Posted on 07/10/2015 1:45:45 PM PDT by Elderberry
Maybe. But I was a court watcher in the 90’ and even in civil cases the system moves very slowly. Homicide involved then glacial in speed even in civil cases. Also can the system in Waco absorb say 75 civil cases all within a short time? Not sure. Houston had more resources to fall back on.
LOL
I don't disagree with that. The point I made, differing from yours, was that the underlying accusation (murder vs. assault vs. conspiracy) is tangential to the claim of deprivation of due process, and the type of accusation won't much affect the time it takes to resolve the deprivation claims.
probable cause protections were violated on every one of the 177; as admitted to by the Waco detective that rubber stamped the papers.
Agreed.
That demand comes after indictment or information. Texas law allows, IIRC, 90 days between accusation and indictment or information, with some much shorter window (48 hours) to present the accused before a judge to secure the deprivation of liberty. Many of the accused have pursued remedy via habeas corpus and other vehicles that fit the Texas form, and in some of those cases, the trial judge has erred in favor of the state.
In many of these cases, the bail amount was set twice, by two different judges. Lawyers for the accused are working within the system, but as you know, trial judges are not error-proof, and in many cases are outright biased and/or error-prone.
I’m sorry, but you wrong.
I’m not “smugly making assertions.” it’s something called “The Law.”
Since you are familiar with the case, please educate us all:
!: What is each person charged with?
2: What is the evidence that person committed that crime?
3: What is the bail set on that charge?
4: If excessive, Why haven’t the individual def’s lawyers argued to have it reduced?
5: What are the other factors in each case in setting bail? Prior convictions? Flight risk? Community ties?
As you know the case, these are all simple questions, that if the answers are as you say they are, prove your case.
Absent them, It’s all courthouse crying.
It’s up to you.
"as a member of a criminal street gang, commit or conspire to commit murder, capital murder, or aggravated assault"
-- 2: What is the evidence that person committed that crime? --
There are 177 people accused, identically. The evidence against each one of those 177 probably varies in fact, but you wouldn't know it by reading the complaint(s). No specific evidence is recited in ANY of the complaints.
-- 3: What is the bail set on that charge? --
The bail was originally set at 1 million dollars, for each individual.
-- 4: If excessive, Why haven't the individual def's lawyers argued to have it reduced? --
Many of them have, and bond reductions were granted.
-- 5: What are the other factors in each case in setting bail? --
The starting point for setting bail, in Texas, is Article 17.15 of the Texas Code.
Art. 17.15. RULES FOR FIXING AMOUNT OF BAIL. The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:4 of the 177 remain incarcerated. 3 of the four have pending charges in other jurisdictions. The fourth has an offer from the prosecutor for $100,000 bail, but can't afford it. I don't believe the fourth has been before a judge on bail reduction, as the record shows him under $1,000,000 bail.
- The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with .
- The power to require bail is not to be so used as to make it an instrument of oppression.
- The nature of the offense and the circumstances under which it was committed are to be considered.
- The ability to make bail is to be regarded, and proof may be taken upon this point.
- The future safety of a victim of the alleged offense and the community shall be considered.
“probable cause protections were violated on every one of the 177; as admitted to by the Waco detective that rubber stamped the papers.”
First, that is a phrase not based in reality. I doubt any real “rubber stamp” was used.
Secondly, 98% of indictment wording is the same. For example. (Not necessarily the indictment used in the instant case)
I have caused the arrest of XXXXX on suspicion of the crime of the crime of XXXXX in violation of Texas Statue XXXXX because on information and belief, he/she did on the XXXXnd/th day of XXXX, 20XX procure a XXXX and then with others and aforethought did use such instrument to cause the death of XXXXX, a XXX year old XXXX resident ov XXXXX at or near XXXXXX and such location is solely within the legal bounds of XXXXX County in the State of Texas.
As such I arrested him/her at the location of XXXXX in XXXX County, texas and delivered him/her to XXXXXX, a person known to me by more than XXXXX experience interacting with this person to be a Deputy Sheriff / the Sheriff / an otherwise authorized person of the Sheriff of XXXX County, Texas, at XXXXXX...
It would then go on for about 20 paragraphs of additional legalize.
