Twin-Peaks prosecutions will wait for next McLennan DA

Even a local, elected judge in McLennan County is now openly questioning lame-duck District Attorney Abel Reyna's judgment.

The Waco Tribune Herald reported that Judge Ralph Strother decided to postpone the next trial related to the roundup following the Twin Peaks biker massacre in order to let the next District Attorney make decisions about the cases.

Strother said he'd been “troubled by the whole Twin Peaks matter from its inception.” Reported the Trib's Tommy Witherspoon:

It was Strother, even more than [defendant Tom] Mendez’s attorney, Jaime Peña, who questioned prosecutors Thursday about the riot indictment and expressed concerns that they, in effect, had turned what normally is a Class B misdemeanor into a crime that possibly subjects the defendants to life in prison.

Finally! Grits has been waiting three years to hear somebody in authority criticize Abel Reyna's blatant prosecutorial overreach, which IMO amounts to an abuse of prosecutorial discretion. Nearly all of the 155 people indicted over the incident had nothing to do with the shooting (four of the nine dead were shot by police officers, and the identified biker shooters reportedly are all dead).

Prosecutor Robert Moody doubled down defending the system and criticized the judge: “Honestly, I think it’s a little inappropriate for the court to be making its own judgments on whether it is the charge or not,” Moody said. “I think that’s for a jury.”

Here's the unfortunate thing: In a way, given how the system works now, he's right. Prosecutors in 21st century America have near-complete discretion to charge whomever they want with whatever they want. Many prosecutors routinely over-charge, either to gain leverage against a defendant or, as in this case, whenever they find it politically useful.

That authority was baked into the system from a time when judges and juries had more say in the process. But in recent decades, the justice system has come to rely almost exclusively on plea bargaining instead of jury trials. As a practical matter, that removed judges and juries from the process in 97% of Texas criminal cases, leaving nearly all of the institutional power of the state in the hands of prosecutors.

So Moody is right: Prosecutors in general have unrestricted power when it comes to what charge they should bring against defendants. But prosecutors' overarching power in the modern justice system is a bug, not a feature, and Strother is reacting to its seldom-discussed, unintended consequences. Most people would view the abuse of power demonstrated in the Twin Peaks debacle as evidence the system must be fixed, not that absolute prosecutorial discretion is a valuable thing to be defended.

Clearly Judge Strother is tired of sitting by while DA Abel Reyna botches the Twin Peaks cases to a degree that makes the ATF raid on the Branch Davidians look like a well-planned surgical strike. He's hoping, like the rest of us, that McLennan County voters have selected a rational, grown-up person to run the department and is willing to wait to see. It's probably the best alternative.

Pot proposals, waiting on bail reform, and other stories

Here are a few odds and ends which merit Grits readers attention:

Juvenile justice agenda detailed
Following up on the Texas Appleseed/Texans Care for Children report on school discipline, the Dallas News editorial board suggested this agenda for juvenile justice reform in 2017 at the Texas Lege: "Find funds to help schools hire more counselors and mental health professionals; eliminate the use of tasers and pepper spray on students if a weapon is not involved; improve data collection on police activities in schools to better understand the complexities of the school-to-prison pipeline."

Waco DA: We don't need no stinking evidence
The first trial of a biker charged after the 2015 Twin Peaks shootings will occur in April, nearly two years after the event. These are weird cases. In the overwhelming majority there is no individualized evidence against the defendants. A prosecutor in the story said the trials would take about two weeks, but that presumes there's evidence to present that these individuals participated in a conspiracy. By all accounts, for most of them there's not. Here's a Grits prediction: When all is said and done, when trials are all over and appellate courts are through with it, I don't believe the number of people convicted of any crime related to the shootings, out of the 155 who've been charged, will ever reach double digits. The McLennan DA long ago entered witch hunt territory regarding these cases, and so far the judiciary has declined to rein him in. But even in Waco, Texas, you can't convict dozens of people with no accusatory evidence at all. And in the main, that's the Kafkaesque situation in which the overwhelming majority of these 155 defendants seemingly find themselves.

Bail reform poster-child
This Dallas News story offers up a poster-child case for bail reform: "Why Dallas County can set $150,000 bail for a $105 shoplifting charge, and how taxpayers lose." We still haven't seen legislative proposals yet implementing the Judicial Council's bail reform recommendations. But in the meantime, New Jersey is implementing a risk-assessment based system which assumes most defendants will be released while awaiting trial. Grits hopes the Texas bill follows suit.

Pot proposals
Here's a Fort Worth Star Telegram article detailing the various bills softening penalties for low-level marijuana possession being filed at the Texas Lege. The new Houston police chief, Art Acevedo, is predicting Texas will shift policies on pot. Also, in the Bryan College Station Eagle, retired District Judge John Delaney supported "decriminalization" of marijuna - a term which one discovers upon entering the debate means different things to different people. In Texas' context, "decriminalization" means backing HB 81/SB 170 creating a new civil penalty for pot possession instead of making it a criminal charge like a traffic ticket. Wrote Delaney:

Supporters of "decriminalization" argue it's a better approach because it doesn't result in the numerous collateral consequences of a normal conviction. One of those is an automatic 180-day driver's license suspension, regardless of whether the offense was connected to driving a vehicle. And license reinstatement isn't automatic, unlike release from jail after serving a sentence. To get a license back one has to file an application, pay a $100 fee, buy expensive "SR-22" insurance, and complete a 15-hour drug education course. 

