “get this done.”

That was a recurring theme, as he prodded attorneys asking repetitive questions to the accompaniment of a steady onslaught of objections by Jarrett with the admonishment, steadily increasing in tempo and volume, “Move on…Move On!…MOVE ON!”

The climax of the day’s proceedings came when Richard Rousseau testified about an ugly confrontation between District Judge Susan Criss and Assistant District Attorney Amanda Dillon.

The conflict was simple enough. The judge wanted to see the order, the legal instrument by which her client was compelled to come to the DA’s office and submit to a tissue swab to test his DNA. There must be a warrant, a court order – something with the judge’s signature, said Rousseau.

But there was none.

Ms. Dillon refused to sign the re-set form to pass the case for a future date until they came to the DA’s office to submit to the DNA collection.

Finally, in frustration, he recounted, Jarrett remarked after long, loud and vigorous arguments that they had a choice.

“Would you rather we come to your client’s house and kick the door down so we can execute the search warrant?”

You could have heard a pin drop; you could have heard time crawl. Suddenly, everyone present was looking into the abyss of the police state. Rousseau’s face was a mask of stone. Everyone else looked a little bit pale, including the judge.

Rousseau answered Jarrett’s question about the sufficiency of the warrant that was issued by Judge Gary Coley, something it took a public information act request to obtain, saying, “I don’t consider that an order; I consider that an e-mail.”

And then it struck like a thunderclap. Everyone involved in that dispute aired in that room, or nearly everyone, is a senior citizen living through their golden years. Some day, the record will reflect that when the crunch came, the bone on flesh thud and thunder of conflict occurred, when push came to shove, it was Mama San and Papa San, the old folks, the gramps and grannies, who stepped up and fought with skill and precision, a dedication to the rule of law.

In their final arguments, Dallas Attorney F. Clinton Broden held that Judge Strother violated the constitution in three ways; he issued public statements published in papers of record about matters which he may one day have to rule upon; he assisted with the execution of a search warrant, a law enforcement function; and he engaged in ex parte communication with the DA’s office.

Judge Baird said he had two objections that would render Judge Strother incapable of being a neutral and balanced magistrate or a judge of the law. First, he assisted the state with their execution of a search warrant that was like Samuel Goldwyn’s verbal contract, not worth the paper it’s printed on; second, he did not recognize the necessity of trying to obtain evidence from a defendant without first talking to the attorney representing him.

The most dramatic and poignant argument came from Judge Criss, whose emotions carried her into the realm of an outraged woman at the well, arguing with a tormenting interlocutor who would not let her speak without interruption. Jarrett constantly objected to her words as irrelevant, and she fairly shouted at him, “Yes, it’s relevant!”

With a great economy of words, she reminded him that these are the underpinnings of the republican form of government crafted by the likes of Benjamin Franklin and John Madison, without which the legislators of the states would not have ratified the basic law of the central government of the United States of America, ordained by We The People, and not a king or queen.

The lady stepped up; she showed her spurs, said “I’ve signed thousands of search warrants in my time!”

At the end, Judge Morgan expressed his extreme disappointment, saying, “This is not the way I wanted it. I wanted to rule on this today, but I can’t. I’ve got to think about it.”

A bluff and blunt spoken West Texan, he was last seen carrying his suit bag and carry-on luggage, strolling across the square toward the city’s premier hotel on the Civic plaza.

He granted Judge Baird time to work up a formal brief of authorities at common law to compel the recusal, a document which is due a week from this coming Friday.

I am sincere.

So mote it be.

  • The Legendary







5 thoughts on “Of Search And Seizure”

    1. Thank you, Mr. Rousseau, for your wise counsel. I have hyperlinked the article, as I should have. – Legendary Jim

  1. If people actually knew what really happens behind “the closed doors” of justice, they would not only be surprised but absolutely dumbfounded. But this only happens to those indigents who can’t afford a kick ass attorney who is willing to yell out “Yes it is relevant!” Who gives a rat’s ass if he just wanted to get this done today. Mind boggling.

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