It’s enough to get them to a Grand Jury.
It’s up to the Defs’ lawyers to get reduced bail, not some publicity seeking Dallas lawyer not connected with the case.
My previous answer was factually incorrect. There isn't absence of evidence. The deficiency is that the evidence doesn't satisfy the elements of the crime accused.
The evidence on some of these points is non-uniform, for example, "wearing common identifying distinctive signs or symbols" doesn't attach to each individual, some of those arrested were wearing street clothes.
Also, caveat emptor, if you want to know what the complaint says, get a copy of the complaint. I'm paraphrasing, and there is always an argument (and indeed a possibility) that my paraphrase is misleading, incomplete, biased, or otherwise bogus and to be dismissed.
Apologies for the previous, incorrect answer. Was typing in a hurry, and allowed my conclusion (no evidence particularized to an individual) to affect the answer, "no evidence recited in the complaint." There is evidence recited in the complaint. After study and deliberation, I find it deficient as a matter of law.
Since you seem to be a stickler for using the right word, and avoiding jargon (like "rubber stamp"), may I gently remind you that no indictment has been filed in any of these cases. The papers that are under criticism are the Warrant, and the Complaint (or accusation).
In this case, the words of the Complaint(s) are 100% the same, save for an underscore line that is individualized with the name of the accused.
Well thought out (I’m on smart phone now too)
3 points here. “Conspiracy” can be evidenced by actions. State would not have to show all agreed to shoot/kill.
Also the acting in felonious consort issue
Example: two preps enter liquor store after agreeing to a sbatch and run robbery therein. Unbeknownst to perp 2, perp 1 has gun. Perp shoots/kills storeowner. Both preps guilty of murder.
Secondly, in this case, 177 felony accused overwhelming small jurisdiction. High bond set to hold all until matter is “sorted out” No legal problem if time of high bond holding is reasonable in terms of complexity of investigation. Also non-typical problems of identification
“Yes, officer. I saw the shooter clearly. .. but all I remember is that he was a WMA with a scruffy beard, average height and weight, black.... or maybe it was brown hair...., one of those leather motorcycle jackets. .. and he looked scarey to me
:)
3d. If lessor defs have made redreduce bail, this phase is resolved. If State is holding accrual accused shooter, that’s a No Bail in most casesw
Be well
Agreed that conspiracy can be evidenced by actions, but the state has to allege, then prove there was agreement. The deficiency in accusation is that it just asserts "fill-in-the-blank so-and-so conspired." What's the answer to that? "I did not?" There is a remarkable absence of particularity in accusation.
Broadening your thought, the "conspiracy" the reader is invited to infer is a conspiracy to rumble, which might involve actions well short of use of firearms. The conspiracy accusation includes conspiracy to commit aggravated assault. Just agreeing with you, conspiracy to rumble, then the rumble escalate to a shooting, is still conspiracy to rumble.
There is a narrowing element in the accusation, in that the conspiracy must be part of gang activity. I've reviewed Texas case law on this point, FWIW. Again, the complaint basically recites the statute, but make no effort to particularize the accusation.
-- No legal problem if time of high bond holding is reasonable in terms of complexity of investigation. --
There is a statutory time limit for hauling before a judge. 48 hours. That was met. There is also a statutory time limit for indictment, 180 days. That's in the future.
But if there is NO PROBABLE CAUSE, then how long is it reasonable to hold a suspect?
-- If lessor defs have made redreduce bail, this phase is resolved. --
None of it is off the table until the statute of limitations runs for making a deprivation of civil rights claim. Perhaps the state will adopt your argument, that in this case, it reasonable to hold an individual without having or articulating probable cause, for a month.
Self-inflicted overload, used to justify extended detention.
[Tongue in cheek] Why not arrest every member of every gang listed in that there Texas database, and then we can hold that 10,000 or 20,000 people for years, while the investigation gets sorted out.
Obviously, you have a good handle on how the system is supposed to work. I'll give you the benefit of the doubt that you assumed everything is in order in this incident, just because you are biased in that direction. But your first contention, that the lawyer in the OP was merely banging the table, that contention is false. He's articulated a specific concern, rooted in law, involving arrest and deprivation of liberty with absence of probable cause.