Another consequence is a permanent criminal record of the conviction. It can affect employment opportunities for a lifetime. Just ask any small business owner about how hard it is to hire an employee with any drug conviction on his or her record, even if it happened more than a decade earlier. 

Another advantage to "decriminalization" is that it begins with a citation instead of an arrest. That avoids the two hours of police time it takes to process someone who's arrested, leaving officers free to respond to calls such as burglary or domestic violence.

Cornyn key for D.C. justice reform
Grits fails to see why criminal-justice reform legislation couldn't pass under a Republican Congress. We've won reform measures in Texas with an all-R government. Maybe Texas Sen. John Cornyn can pass his sentencing reform bill now that there's no risk that a Democratic president might claim credit for the success.

Prison Policy Initiative 2016 retrospectives
Our friends at the Prison Policy Initiative ended the year with roundups of 2016's best criminal-justice commentary (including a couple of Grits items), the year's best research, and their own wish list for "winnable" reforms in 2017. Lots of good stuff amidst those links for those with a little reading time on your hands.

First Waco biker case headed to trial in January

The absurdist mockery of justice going on surrounding the Twin Peaks biker cases - in which  154 bikers were indicted on first-degree felony charges for conspiracy after nine were killed in a shootout  - continues unabated, below the radar screen of anybody but apparently Tommy Witherspoon at the Waco-Tribune Herald. The first defendant has now requested a trial and the case is set for January.

The request comes as the McLennan County District Attorney’s Office continues to provide hundreds of thousands, if not millions, of pages of discovery materials to the bikers’ defense attorneys, including copies of police reports, hundreds of hours of audio and video recordings of the incident and subsequent interviews with bikers, 700,000 pages of cellphone records, tens of thousands of photographs and Facebook posts.

Discovery had been repeatedly delayed but now:

defense attorneys involved in the Twin Peaks cases have been given five rounds of discovery from the DA’s office, which is required by statute to provide any and all evidence to the defense, regardless of whether the evidence points to guilt or innocence. 

The DA’s office recalled the sixth round of evidence last month after it was discovered some of the bikers’ cellphone images that were released contained child pornography.

County officials have been keeping the public in the dark about the expense of the prosecutions, but Witherspoon takes a stab at estimating the different components of the cost:

In the meantime, county officials are contemplating how to fund the huge expense of prosecuting all the cases. McLennan County Auditor Stan Chambers said the county has paid $62,026 so far in court-appointed attorneys’ fees. That total will multiply dramatically as the cases drag on and as the 70 to 80 court-appointed attorneys continue to review the mountain of discovery at $75 an hour for out-of-court time and $80 an hour for in-court time. 

As the first cases are tried in McLennan County, the potential remains for changes of venue for remaining defendants. Trying the cases away from Waco would double or triple the cost to the county, officials say. 

As more bikers go to trial, their attorneys likely will feel the need to hire experts in a number of subjects, including ballistics, crime scene analysis, DNA and others, which also will increase the costs to the county. 

And it has been suggested the DA’s office could upgrade the charges against a few of the bikers to capital murder and seek the death penalty in those cases. Capital murder cases are extremely expensive and include year after year of appeals if there are convictions.

The defense attorneys for the first guys up say that, despite hundreds of thousands of pages of discovery, they have yet to find any inculpatory evidence accusing their clients of crimes. Earlier a defense attorney speculated that no one may be successfully prosecuted since the actual shooters involved in the massacre were all killed by police snipers. So the overwhelming majority of defendants were simply witnesses at a crime scene, not perpetrators, a fact which raises the question: Why hasn't DA Abel Reyna dropped charges against un-involved parties long ago?

Threats of death coerced false testimony in Waco innocence case

A judge in Waco recommended granting a habeas corpus writ on "actual innocence" grounds in a case which demonstrates the risks of false convictions from plea bargaining and informant practices. A report from Tommy Witherspoon at the Waco Tribune Herald (Aug. 20) began:

Convicted murderer Richard Bryan Kussmaul and the three co-defendants who testified against him 22 years ago are “actually innocent,” and Kussmaul should be freed from prison, a retired state district judge ruled Friday.

Judge George Allen, who presided over Kussmaul’s 1994 capital murder trial, recommended that the Texas Court of Criminal Appeals grant applications for writs of habeas corpus for Kussmaul, James Edward Long, Michael Dewayne Shelton and James Wayne Pitts Jr.

Kussmaul is serving a life prison term in the 1992 shooting deaths of Leslie Murphy, 17, and Stephen Neighbors, 14, in a mobile home near Moody.

At a hearing in July, Long, Shelton and Pitts all testified that they gave false testimony against Kussmaul at his trial because a prosecutor promised them probation and a deputy coerced their confessions by threatening them with the death penalty.

The judge’s findings will be forwarded to the Texas Court of Criminal Appeals, which will make the final decision.

Allen wrote in his four-page opinion that newly discovered DNA evidence that was not available at the time “constitutes clear and convincing evidence that no reasonable juror would have found (the defendants) guilty beyond a reasonable doubt had the new evidence been available at trial.”

