“CONTINUALLY ENGAGING” – “SELF DEFENSE,” “SINGLE INCIDENT”
Waco – Jurors seeking a breath of fresh air sometimes stand at the top of the steps, outside the doors almost never used that give on the third floor rotunda of the McLennan County Courthouse and a porch overlooking a set of steep granite steps to the sidewalk far below.
They stand and sit – as a group – taking the air, looking down at the square, on the square, in the square, hewn from the rock, high among the boughs of the pecan trees that stud the terraced lawn of the Victorian-era building, the people’s palace of justice.
For an estimated five weeks forecast by the officers of the Court, they have done everything as a group, waiting for their summons to the Courtroom, their arrival and departure to and from the building under tight security precautions, their midmorning and mid afternoon coffee and bathroom breaks, luncheon hours, removal for discussions by counselors and judge held outside their presence, all sequestered together until the end of the day when following their recess for the day, they are released at a remote and confidential location.
And now, for the jury that has sat so patiently through all the moments of the case of State of Texas v. Christopher Jacob Carrizal, Cause No. 2015 -2263 – C2, the end is in sight, the moment when the “People of the State of Texas” tender their case to the jury with instructions from the Honorable Judge of the 54th Criminal District Court, County of McLennan, State of T – E – X – A – S, Matt Johnson.
“After the cross examination,” he told attorneys after the jurors had been recessed at 5 pm on Tuesday, November 8, he will read the jurors their instructions, a task he estimates will take the better part of an hour, to be enunciated in all its particulars, aloud, and with precision.
It is a group effort, to draft such a necessary document, requiring the assent of all parties, We The People of the State, the Defendant Jake Carrizal and his legal counsel, and the Honorable Judge of said Court.
This is the part of the story almost never told in courtroom dramas, television presentations, historical documentaries, and yet it is the most important element of the proceeding, the criminal trial by jury, the jury charge, the instructions by which they must render a verdict of guilt or innocence – and how they are to do that.
The indictment is not to be considered evidence, nor a presentment of guilt; the defendant’s utterances under oath or lack thereof may not be considered evidence of guilt.
In all cases, the burden of proof rests upon the State, according to the Code of Criminal Procedure.
And so, together, they reasoned, standing behind the tables laden with legal materials, before the bench, confronting the Judge, their discussion punctuated by nervous laughter at points made more intense by the late hour of the day as darkness fell on a chill autumn afternoon, the kind of gallows humor best taken in small doses, with a grain of salt, to make it more bearable in the nearly unbearable light of circumstances, the rapidly approaching finality of the moment.
These are the bare bones of what will be hammered and forged on a day very soon, after the cross examination is done and jurors are recessed for the rest of the day at the noon hour:
Said Judge Johnson:
Self defense of a third person will be a consideration due to the evidence of multiple assailants presented in pictures, the words of witnesses, and the testimony of the defendant so dramatically elicited by counsel for the defense, and the questions of the prosecutors acting on behalf of the People of the State.
This, along with the “standard instruction – burden of proof” will round out the jury’s instruction as to each of the three counts specified in the indictment, as particularized in each of 9 alleged capital murders and the alleged aggravated assault of each of 20 persons injured in the “melee” so often described by the media, the state, witnesses, and the defendant himself as he finally confronted the facts, faced his ultimate judges, the jurors, some of whom jotted down his words as he spoke in legal pads furnished by the state.
In cross examination, lead prosecutor Michael Jarrett led the defendant through the litany of the elements that must be proven.
He asked specifically about each of the elements that allegedly make the Cossacks Motorcycle Club, an organization that to this day claims no status as a 1% club, yet is considered a criminal street gang in the opinion of the U.S. Department of Justice and the Texas Department of Public Safety.
Do they wear distinctive signs or symbols that designate them as a group apart from the rest of society? Do they act in concert with one another to engage in illegal activities?
Are they a gang?
Carrizal answered with measured tones,
“I wouldn’t necessarily call them a gang,” he replied.
“Are they a club?
And then the defense counsel Casie Gotro spoke to the judge during their informal “visit” off the record, out of the presence of the jury while the gallery, the bailiffs, the family of the defendant, their friends, and family members of the Cossacks, stood in their places among the hard-backed folding theater seats to listen respectfully as the parties chatted at the end of a long and emotionally draining day.
Ms. Gotro spoke of “so much charged conduct on this single incident.”
She spoke her study of case law, and she gave a citation of controlling opinion handed down by a Court in the Southwestern District of the nation, inscribed in the Third Series of the Reporter, that calls for a “special instruction” regarding the facts of “continually engaging” in the type of illegal activities allegedly so directed by an actor so charged under the statute, as well as “this single incident.”
The counsel for the state seemed to concur, as they stood in mute testimony to their rapt attention to the matter.
Judge Johnson spoke.
He said that there will be a “charge conference,” on the record, “after cross examination ending at noon,” on the final day of the trial of the case in chief, before the deliberations of the jury begins.
They will be recessed, allowed to go home and relax, and the conference will take place outside their presence, in open court.
This is so important to a public exposed to the near radioactive conditions of a newly militarized police force, mobilized nationwide by a reinvigorated federal government acting in concert with state governments, using the services of local police forces and the corrections facilities of counties ordered by federal court mandates to erect new and better jails to comply with state standards dictated in the verdicts federal civil rights lawsuits settled in U.S. District Courts across entire tiers of states, coast to coast.
As to the allegations of Count 1, the jurors will be instructed to find if a murder took place, and further, was it the murder of a specific person, a human being, who then and there was deprived of his life through the actions of the defendant, who acted in concert in a combination with two or more persons factually proven to have been operating as a criminal street gang as defined in the statute.
As to the allegations of Count 2, the finding they will be instructed to deliberate will be, did the defendant direct the activities of persons – two or more – who acted together in combination to commit an aggravated assault upon the following persons named in the indictment.
The instructions will be crafted so that “Half can say murder was committed ‘knowingly and willingly,’ and half can say there was a murder.”
The result, he explained, will be the same when the foreman of the jury checks off the finding of the jury, either unanimous or partial, guilty or not guilty, in each of the allegations of complaint contained in the criminal lawsuit lodged against Mr. Carrizal.
The three possible findings are: a unanimous verdict of acquittal; a unanimous verdict of guilt; or a partial verdict of either in what must be determined to be a deadlocked difference of opinion, in which case the Court must declare a mistrial in each of the several allegations.
Case law calls for a special instruction of “specific intent,” according to defense counsel, that the Bandidos Motorcycle Club did then and there engage in “one of the acts” to be considered by the jurors as a specific allegation.
“Y’all just give me a road map,” said Judge Matt Johnson, from his seat at the bench, as he added the remark, “to start with.”
So mote it be.