Posted on 10/12/2015 6:20:13 AM PDT by don-o
As a teacher of criminal law, I’m fascinated by the cases arising out of the May 17 shootout at Waco’s Twin Peaks restaurant. The issues raised by those cases are complicated, compelling and important.
Because Waco has a small legal community, I know and respect many of the attorneys and the judge involved in the cases. Some of them are my former students at Baylor University. I have not discussed these cases with any of them, however; the observations here are based on the excellent reporting done by the writers for this newspaper.
At least one source (defense attorney Paul Looney) has told a reporter that the district attorney plans to put the Twin Peaks cases before the grand jury between October and December. Some observers may wonder why it would take five months or more to do so, and that’s a fair question.
The answer lies in the complexity of the cases. In criminal law, a lawyer’s work revolves around the elements of a crime. The prosecutor’s task at trial is to prove each of those elements beyond a reasonable doubt, while the defense attorney attempts to show a reasonable doubt as to at least one element. Before a grand jury, the prosecutor must show probable cause as to each element of the crime, which means the prosecutor must assert a claim of evidence on every one of the elements. The problem with the Twin Peaks cases is that those elements pose some complications.
The scene at Twin Peaks was one of mayhem. Dozens of people were running, hiding and shooting within a relatively small area. The large number of people present probably makes it very difficult to figure out who shot whom. As it turns out, that is very important if murder or manslaughter charges are to be brought.
Let’s consider just two of the possible charges in these cases: murder and conspiracy. To convict someone of murder, the prosecutor will usually have to prove that the defendant took an action (i.e., shot a gun) that led to the victim’s death. In conspiracy cases, what’s at the heart of the proofs is the element of agreement — that two or more people agreed to commit a specific crime.
Thus, for the types of crimes many might expect will be charged in the Twin Peaks cases, prosecutors must prove that a specific individual defendant caused a death or that a defendant agreed with others to commit a defined crime. The circumstances of these cases make either one of these difficult. To show that an individual caused a death will in many cases require that the prosecutor connect the actions of one specific shooter with the death of an identified victim or victims; they must show a direct line of causation from a killer to a victim. It is the size, suddenness and scale of the outburst of violence at Twin Peaks that makes this difficult (though not necessarily impossible).
Similarly, conspiracy charges could be hindered by the loyalties of many of the defendants — they are unlikely to discuss any plan if such a plan existed. Unless someone testifies about specific conversations or the evidence shows coordinated action, conspiracy is a challenging charge to bring.
The initial charge made against the bikers was Engaging in Organized Crime, which covers both substantive crimes (like murder and assault) and conspiracies and provides for enhanced sentences if those crimes are committed by combinations of three or more people or members of criminal street gangs. This charge does not get around the need to prove that each defendant committed or conspired to commit a crime. Under this statute, too, the prosecution would have to show either causation or conspiracy in relation to each defendant. Simple presence is not enough.
A likely outcome is that some of the Twin Peaks defendants will be charged, while others will not. Many might be charged with lesser offenses, such as attempted murder, weapon violations or assault. That is not a bad thing.
Criminal law is all about managing tragedy — and to do that well takes careful deliberation. It may well be that only a relatively small number of people are charged and convicted of serious charges, but that would not be a failure by the prosecutor or the court. Rather, it would be the proper result of a time-tested process that properly insists that when we deprive people of liberty or life through sentencing, their crime be proven with certainty and passionless truths.
Mark Osler, formerly on the faculty of Baylor Law School, is a law professor at the University of St. Thomas. A former federal prosecutor who argued before the U.S. Supreme Court, he trained hundreds of pro bono lawyers for Clemency Project 2014.
They could always bring in Janet Reno to burn them alive in their cells. Then have Sandy Burglar steal the evidence while Boner cries, and the Turtle hides in his shell.
lowering expectations. they know they’re in trouble
Many of us here saw that after a few days. Can't figure out why the citizens of Waco are letting this drag out. THEY are the ones going to take the hit in the wallet.
... it would be the proper result of a time-tested process that properly insists that when we deprive people of liberty or life through sentencing ...Ummm, deprivation of liberty can be obtained on probable cause. The author also overlooks the fact that none of the accused were detained on an accusation of commision of violence. All were detained on an accusation to conspire.