Without the DNA, nobody would believe these recantations. With it, and 20/20 hindsight, the grim reality which confronted these four defendants appears as obvious as it does stark. The prosecutor* A Sheriff's detective implicitly or explicitly told these guys: Accuse your friend or we'll kill you. The prosecutor is seeking the death penalty, they'll stick a needle in your arm, and you'll be dead. Or you can bear false witness against your friend and live. You choose. And three of them took the bait. Should we be surprised?

Does anyone imagine that any of the innocence reforms installed in Texas so far would prevent that from happening? Not in a million years. The same incentives and practices which caused these false convictions play out all the time in courthouses across Texas. From a game-theory perspective, the three men made a rational choice, if perhaps a dishonorable one. At the time, this was not a situation in which the truth will set you free.

Texas has done a good job making sure false convictions can be rectified by DNA testing when biological evidence from old cases is available and probative. But there's a lot more to do to prevent false convictions on the front end, particularly with regard to informant incentives and the plea bargain system.

*CORRECTION: McLennan County Sheriff’s Detective Roy Davis, not a prosecutor, threatened the men with the death penalty. However, the prosecutor in the case, unnamed in the story, agreed to the deals the judge criticized on the grounds that they "created a powerful incentive for each of them to falsely admit culpability," while "material inconsistencies between and among [them] ... call into doubt the veracity of those prior incriminating statements."

Civil suit may force Reyna recusal on Twin Peaks, and other stories

Here are a few odds and ends which merit Grits readers' attention:

• A proposed resolution this Thursday at the Austin City Council directs city staff to draft regulations for municipal court judges significantly limiting when people may be arrested for nonpayment of Class C fines.
• Whether Dallas can purchase the shuttered Dawson State Jail depends on the price.
• McLennan DA Abel Reyna may have to recuse himself from prosecuting the Twin Peaks biker cases because of a civil suit against him. Normally prosecutors have absolute immunity and can't be sued, but Reyna likely opened himself up by directing the police investigation on the ground and usurping the officers' role. 
• The Christian Science Monitor has a piece on the Laura and John Arnold Foundation's risk assessment model, for which Grits harbors high hopes. Related: From USA Today, "Justice system too costly for the unconvicted." Also: from the Houston Press, "If Mom doesn't pick up her phone, you might end up stuck in jail."
• The chairman-elect of the Texas Association of Business had a column in the El Paso Times urging the Lege to raise the age of adult criminal culpability in Texas from 17-18.
• Amanda Woog's Texas Justice Initiative data project continues to receive attention. See a lengthy Huntsville Item story on the topic.
• For the first time, proposals for criminal justice reform made it into both national party platforms, noted the Brennan Center.
• Out of New Mexico, read what happens when a long-time District Attorney decides to prosecute police officers over bad shootings.
• How traffic tickets can destroy indigent people's lives. See also this essay from the Boston Review on the history of debtors prisons in American jurisprudence.
• SCOTUS last term continued the decades-long trend toward gutting the Fourth Amendment like a fish.
• The jury trial is dead. You're shocked, I know.
• Your correspondent last week made some LED-lettering signs for our friends at the Austin Justice Coalition to use at protests and events. I thought they turned out pretty well:

 

Bikers organizing around Twin Peaks cluster#@*! in Waco

Bikers are organizing to protest the kangaroo court spectacle in Waco in the aftermath of last year's  Twin Peaks biker shootout. If you don't remember (since most of the press outside of Waco seems to have forgotten), bikers killed five people in a dispute that escalated to gunplay while four other bikers were killed by police snipers who were stationed outside the gathering, according to ballistics reports.

That was a tragedy. But the real travesty of justice came when police rounded up 192 people at the scene and JP W.H. “Pete” Peterson, a retired state trooper and non-attorney, ordered one million dollar bail amounts for 177 of them. In all, "154 bikers have been indicted on first-degree felony charges that allege they were acting as members of a criminal street gang that day," reported the Tribune-Herald's Tommy Witherspoon. Courts have upheld those actions (blind justice, indeed!), but it's clear most of those people weren't involved in the shootout and needn't ever have been arrested. No one has yet to be brought to trial and some have speculated that the only people against whom authorities have evidence are already dead.

Check out this lengthy news/conference presentation by the National Council of Clubs, a coalition of motorcycle clubs:


And here's part two:



Man, I miss Sputnik. Wish he was here for this one.

Meanwhile, in Waco Tuesday, an attorney filed  motion asking for District Attorney Abel Reyna to be disqualified from prosecuting the Twin Peaks cases. Reported the Tribune-Herald:

McLennan County District Attorney Abel Reyna should be disqualified from prosecuting cases arising from the Twin Peaks biker shootout because he overstepped his authority by “commandeering” the investigation, a Houston attorney said Tuesday.

“There is a big difference between advising and commandeering,” attorney Abigail Anastasio said.

Anastasio represents Ray Nelson, 42, president of the Hill County Cossacks and one of 154 bikers indicted in the May 17, 2015, shootout at Twin Peaks in Waco that left nine bikers dead and more than 20 wounded.

She filed a motion Tuesday in Waco’s 54th State District Court seeking to disqualify Reyna and assistants Michael Jarrett and Mark Parker from prosecuting the Twin Peaks cases because she alleges they are potential witnesses because of the way Reyna inserted himself into the investigation on the evening of the shootout.