Your turn to make a substantive contribution. I've had my fill of you.
Now, now... we mustn’t let little things get out blood pressure up....
re: Arresting 177
We need to ensure the law is practical, and the law agrees.
There was enough likelihood that all gang members, there, at that scene, on that date and time, were part of the crimes, or were materiel witnesses to them.
The law does not require that it or government, nor government agents be overwhelmed. As an example, certain statutes require a certain amount of cell space per prisoner, showers ever so often, certain caloric intake, etc.
But if one person, a dozen, or 177 are arrested in Loving County. Texas, population 81, 82 or 84, (depending on whether or not old Mrs. Stevens had died or if the Garcias are in town,) there is no legal requirement for meeting the jail standards, as there is no jail in Loving County!
The sheriff of Loving County, (yes, there is one) would be legally entitled to take reasonable steps to detain a suspect, such locking him in the spare bedroom of his mother-in-law’s house, until he could get time off from attending to victims of a traffic accident or a tornado to take the suspect to an adjoining county’s jail.
/somewhattongueincheek
The overwhelming by the 177 is an action of the suspects, not of the County. Ergo, the 177 are not entitled to profit/benefit from it.
Secondly, my argument with the lawyer/author of this article is an ethical one.
Lawyers have an ethical responsibility to, among other things, not spread FALSE information that might prejudice a case in favor or one party or another, and/or create false public alarm.
His article was entitled “Waco Biker Arrests Create Civil Liability for City.”
For all the legal reasons, as a matter of settled law, that is a false statement. There is no liability.
Author might argue that it “might,” create such a liability, since the sun “might” rise in the west tomorrow, The Elvis “might’ be working in a 7/11 in Clear Lake, Iowa and Hillary “may” be an honest woman. but that level of parsing is best left to U.S. presidents who do not know what the meaning of the word “is” is.
In addition, he makes a claim that the uninformed public (liberals in general, for example) might accept but every lawyer or smart person (FReeper) knows is complete idiocy. To wit; What 12 people comprising a civil trial jury in Waco, Texas are going to decide that they and the rest of their friends should pay Waco, Texas tax dollars to a a bunch of motorcycle gangsters because “they came to town looking for trouble... and like found it”?
(Like my summation?)
That is a case even I could defend, and it would give me an excuse to go back to my bootmaker, Carmen Allen in Ft. Worth, and get a new pair of tax-deductible handmades!
Need to impress the jury, you know.
:)
Not necessarily. Again, see probable cause. I understand that your position is that all 177 arrests are supported by probable cause, and that the complaint is not deficient, etc. And so, we disagree on a foundational point.
- -(Like my summation?) --
No, I think it's bullshit. But I'm sure you think it's fabulous.
This is not a probable cause matter.
First, probable cause is very easy to establish, and virtually impossible to defend against.
Seeing a car weaving over paved road, yellow line or not, is probably cause for an LEO to stop car to check for DWI.
Weaving doesn’t get a conviction, but it gets a sobriety check, but that can get a BAL and that may get a conviction
The only way anyone here is going to eliminate probably cause, is going to be indictment of others.
We have the proceeds of the crime, i.e. dead bodies. Eliminating Probable Cause for Defendant A requires proof that Defendant B committed the crime.
Again, do not confuse PC with establishment of guilt. PC gets LEOs the ability to further investigate the crime, and detain some to fully investigate that crime.
I don't know how to be more clear on the point that I disagree with your conclusion that PC exists for all 177 accused.
Lecture somebody else on the law as you see it. You and I are approximately peers as far as legal education and experience goes, so your wisdom is going to better spent on somebody other than me.
The overwhelming is a settled legal issue; one can not profit form one’s improper actions.
my summation?
My cat loved it... and so would a civil jury of 12 Texans, tried and true, in Waco.
You really think you are going to get a Texas civil jury, any jury, to agree to tax themselves and their friends to pay non-physical damages to a gang of SELF-DESCRIBED OUTLAW motorcyclists?
If such a Texas jury ever retired to the jury room, it would only be to vote on which of the plaintiffs’ motorcycles Uncle Cooter and his 18-wheeler were going to run over first after court was out!
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