Appeals court rules two bikers were jailed with sufficient probable cause.

In an opinion released Thursday, Justice Rex Davis of the 10th Court of Appeals declared that officials had sufficient probable cause to arrest two bikers after the May 17 Twin Peaks shootout in Waco.

The melee killed nine men and injured another 20, resulting in the arrest of 177 bikers, each initially held on controversial $1 million bonds on a charge of engaging in organized criminal activity.

Final autopsy reports were released last week on the nine killed in the melee, but ballistics evidence remains publicly unavailable, pending the completion of an investigation headed by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Both bikers involved in the ruling, Marcus Pilkington, 36, of Mexia, and Reginald Weathers, 43, of Forney, are represented by Austin attorney Adam Reposa.

Pilkington and Weathers filed applications asserting that they “were being illegally confined” and that officials lacked probable cause that the two were guilty of engaging in organized criminal activity that day.

Thursday’s ruling cites a section of the Texas Penal Code which states that a person commits the offense if, “with intent to establish, maintain, or participate in a combination or in the profits of combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following: murder, capital murder ... (or) aggravated assault.”

First, I must correct myself a slight amount;
I was wrong in saying it was from the same guy (exactly), although it was from the same web site, and same organization EXACTLY that issued the press release you've been citing on thread after thread, that placed blame on Cossacks for initiating the shooting.

In your own words, haven't you been saying much as "bikers are even saying that Cossacks started it"? If that is not precise, then at the least you have long been saying words to that effect.

You should have went and found the correction I mentioned to you, yourself.

Or --- have you known pretty much all along about that small detail, yet decided to bury it so you could continue to play both ends against the middle?

The org you have been quoting, months ago amended the preliminary (and hasty) news release of May 18th, by way of posting on the same page, AND DIRECTLY ABOVE the breathless "news release" published on May 18th, a follow-up article posted on May 21st.

Didn't you know that? If not, why not? It's been one of your sources which you've milked -- and apparently willfully misrepresented for failing to have taken into consideration the 3 days later follow-up.

I'm spelling it out here, as I seem I must do with each interaction with you, regardless of what issue is being discussed, you do play dumb quite well. I'm not the only one who finds it to be quite tedious, of that is there has been evidence for on these Waco threads, from the get-go.

Here, where you should have looked, instead of while you were at it relying on what was at best ---second-hand & third-hand information, that likely came from some source (to the lawyer) which was not cited (but likely to be from a Bandido) but was entirely unattributed. Which makes it to be hearsay, repeated from California, as if that actually held much weight --- and even then --- had been corrected/amended by a followup note published on the very same web site.

http://onabike.com/motorcycle-news/category/confederation-of-clubs/

and below, the change of tune from "Cossacks started it" to conveying more of a "we don't know" who did;

As the altercation became a brawl and erupted outside Twin Peaks, SWAT teams and police were standing outside the restaurant on a tip that there would be a problem with the 1% clubs. It is unclear who opened fire first, but when all was said and done, there were 9 people dead and 18 injured. [bold added to help your poor little parakeet eyesight]

As has been pointed out to you before, Cossacks and Scimitars (along with most every other club which had members present that day, other than Bandidos) do not ordinarily, or at all widely and regularly vaunt themselves as "1%'ers".

They were not listed on the most currently accessible official law enforcement gang assessment & discussion publication(s) either ---BUT--- Bandidos, and that club only, was (fwiw) listed on official law enforcement produced & circulated publication.

Even then, that assessment alone may not make Bandidos into being fully "criminal biker gang", or else we could be convicting people right and left from what is found written up about whoever in law enforcement 'rap sheets', and I'm talking here about the kind of rap sheet where police are doing all the talking (and unanswered accusing) above and beyond mere listing of prior arrests & convictions as for any particular individual.

There is such a thing as individual rights. Those are not forfeited simply for reason of being accused, and accused rather vaguely, at that(!)

To even charge, much less convict one or several persons for what others did, or for what these *others* may have fully intended/planned on doing, when those same relatively uninvolved persons were not part of pre-planning and/or actual commission of some crime, would be abuse of legal process on part of law enforcement and prosecutors at best, and is one of the ways that gross miscarriage of justice has a high possibility of occurring.

If you don't understand how that can be, then could we chalk that up to giving too much (seemingly blind) trust to law enforcement authority, and legal process?

Look, I appreciate your efforts on past threads to be accurate, and possibly even, even-handed.

At least you have been decent enough to make effort of being honest, and apparently (to my eyes) have not been trying to overly massage what information there is ---- while at the same time making noises as if those who have been accused (with blanket charges filed against one and all) are likely to all be equally guilty.