“They started calling the shots,” Anastasio alleged in a press conference after filing the motion. “They were the ones who determined the course of the investigation, what steps to be taken next, without law enforcement having a significant role in that.”

See also the Tribune-Herald's Tommy Witherspoon's summation of the story so far published on the anniversary of the event.

DA oppo, snitch scenarios, improving visitation, and a welcome homecoming

Here are a few odds and ends which merit Grits readers attention:

Accusing Gary Cobb
Former Court of Criminal Appeals Judge and current Austin defense attorney Charlie Baird really doesn't want Gary Cobb to be the next Travis County District Attorney, a spot which will be effectively decided in the March 1st Democratic primary. Baird is treasurer of a PAC called Citizens for an Ethical Travis County which has put up this attack site dumping opposition research on the Democratic candidate and accusing him of "misconduct." Strong accusations, and Baird is a credible messenger, particularly among Travis County Democrats. But it's pretty late in the game to be releasing such allegations without a paid attack vehicle. A lot of folks consider Cobb the front runner in the four-way race.

Vanita's Homecoming
Vanita Gupta is not a Texan but after her involvement in the Tulia drug sting cases, as far as Grits is concerned, she remains a beloved adoptee and a personal favorite. I'm looking forward to seeing my long-time friend, who is now director of the USDOJ Civil Rights Division, when she speaks at UT-Austin's Barbara Jordan forum today. See the Statesman's preview of the event. I miss Vanita, we haven't spoken since she became a big shot.

Compensating Alfred Brown
I'll be interested to see if the Comptroller gives compensation to Alfred Dwayne Brown. Based on how they've decided cases in the past where exoneration did not result in an actual-innocence finding, it'll be a judgment call. They've given some similarly situated exonerees compensation and denied others. If they say "no," I'd expect Brown to file a civil rights lawsuit.

Waco drug cop(s) may have lied about informants
A 26-year veteran Waco drug enforcement detective has been suspended after it was revealed he allegedly "lied about his use of confidential informants to obtain arrest and search warrants," and soon thereafter his commander, a 36-year veteran and the department's first female assistant chief, was also suspended.

Reality TV footage gets alleged 'snitch' shot
Speaking of informants, a Dallas man has sued the production company of the TV show, The First 48, after they aired footage of him talking to police detectives that wound up getting him shot as an alleged "snitch." This isn't the first time the show has caused problems in Dallas.

Toward pro-family visitation policies
Check out an absolutely excellent column on problems with prison and jail visitation policies from our pal Doug Smith, who called for "frequent and meaningful contact with their loved ones in environments that allow children to be children, yet only one state has a child-friendly visitation area. Less than ten states have overnight policies, and few of these policies are geared toward overnight stays with children. Few state prison systems include family contact when developing rehabilitative programs.  How do we expect incarcerated men and women to become fully productive members of communities within the very families that will support them upon release?"

Prosecuting fish-related crime in Palau
As many Grits readers are familiar with the Attorney General of Palau (who is now back on the job after a brief, unanticipated hiatus), I should point out this fascinating piece from the New York Times Magazine which references him, though not by name, in the context of the island nation's battle to combat illegal overfishing in waters designated for conservation.

Privately run McLennan jail mired in problems

Our friends Diana Claitor and Rebecca Larsen of the Texas Jail Project have a fine little column in the Waco Tribune Herald today titled "McLennan County jail increasingly mired in abuse." The article opened:

Last month, McLennan County received a notice of non-compliance from the Texas Commission on Jail Standards after the death of 25-year-old Michael Martinez in the Jack Harwell Detention Center.
Three employees of the privately run jail have been arrested and charged with forging government documents after they allegedly covered up the fact that they were not performing visual checks on at-risk people — a violation of federal law. Records indicated that jailers had checked on Martinez within the required half-hour time span, but an investigation revealed that Martinez had been hanging for almost three hours when found.

LaSalle Corrections is the for-profit company that runs the Jack Harwell Center for McLennan County. “We think they’re excellent operators and, unfortunately, sometimes things like this happen,” said McLennan County Commissioner Scott Felton.

But that’s not what families with loved ones in that jail say. At the Texas Jail Project, we have received pleas for help from families concerned about loved ones being refused mental-health treatment, essential medications and medical care.

Several days before Christmas, another story came to light when the Tribune-Herald revealed that a formerly jailed 30-year-old woman filed a lawsuit in Waco’s 170th State District Court against LaSalle Corrections. The lawsuit alleges she was repeatedly sexually assaulted at the facility and goes on to describe an out-of-control institution rife with smuggling, extortion and drug abuse.

Felton’s description of LaSalle as “excellent operators” is strange considering these incidents as well as the history of this facility. Last year, U.S. Immigration and Customs Enforcement (ICE) removed all immigrant detainees from the Jack Harwell Center after ongoing claims of civil rights violations by attorneys and advocates. Prior to May of 2013, another private contractor of this facility, CEC, was cited for sexual abuse and other violations.

Despite ongoing controversy, McLennan County renewed its contract with LaSalle last year with the addition of a 90 percent occupancy clause: If the jail is filled with fewer people than 90 percent of its available beds, LaSalle can end its contract with a 90-day notice. We believe that a jail should not have a contracted mandate to stay full because that results in a deliberate effort to increase the number of arrests.