“...Because Waco has a small legal community, I know and respect many of the attorneys and the judge involved in the cases. Some of them are my former students at Baylor University. I have not discussed these cases with any of them, however; the observations here are based on the excellent reporting done by the writers for this newspaper....
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You’re right that this is likely meant to lower expectations as they Waco authorities know they’re in trouble. The author (who “knows and respects many of the involved judge and attorneys) makes absolutely no mention of the possibility of fault on the part of BATF and their supporting Waco government operatives.
Especially when so many are lying and cya. I'm guessing the GJ won't be shown the video of a cop planting evidence under vehicles.
Which seemed reasonable for a few days. Though I still struggle with the "overt act" piece of the conspiracy law. I guess the plan is to get at least one indictment and then back all of them into conspiracy off that overt act?
“Under this statute, too, the prosecution would have to show either causation or conspiracy in relation to each defendant. Simple presence is not enough.”
According to some on this forum, just being there is enough in their opinion to hang them.
At any rate, the "overt act" of conspiracy law is in place to prevent convicting people for thought crimes. The "overt act" is a sign that the person involved in the conspiracy has decided to execute the plan to commit a crime. In this case, according to the prosecutor, the overt act is going to Twin Peaks. That part is easy to prove.
The part that is tough to prove, even by inference, is that any individual agreed to participate in or facilitate a rumble.
The large number of people present probably makes it very difficult to figure out who shot whom.
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Especially when so many are lying and cya. I’m guessing the GJ won’t be shown the video of a cop planting evidence under vehicles.
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I only saw the one video that was (apparently) inadvertently released and it was not of the center-of-action but only of one part of the periphery. And that video showed cops running around and an unarmed biker running away from the apparent center-of-action when he was shot down...very possibly in the back. An LEO came by after about 15 or 20 minutes and dropped something down next to the body. My suspicion is that it was a “throw-down” handgun. The only reason I even noticed that was that a FReeper pointed it out by specifying the exact time in that long video to observe it. I didn’t watch the rest of the video so, if that was the video to which you refer, I didn’t notice if it had cops also throwing things under vehicles.
Such “exculpatory” video evidence may well not be shown to the GJ but it sure as hell would be shown at any criminal jury trial and at any civil lawsuit trials.
Criminal law is all about managing tragedy — and to do that well takes careful deliberation.
"Criminal law" in this case (and who knows how many others) is all about fomenting and increasing tragedy using the stalling method of "careful deliberation."
If this man seriously believes there is even the slightest possibility that all 177 folks arrested, let alone 117 so-called "members of criminal street gangs" who had managed to live their lives without ever once being arrested or charged with any kind of crime (at least, in Texas, and all but one were Texas residents) are guilty of conspiring to commit murder, assault, or any other crime even if it was to steal a pack of chewing gum!!! -- then this man belongs in an asylum for the seriously deluded insane.
Instead, he's a teacher. Of lawyers.
Thus, for the types of crimes many might expect will be charged in the Twin Peaks cases, prosecutors must prove that a specific individual defendant caused a death or that a defendant agreed with others to commit a defined crime. The circumstances of these cases make either one of these difficult. To show that an individual caused a death will in many cases require that the prosecutor connect the actions of one specific shooter with the death of an identified victim or victims; they must show a direct line of causation from a killer to a victim. It is the size, suddenness and scale of the outburst of violence at Twin Peaks that makes this difficult (though not necessarily impossible).
This is so much B.S. The prosecutors will indict who they want on whatever charges they want.
As “they” say. “You can indict a ham sandwich”. Or something like that.....
Yet, after indictments are handed out the usual suspects will show up on the thread and say “I told you so! They’re all guilty!”
“They could always bring in Janet Reno to burn them alive in their cells. Then have Sandy Burglar steal the evidence while Boner cries, and the Turtle hides in his shell.”
Brilliant and worth repeating!!
Yeah. Lawyers (and their teachers) have a very strange way at looking at the world of law in comparison to the average Joe on the street.
The only conspiring to commit a crime I’ve seen is by Reyna and his cohorts in crime. From there he had to have help but it remains to be seen by whom although many of us suspect certain actors in this depravity.
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