Cboldt, you remarked: “I’m pretty sure of a few things, even though formal, sworn evidence hasn’t been produced.
some of the dead were killed by OMG members
some of the dead were killed by police
some of the dead were collateral damage
the first use of unjustified force was by an OMG member
the first gunshot was by an OMG member
the government lacks probable cause to arrest somewhere between 130 and 160 of those it arrested. People fleeing from the direction of the parking lot altercation, for example”
I agree with all the above, with the caveat that I do not know the number of those who should not have been arrested.
I am in hopes that your posting can be a nexus of agreement on this forum, so that focus can shift to figuring out what is not commonly agreed.
As for the number of those who should not have been arrested on the basis of insufficient probable cause — I do not have a handle on that number. I do not know the “gang” or club affiliation of all those who were arrested.
It is common knowledge that 62 bikers of non-affiliated clubs were not arrested that day. Then, you have the Weavers. Mr. Weaver, who states he is no longer in a club, came in his vehicle; his wife came on her bike, riding as a member of a club that is an affiliate of the Eastern Star. I do not know if either of them wore anything associating them with the Bandidos in any way . . the Bandidos are the head of the Confederation of Clubs and Independents that was scheduled to meet there at 1pm. The Weavers stated they have valid conceal carry permits and were carrying. That should not send up a red flag, to the contrary. Field observation could determine whether their weapons had been fired recently. Then, they should most likely have been let to go on their way, as the Boozefighters, Christian and Veteran Club members were.
I can well believe that Mrs. Weaver, riding as a member of the Queens of Sheba Motorcycle Club, Order of Eastern Star, was not in the loop with the Bandidos. That, whatever she might have known or sensed about an upcoming rumble between the Cossacks and Bandidos, that is not what drew her to the meeting that day; she was not part of the inner circle of criminal and associated clubs, and based upon what I know about the OMGs, she would have been one of the last they would inform of their intentions. So . . . . based on what I know from the Weavers’ testimony and assuming that there is no evidence to the contrary, she did not ride to Waco in a show of force. Based on what I know now and presuming what we know now is what would be presented to a Jury, the Weavers: should not have been arrested, and a Jury would vote them NOT GUILTY. And YES they should (given the above is the truth) NOT plea down to a lesser offense.
So we have — as far as we now know — innocent Weavers. If they are indicted, they should demand a jury trial. The Jury should vote Not Guilty — if the statute does not apply to them. They should be voted Not Guilty by Jury nullification, if the Statute were reasonably applied to them.
THAT is the problem I have with the Statute. cboldt, I appreciate your responses. But were people such as the Weavers validly subject to the Statute, YES I have a problem with the Statute.
So maybe I am using circular logic. I am placing on the Statute, the application of it to the Weavers. So the DA overreaches. If a DA can overreach the Statute to such an extent, the Statute has to be clarified.
I agree, this may be a distinction without a difference. But to me: Statute OK, but Statute allows overreach —> the Statute is still a problem.
Statutes do not stand on their own wording or logic, but reams of pages of interpretation, and judicial case law, which distorts the original words themselves, the meaning of those words, the interpretation of original intent, to NOT the published Statute itself, which we might all read, but to endless Case Law Opinions that have to be read and digested.
I submit, were the Statute clear and simple, you and the DA would have to agree as to its clear meaning and valid application.
I'm sure all indicted will demand jury trial. The more interesting question from my point of view is how many will press a federal civil rights claim against the government, and how those cases will fare. I'm researching the general subject of "absence of probable cause," (with an eye out for cases that depend on finding conspiracy), and stand by my contention that probable cause is absent for most of the accused (allowing that there is evidence of commission of crimes, even though those allegations are not particularized in the complaint either). Complaints that do little more than recite statutory language, and that lack allegation of fact pertaining to the individual accused, are deficient.
Probable cause is its own thing though, and has a very large volume of case law. It is not unusual for a defendant or the government to appeal a decision relating to probable cause, and probable cause motions/decisions are not uncommon.
As for Mrs. Weaver, you and the government are at odds. The government asserts that it has probable cause to find she committed a crime (but the complaint doesn't allege any action on her part), therefore she is under arrest, and by now, released on bond.
As for my guess of between 130 and 160 (out of 177) being accused, arrested and detained without probable cause, well, it is just a guess. I figure probable cause exists for everybody who used force, I doubt that was as many as 45 or any fewer than 15, and the government may have evidence of a few people who didn't use force at Twin Peaks, having conspired to use illegal force.
You are anticipating something that flat out won't happen. Even though you find the statute to be impenetrable, the DA understands it, the defense lawyer understands it, and the judge understands it.
If the government produces credible evidence that Mrs. Weaver conspired or agreed to perpetrate a crime, then she should be found guilty of conspiracy.
The government is not going to make the argument that you did, that agreement to ride (even if implicitly "ordered" by club rules) or agreement to show up at Twin Peaks, without more, translates into agreement to commit or facilitate commission of a crime.
What you are contenting is reasonable application of the statute, isn't, and everybody who matters in the prosecution of the case knows it.
-- So we have -- as far as we now know -- innocent Weavers. --
Now the question is whether or not the government knew that, or should have known that, when it accused the Weavers and gave them a felony arrest record. Clendennen is suing the government, because, he contends, he was placed under arrest without probable cause.