This does not make Waco a safer community and intensifies mistrust of law enforcement.

Latest McLennan DA screwup par for Waco biker case

Even in a large-scale episode like the Waco biker shootout in May, one would think authorities ought to be able to count the number of dead. Regardless, it turned out the 10th victim listed in the Twin Peaks biker shootout indictments didn't exist and was just a case of the same sort of sloppy lawyering which led the DA to charge dozens of people with the same, trumped up offenses. (Four others were shot by police with rifles from a distance.) Reported the Houston Chronicle:

Everyone has been charged with the same crime - which carries a penalty of 15 years to life in prison - even though police surveillance videos clearly show most of the bikers running from the violence and ballistics tests on guns and bullet fragments have not yet been completed.

"It is a reflection of how sloppy this case has been handled from the beginning," Dallas lawyer Clint Broden said.

"He was really able to bamboozle the grand jury into indicting people for crimes that he acknowledges they didn't commit," said Broden, who added that it was an example of the adage that a prosecutor can indict a ham sandwich if he chooses to do so.

Amanda Peters, a former prosecutor who is now a professor at the South Texas College of Law in Houston, had little sympathy for Reyna.

"This office has already come under a lot of criticism," Peters said. "And you would think that they wouldn't want to do anything to fuel more criticism."

Peters said that from a legal standpoint, prosecutors can easily go back and amend the indictment, but that they have made yet another embarrassing public gaffe.

"This is one more indication this case isn't being handled as cleanly as it could," she said. "Most defense attorneys and prosecutors (in Texas) are scratching their heads," she said. "People I talk to are like, yeah, that is a mess."

The McLennan County District Attorney's Office has tried to do too much too quickly, she said.

"In every one of these mass-arrest situations, it always ends up a disaster," she said. "There are lawsuits filed; settlements; somebody gets kicked out of office or fired - not to mention the mockery it makes of the justice system."

Abel Reyna and the rest of the McLennan County justice system are in way over their heads and poised embarrass the entire state if they don't get a clue and begin to limit criminal prosecutions to people who actually engaged in criminal behavior.

Most Twin Peaks bikers off ankle monitors, few if any prosecutions likely

None of the 177 Twin Peaks bikers remain incarcerated in the county jail, even though all of them initially were assigned a $1 million bond, and of 135 required to wear ankle monitors, reported the Waco Tribune-Herald, all but 22 have been allowed to remove them "after agreements between their attorneys and state prosecutors to amend the conditions of their bonds." Grits thought these comments, representing one of the few informed views I've seen on the topic from anyone outside the DA's office, are likely prescient.

Houston attorney Paul Looney said two of his three clients, a married couple from Brenham, were not required to wear the ankle monitors and his third client had his removed in an agreement with prosecutors.

“I can only speculate, but my guess is that the ones that are still wearing the ankle bracelets present some type of specific flight risk, or, in the alternative, their lawyers are lazy and they just haven’t come in to visit with the prosecutor,” he said. “A lot of lawyers haven’t done that.”

Looney cautioned that there likely is no connection between levels of culpability and those still wearing ankle monitors.

“I have gone through the discovery, and right now I am of the opinion that they might not successfully prosecute anybody who is still alive. I think they may have a couple of dead people they may be able to convict, but the ones who committed the crimes are dead. Everybody else was defending themselves or other people,” Looney said.

If it's really true that no one alive can be prosecuted, history will judge the roundup of 177 bikers much differently than the DA and local officials are presently portraying.

Relatedly, GQ published the most extensive piece of investigative journalism yet on the Twin Peaks massacre, piecing together narratives from dozens of interviews. Give it a read.

Silence on Twin Peaks massacre may 'blacken' reputation of Waco justice

Since the Twin Peaks massacre in May, officials in Waco have mostly succeeded in keeping biker-related criminal cases out of the press. But the silence has grown deafening, prompting AP, the Atlantic, and even the Waco Tribune-Herald opinion editor to call for transparency and lifting an ill-conceived gag order.  The Texas Criminal Defense Lawyers Association last week filed a complaint with the State Commission on Judicial Conduct against the Justice of the Peace who set million dollar bails for the 177 people arrested that day. More than 2/3 of those arrested that day had no criminal record, reported AP. Trib opinion editor Bill Whitaker fears that the official silence, based on a gag order which only applies to one case, "has the power to blacken for decades the reputation of American justice in Waco. It may already be too late."

To my mind, the Twin Peaks episode couldn't worsen Grits' view of Waco justice, but it surely confirms it.

Related:

• Kangaroo court in Waco: No reason needed to arrest packing pastor with CCL
• Why won't authorities say how many in Twin Peaks massacre were shot by cops?
• Veteran Waco cop 'randomly' chosen foreman of Twin Peaks grand jury
• Rigged game in Waco

Kangaroo court in Waco: No reason needed to arrest packing pastor with CCL

Gun ownership is on trial in Waco, so why aren't the NRA and all the open-carry advocates going nuts over what's happening regarding prosecutions from the the Twin Peaks biker massacre?