But I'm not going to play "go fish" while trying to divine your intent as for why I should go look.

Maybe later. I'm sure the same thing will be discussed again, and perhaps(?) someone just may mention that if this same guy who was allegedly, by his own words, not directly involved in the fighting(?) was quite possibly not close enough to where things did start to be able to determine how things started, and thus be able to accurately tell who it was that was most primary aggressor, and who it may have been that was defending themselves.

And then there is the affiliation angle. If affiliated with Bandidos (the guy was, wasn't he, I confess I did not go and re-check) then not only might the man be biased, he may feel compelled to refrain from giving testimony against any Bandido.

He could get shot by some other Bandido, you know?

“if those who have been accused (with blanket charges filed against one and all) are likely to all be equally guilty.”

I don’t believe they will all be found equally guilty.

Each individual should accept, and be held accountable for, his or her own actions and decisions.

Someone pointed out on one of these threads, that for the conspiracy charge, the charges have to be the same for all those charged as a part of the same conspiracy. So the charges were “cookie cutter” for a reason.

As discussed here, the judges are finding probable cause for those charges. Following their reasoning as cboldt summarized, I can see the logic. There was one dissenting judge. Who got the application of the actual statute (as written, according to legislative intent, etc.) right in these cases, the judges finding probable cause, or the dissenter? I have been meaning to ask cboldt about that.

Not all bikers present were arrested that day. As I observed elsewhere, it seems the cops used the Gangs’ own patching guidelines as to who got arrested: Cossacks, Bandidos, and members of their support clubs, including those who wore a patch saying “I support the Fat Mexican” with said fat Mexican’s image. Everyone knows who that is . . . Do they think it is cute or funny to wear the Fat Mexican patch? Or do they mean what the patch says, which is “I support the Bandidos”??

IOW the arrests were consistent with the charges and the recent findings of probable cause. They were not random, rounding up any and all bikers . . .

Probable cause is a lesser standard than guilt beyond reasonable doubt. I do not know how intent / agreement with conspiracy etc. is proved in court. I don’t know how many will actually be tried, but don’t believe it will be everyone.

Getting arrested, having to post bond, wearing ankle bracelets, etc. is a burden. On the face, it seems excessive for “innocent” bikers. But who ARE those innocent bikers? Those with no prior arrests? Those who ran and dove for cover? We can read as much as we know about their bios and have more sympathy for some more than others. I don’t think we will know until the ballistics reports come back in ~ Nov. Each person has a better idea of his or her own culpability, and they and their families and their lawyers can and should do what they can for individual justice in the mean time.

Not only were not all bikers arrested, as has also been pointed out, the Gang members and their associates were NOT arrested for merely being gang members or their associates, nor for showing up for a meeting. They were arrested at a crime scene of unprecedented proportions.

Nine people are dead, at least one more seriously wounded. Their families will be suffering for years, and affected for the rest of their lives.

What is the culpability of the “innocent” bikers? Is it criminal, civil, or merely moral in that supporting a criminal gang in some way contributed to people getting killed? What is the just outcome for the “innocent” bikers? Time served? Charges dropped? Suits for wrongful arrest? An examination of conscience regarding his or her own actions and decisions? A decision to stop supporting criminal gangs? Some or all of the above?

Who is most to blame for their arrests? the cops who put the cuffs on them, or the Bandidos and Cossacks who called them to Waco that day (presumably for a show of force) proudly wearing their support patches so the cops would know who exactly to arrest?

Justice for All seems best served if the Gangs are disbanded and put out of business. I don’t know that this case has the legal “oomph” to do that. I do not believe that the rights of citizens should be stepped on in order to bring that about.

How about all innocent bikers in the State of Texas, not only those arrested, voluntarily disassociate? Gangs cannot cause as much harm without their willing support groups.

This is a Mess, and yes it is Sickening that something like this can have happened in the US, and may it never happen again.

Respectfully, and etc.

Someone pointed out on one of these threads, that for the conspiracy charge, the charges have to be the same for all those charged as a part of the same conspiracy.

Yeah, but what evidence is there for actual prior conspiracy for those who ducked and ran for cover?

That would be needed. Lack of that, for whomever there is no evidence for that, should equate to the charges being dropped, just about the time it was discovered that a DA couldn't honestly make the case in regards to whichever individuals there is lack of anything but presence at that meeting, and wearing colors.

If there was any mistake made --- whomever it was they were mistaken about could be re-arrested, and charged anew.

Unless there is some valid info that would make it out to be that everyone actually agreed to go there that day purposefully intent upon a violent confrontation.

I don't believe that was how this happened, but that is how the original charges basically said that it all happened.