In McLennan County, visiting Judge James Morgan ruled after an examining trial that there was sufficient cause to have arrested a 65-year old concealed carry permit holder who wasn't wearing a biker cut but a Christian t-shirt (he's chaplain to the Bandidos and two veterans groups) because he was carrying legal personal weapons. The judge declared there was probable cause to support an arrest even though no police "officer could offer evidence that Yager conspired to commit murder, assault or any crime that day" Like everyone else arrested in the episode, Yager's bail was initially set at $1 million.

An earlier examining trial found probable cause to arrest a Brenham couple even though police agreed they were "merely present at a murder" that there was no evidence they committed.

Legality aside, how is it that a Texas judge can declare police don't need a reason to arrest legal Christian gun owners and there's not immediately an army of Second Amendment protesters beating down the DA's door? The silence from that wing of the political spectrum on this issue is deafening.

Regardless, the law doesn't seem to matter in Waco anymore. These are kangaroo courts and a flat-out embarrassment to the state.

RELATED: Why won't authorities say how many in Twin Peaks massacre were shot by cops?

Veteran Waco cop 'randomly' chosen foreman of Twin Peaks grand jury

In Waco, District Judge Ralph Strother selected "longtime Waco police officer James Head" to serve as foreman of the grand jury panel that consider the Twin Peaks biker cases.

Supposedly, reported the Houston Chronicle (July 10), "It was McLennan County’s first randomly selected grand jury since legislators eliminated a 'pick-a-pal' system in which judge-appointed commissioners nominated prospective jurors." And it's just random that a veteran cop made the cut the first time out in the highest profile case in the county's history.

Ironically, the new law eliminating Texas pick-a-pal system was created in large part because of the Alfred Brown case in Houston, coverage of which earned Lisa Falkenberg a Pulitzer Prize. A police officer was foreman in that case and it later turned out the grand jury improperly bullied and intimidated Brown's girlfriend into withdrawing her testimony as an alibi witness.

So for the first post-pick-a-pal jury in the county's highest-profile ever case to have a cop foreman beggars belief. The Chronicle quoted state Sen. John Whitmire, who authored the grand  jury reform legislation, blasting the decision:

“It’s exactly those types of circumstances that the new law was meant to do away with,” Whitmire told the San Antonio Express-News on Thursday. “You can’t get that objectivity, in the eyes of the public, if you don’t get that impartial grand jury. You’re starting with a built-in problem, and Waco needs a dose of transparency.”

Even if it's purely random, Judge Strothers should have the sense to bypass Mr. Head and pick somebody else to ensure there's no appearance of impropriety. As things stand, this move reinforces the view that we're witnessing a rigged game in Waco.

MORE: Local lawyers weigh in. AND MORE: From Murray Newman. UPDATE: Via the Houston Chronicle, see a motion filed objecting of Det. Head's participation in the grand jury, which included this old Far Side cartoon characterizing the rigged proceedings:

Ramping up debtors' prison in Waco

In McLennan County, Municipal Judge Christopher Taylor changed the policy regarding incarceration for unpaid traffic tickets, insisting that anyone who can't pay in full must "sit behind bars for time credit." The Waco Tribune Herald  reported on the issue July 5 in an article titled "Run a red light in Waco? Now you could land in jail":

Most drivers pay [a] fine after making a promise to the judge they will pay a certain amount by a certain date, Taylor said. If that individual doesn’t pay, an arrest warrant is issued, and the person can be re-arrested. After a few hours in jail, the individual goes before the judge again, promising to pay the penalty fees.

Taylor said that’s about to change.

Once a person has not made payments and is arrested again, he said, the individual will be required to pay in full the remaining amount right then, or sit behind bars for time credit.

Ridiculously, "Waco Mayor Malcolm Duncan Jr. said the idea started as a way to help residents by allowing them to sit out a payment from behind bars and not just accumulate additional fines that they can’t get out from under." So the city is pretending they're doing broke drivers a favor by incarcerating them for nonpayment. I bet you they don't receive many "thank you" cards.

Grits passed along this atrocity of a policy to our friends at the Texas Fair Defense Project and their staff attorney Emily Gerrick had this to say:

The title of the article is strange to me, since the Waco municipal court has been jailing low-income people at incredibly high rates for a long time now. In 2013 alone, Waco jailed people in more than 10,000 cases for debt stemming from traffic tickets and other class C misdemeanors.

Putting traffic offenders in jail just because they can't pay something does not improve public safety. Instead, it costs struggling people their jobs and traumatizes their children. Waco needs to stop wasting taxpayer dollars on jail beds for debtors and start thinking about what's best for its residents. 

I think the most important thing for Waco to do is to start utilizing statutory waivers. Waco's self-reported data indicates that it waived debt in 0 cases in 2013, and that figure is consistent with an independent OCA study from 2011. Waco is also very hesitant to use statutory payment alternatives like community service. While more than 60% of 2013 cases included jail credit, only about half a percentage point of cases included community service credit.

So Waco is already using jail disproportionately to punish Class C misdemeanors, never waives fines, and almost never utilizes community service. In other words, Taylor's new dicta just doubles down on a bad policy.

Further opined Gerrick, Waco could also use "positive tools to encourage on-time payment of fines instead of relying on heavy-handed and expensive strategies like ordering jail time for failure to pay," including "amnesty days and in this particular instance some leeway and adjustments of payment plans when somebody misses a payment instead of automatic issuance of a warrant."

That'd be wiser and more cost effective than jailing anyone who can't pay. But this policy change is more about Waco's pointlessly punitive local legal culture more than any legitimate public safety goal. "Cost effective" really isn't an issue at play.

Rigged game in Waco

One of the few bright spots coming out of the Twin Peaks massacre in Waco is that Tommy Witherspoon of the Waco Tribune Herald, one of the top crime-beat reporters in the state, for Grits' money, is on the scene to cover it. (I just wish the inestimable Cindy Culp were around to tag-team with him.) Witherspoon reported in Friday's paper:

A hearing Thursday for a disabled Gatesville Army veteran who rides with the Cossacks Motorcycle Club included a strong challenge to the probable cause used to arrest 177 bikers in the wake of the May 17 Twin Peaks shootout.

Ronald Atterbury’s attorney, John H. Jackson, who also is a former state district judge from Corsicana, attacked the probable cause reported in Atterbury’s arrest warrant affidavit, which is identical to the others used to detain bikers en masse after the melee that left nine dead and 20 injured.

Officials used identical documents, labeled “cookie-cutter” by defense attorneys, changing only the names, to apply the same conduct to all those jailed.

Jackson was not successful in getting the charges dismissed, but convinced 54th State District Judge Matt Johnson to reduce Atterbury’s bond from $1 million to $40,000.

Jackson called Waco police Detective Manuel Chavez as a witness to describe how the affidavits were drafted. To obtain the arrest warrants, Chavez swore before a judge as to their content. He testified Thursday that the document was written by prosecutors in the McLennan County District Attorney’s Office on the day of the shootout.

Chavez admitted he didn’t know if Atterbury, 45, committed any of the offenses alleged in the affidavit and acknowledged that the affidavit does not accuse Atterbury specifically of any wrongdoing besides being a member of the Cossacks.

“Is membership in one of those organizations a crime?” Jackson asked. Chavez answered, “No.”

“You did not furnish any information to Judge (Pete) Peterson that my client committed any crime, did you?” Jackson asked.

Chavez said, “No, sir.”

Peterson, a justice of the peace, issued the arrest warrants and set $1 million bonds for each biker.

So, the cop who wrote the arrest warrant affidavit says he did not furnish any information to the Justice of the Peace charged with making the probable cause determination which indicated the defendant "committed any crime." Yet, District Judge Matt Johnson "ruled that probable cause was sufficient to support Atterbury’s arrest."

Talk about a rigged game!

Roundup: Jail foibles, judicial elections, border security and bitemarks

Here are several items that merit readers' attention while your correspondent is focused elsewhere.

• Entrepreneurial jail building has left Waco with an empty jail downtown and no revenue stream to pay for the bonds issued to build an unnecessary extra facility. Faulty projections of increased immigration detention have left McLennan County and others seeking to rent out extra beds in the lurch. See prior Grits coverage.
• This month saw a rough start for video visitation at the Denton County Jail.
• I can't imagine Rep. Jason Villaba's bill disallowing straight ticket voting for judicial, DA and sheriff's elections will gain much traction, but it would be a step in the right direction. Personally I'd prefer such elections were entirely non-partisan, but eliminating straight ticket voting would at least cause voters to make a specific choice. For the most part there's scarce little vetting of any of these candidates in local races and little viable means for voters to evaluate them.
• The Austin Statesman has an editorial supporting legislation by state Sen. Rodney Ellis expanded access to post-conviction DNA testing.
• The editorial page editor for the Corpus Christi Caller Times argued Sunday that DPS should let local police patrol the Rio Grande Valley. Meanwhile, the Texas Border Coalition, representing cities and counties from El Paso to South Padre Island, is making the case that border security should be left to the feds. The Beaumont Enterprise argued that the National Guard deployment along the border is unjustified.
• In the context of proposals to further downsize the Texas Juvenile Justice Department, I was interested to read "How communities are keeping kids out of crime" from the Christian Science Monitor.
• Here are five states where Republicans are getting serious about criminal justice reform.
• Radley Balko has a good piece on how flawed bite mark analysis has sent innocent people to prison. See also this academic paper on the topic and prior Grits coverage.

I Can't Breathe, South Texas style, and other stories

Here's a browser clearing compendium of items  that merit Grits readers' attention even though I haven't had time to adumbrate them fully.

Wrong solution to culturally inept 'surge' participants
Is it true, as Valley legislators allege, that "Too many of the Department of Public Safety troopers assigned to the South Texas border region do not understand the local Hispanic culture and are unable to speak Spanish"? Perhaps. I'll even go with, "Probably." To me, though, the solution is to scale back the politicized, pointless, metric-free, "surge," not to build a damn training center down there to make it permanent! 

Lawsuit alleges sexual assault by employee of county jail contractor
A lawsuit by a former inmate alleges she was sexually assaulted by an employee of Community Education Centers, a private prison firm out of New Jersey that operates McLennan County's local jail, reported the Waco Tribune Herald. Jail privatization has already been a financial albatross for the county, but, if true, these allegations and the process of proving them in court might turn public opinion against the county's jail contracts more viscerally. 

I Can't Breathe, South Texas style
Eighteen students and staff members at a Raymondville ISD middle school were given medical treatment after they were exposed to tear gas during a training exercise at the neighboring Willacy County State Jail, reported KWTX TV.