There is nagging disconnect which cannot be well enough stitched together for reason of mere membership of a motorcycle club, + presence at the scene...except for just maybe, Bandidos, since they've been previously identified (fwiw) as a 'gang' and one that had a history of *some* (but not all, not even close) of its membership having engaged in what could be labeled organized criminal activity.

Other clubs lack that sort of history, regardless of other concerns. Which means that they are not gangs, as gangs are spoken of in criminal code.

Yet they are being talked about, in this or that manner as if they were, not necessarily by you (though you do talk like that to an extent) but most everyone who was arrested (all 177) have been tarred and labeled with that sort of talk.

One guy here, after going over some of the sort of things you've touched upon, ended his comment to me, that the bikers had forfeited their rights.

I don't think so. Not yet.

Particularly for those who squeezed no triggers (except maybe in defense of their very life? there could possibly be some exception made there) and who were not present there that day for reason of intending to START, engage in, and intending to finish off, violent assault & murder.

Lacking deliberate premeditation as for some level of crime, equals lack of conspiratorial intent to be inclusive of all which eventually did occur.

Law enforcement agencies have long been trying to take down 1%'er MC's. The Bandidos have been in law enforcement cross-hairs for a long while.

I do wonder what the roles of the undercover agents had been, in the months leading up to May 17th.

How much did they egg on an encourage this [,,,,] before it finally came to a head?

"Let's do it!" ???

I wonder, but do not expect anything close to real truth from law enforcement, and even if so on some levels, by the time it gets to a DA, and that office is allowed to pick and choose what they are willing to admit to, then goodbye truth, we hardly knew you.

-- Someone pointed out on one of these threads, that for the conspiracy charge, the charges have to be the same for all those charged as a part of the same conspiracy. --

I've read that contention, and would say in the universe of conspiracies, "it depends" on what exactly the agreement was, and how the parties entered into the agreement (to perpetrate murder or aggravated assault). Even if all of the accusations can be identical, there is a question of whether or not the accusation contains enough factual allegation to support a finding of probable cause. Those are two separate questions, and the one that controls is the second one, the accusation must contain sufficient factual allegation to allow an objective magistrate to conclude that the accused individual probably committed the crime.

In this case, I disagree with the contention that the accusations must be the same for all accused. The accused cover a wide range of expectation and experience. The only way a one-size-fits-all accusation makes sense, is if you think all the accused committed a criminal act. If you think some of them are innocent, after reading the allegation, then the allegation isn't alleging enough facts to make you think the person committed a crime.

I don't think the affidavit is sufficient. It relies on hindsight to the accused (hindsight on the part of the accuser is typical, and reliance on hindsight on the part of the accuser is okay), an "after the incident" set of facts, in order to infer conspiracy on the part of the accused. If there had been no shooting, the judicial finding would have been that there was not probable cause that the accused conspired. My criticism is in part based on the logic that conspiracy "after the fact" is nonsense. I see no recitation of evidence that the individual accused agreed with others to support violence on behalf of a gang. Prior agreement (conspiracy) is inferred solely from the violence, the presence of weapons, and being associated with an identifiable group.

The judges state this inference: "The profusion of firearms and other weapons recovered from the rival gang members reflected anticipation or planning of a violent encounter." That is, the presence of weapons (there is no allegation that the weapons were possessed illegally) indicates a plan to use the weapons to perpetrate a crime. I say "maybe, maybe not," and would expect additional facts before concluding that the presence of weapons creates a reasonable inference that an individual participated in conspiracy. Clendennen, for example, carried a pocket/pen knife.

We conclude that the magistrate could have reasonably inferred from the profusion of weapons at the scene and the subsequent violence that Pilkington and Weathers, as members of a criminal street gang, each agreed "with one or more persons that they or one or more of them engage in conduct that would constitute the offense" of capital murder, murder, or aggravated assault.

If law enforcement had probable cause of mass conspiracy to perpetrate murder and/or aggravated assault, in advance of the shooting, then they screwed up by not arresting the 190+ criminals in advance of the violence. My conclusion is that arrests did not take place, because there was not probable cause of a mass conspiracy.

In addition to that logical "leap" to find conspiracy, the majority finds that wearing a support patch is sufficient to show "intent to participate in a criminal combination that extends beyond a single criminal episode." This suffers from the problem I described to don-o last week, or the week before. Paying "protection money" is not distinguished from extorting protection money. Both activities are cast as intent to participate in a criminal enterprise. Again, I believe more facts are required to have probable cause to believe that the individual accused has intent to participate in a criminal enterprise.

Both elements, "participation in a criminal gang" and "conspiracy," are required.

Finally, aside from the issue of conspiracy, the opinion is interesting in what it says about those who perpetrated violence. The appellate court finds the affidavit deficient in relation to crimes of commission.

Plainly, the affidavit does not allege that Pilkington or Weathers committed one of the underlying offenses of capital murder, murder, or aggravated assault ...

Now, the affidavit SAYS the accused did "commit or conspire to commit," so the affidavit does make the accusation. But the court says there is no allegation that ANY of the accused committed violence. Pilkington and Weathers are named, but the affidavit is identical for ALL accused, even those who committed violence on the scene.

-- Has anyone who was arrested on the cookie cutter John Doe arrest warrants had those charges dropped? --

Five were unarrested the morning after. They were not members of Bandidos, Cossacks, or affiliated groups.

-- Having LE allegedly listing them as 'gangs' does not make that to be so, not for purposes of the wordings, and intents of the gang enhancement sort of law those present that day were all equally charged with. --

I looked at a summary of Texas law on that question some time ago, early on, and certainly agree that "support patch" would not be sufficient to sustain a gang conspiracy conviction. It may or may not be enough to establish membership.

After composing my latest missive, and reflecting on what I wrote, and what you wrote, the "conspiracy" angle is easier when the group is small, say 3 or 4 conspirators to commit robbery, etc. A small group like that can be alleged to have talked about the crime plan and so forth. But I can't recall any mass conspiracy case (say 30 or more with the same intention), EVER.

I'm not surprised at all the the Texas courts rule the way they do. What choice do they have? If the courts admit the state lacked probable cause, it opens the barn door to damages. So, whatever "logic" it takes to find probable cause.

There is a lesson here for LEO too - the bigger the screw up, the more likely to get the courts to go along with it.

“I believe more facts are required to have probable cause to believe that the individual accused has intent to participate in a criminal enterprise.”

Thank you for another reasoned analysis. There is a lot to digest.

Your comments also brought a thought experiment to mind.

Say I like jewelry (not me personally, other than my wedding ring and a watch). Someone starts a jewelry heist gang. Everyone is aware that the gang exists to heist jewelry. Some of them have been caught and prosecuted in the past for jewel thefts. But they also regularly hold jewelry shows at local restaurants where members and associates can trade and buy jewelry at reduced prices. To be a member or associate, they have to pay dues. They can buy membership patches saying “Support your local jewel thief.”

The hypothetical I, liking jewelry, especially at those prices! pay my dues and wear the patch.

I go to my first jewelry show one Sunday. I don’t even buy a single piece. Heck, there was no chance to, the cops busted it up before the show got underway!

Most of the time, there is no problem, because even if the cops show up once in a while, there is no proof any of that jewelry is stolen, so no one is arrested. This time, they had intel that some of the pieces were indeed stolen.

They arrested me along with everyone else wearing the support your local jewel thief patch, for conspiring to buy or sell stolen jewelry in conjunction with a criminal gang.

This was my first jewelry show, and I didn’t buy a single piece! I don’t know anyone specifically who stole any jewelry. Most of the members have never stolen a jewel in their lives! Only a few steal jewels. The rest just like jewelry! They like to gather, and show each other their jewelry and trade and sell it to each other. It is perfectly legal, free association to meet with other jewel lovers (even if some of them are jewel thieves — the gang doesn’t tell us which ones). Most of the jewelry is not even stolen; to the knowledge of most people attending, it is not apparent that ANY of the jewelry is stolen. wink, wink.

Was I wrongly arrested? On the basis that the affidavit did not contain sufficient facts of my own individual complicity?

If so the statute is more generous to me than my conscience, which upon reflection informs me that despite all my protestations, I knew that the reason the gang exists at all is to heist jewelry, and there is no doubt that at least some of the bargain priced jewelry is stolen.

AS WELL THE STATUTE SHOULD use the utmost discretion so as to not drag innocent people into the net along with the big, guilty fish . . . even letting a bunch of little complicit fish go along with their lives because they personally didn’t steal any jewelry and in some cases, never bought any stolen jewelry. If they did, it can’t be proved . . .

. . . and the State rightly has the burden of proof.

So after we get out of jail and file our suits for wrongful arrest, we all swim off into the sunset, wearing our support your local jewel thief patches . . .

So . . . my complicity is a moral situation between me and my conscience, nothing more?

Don’t feel obliged to take the time to analyze this hypothetical thought experiment. Just me trying to understand how these RICO-type laws are rightfully applied. They don’t seem to inherently have the dangerous reach I have previously feared.

Other than that they are applied by DAs and judges; and I can’t vote out the ones in Waco. The citizens of the juries will have their say.

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