New Tarrant DA will create Conviction Integrity Unit
The new Tarrant County DA Sharen Wilson will create a Conviction Integrity Unit. The fellow hired to run it, Larry Moore, said correctly that the lower number of exonerations in Tarrant may be because they “didn’t have the pattern of abuse you found in Dallas," as local officials have insisted. "But frankly, all the evidence was destroyed here, and Dallas kept it,” he added, which regular Grits readers know more accurately gets to the heart of the matter.

Priced to go
Outgoing Texas Court of Criminal Appeals Judge Tom Price spoke to the Austin Statesman's Chuck Lindell about his last-minute declaration that he opposes the death penalty after sending hundreds of men and women to death. (Price's views have migrated greatly from those of the judge who was warned by the State Commission on Judicial Conduct in 2001 for a campaign message touting that he had "no sympathy" for the criminal.) Regrettably, Lindell's conversation with the judge did not stray from Price's new-found death penalty views to plumb other topics like ideological splits on the court, relationships among judges following the Charles Dean Hood debacle, or his reasons for switching sides in Ex Parte Robbins I and II. I understand Texas Monthly will publish an interview with outgoing CCA Judge Cathy Cochran early next year, though don't expect her to break decorum and speak about the insider baseball stuff.

Reddy: Pretrial detention of low-risk offenders 'counterproductive for public safety'
Vikrant Reddy of the Texas Public Policy Foundation authored an editorial in the Houston Chronicle explaining how "pretrial incarceration of those who do not pose a high risk of committing a serious crime is counterproductive for public safety." He argues for "developing pretrial risk assessment instruments that can be used to make sound determinations about who needs to be in jail and who does not."

Read more here: http://www.star-telegram.com/opinion/opn-columns-blogs/bud-kennedy/article4119384.html#storylink=cpy

Mass imprisonment and public health
I'd missed a NY Times editorial from last month regarding harms to public health from mass incarceration. Here's a notable excerpt from its opening:

When public health authorities talk about an epidemic, they are referring to a disease that can spread rapidly throughout a population, like the flu or tuberculosis.

But researchers are increasingly finding the term useful in understanding another destructive, and distinctly American, phenomenon — mass incarceration. This four-decade binge poses one of the greatest public health challenges of modern times, concludes a new report released last week by the Vera Institute of Justice.

For many obvious reasons, people in prison are among the unhealthiest members of society. Most come from impoverished communities where chronic and infectious diseases, drug abuse and other physical and mental stressors are present at much higher rates than in the general population. Health care in those communities also tends to be poor or nonexistent.

The experience of being locked up — which often involves dangerous overcrowding and inconsistent or inadequate health care — exacerbates these problems, or creates new ones. Worse, the criminal justice system has to absorb more of the mentally ill and the addicted. The collapse of institutional psychiatric care and the surge of punitive drug laws have sent millions of people to prison, where they rarely if ever get the care they need. Severe mental illness is two to four times as common in prison as on the outside, while more than two-thirds of inmates have a substance abuse problem, compared with about 9 percent of the general public.

Common prison-management tactics can also turn even relatively healthy inmates against themselves. Studies have found that people held in solitary confinement are up to seven times more likely than other inmates to harm themselves or attempt suicide.

The report also highlights the “contagious” health effects of incarceration on the already unstable communities most of the 700,000 inmates released each year will return to. When swaths of young, mostly minority men are put behind bars, families are ripped apart, children grow up fatherless, and poverty and homelessness increase. Today 2.7 million children have a parent in prison, which increases their own risk of incarceration down the road.

If this epidemic is going to be stopped, the report finds, public health and criminal justice systems must communicate effectively with one another.

Staffing the zoo: Prosecutors bail on McLennan DA

Prosecutors and staff at the McLennan County District Attorney's Office are jumping ship, reported the Waco Tribune Herald, with three prosecutors leaving in the last week - including DA Abel Reyna's first assistant, Greg Davis - and eight employees total departing since the new year. Nobody's saying why they bailed but it's not hard to guess. (Budget cuts, rising workloads, unreasonable plea policies, maybe?) If you don't like sweeping shit, don't work at the zoo.

Readers with any direct or even second-hand knowledge of the situation, please regale us in the comments.

County Catch 22: Pay for lawyers or pay for incarceration

For a county paying through the nose to house jail inmates they can't afford, this seems like an odd and counter-productive choice; from the Waco Tribune-Herald (Dec. 14):

An ongoing McLennan County Sheriff’s Office investigation into indigent defense fraud resulted in an arrest Friday.

James Tyrone Johnson, 40, was arrested just after 1 p.m. on charges of falsifying or tampering with a government document, Chief Sheriff’s Deputy Matt Cawthon said.

The McLennan County Commissioner’s Court this year approved the creation of a new position to investigate false claims of indigence, because the county must provide an attorney for any defendant who cannot afford a lawyer.

Cawthon said this is just the first arrest and he expects the investigation, which has been led by Detective Eric Carrizales since early November, to uncover how much money the county is losing on false indigence claims.

I've not heard of other counties employing someone full-time to verify indigence applications - much less prosecuting people over false claims of indigence - but given that the McLennan County Commissioners Court has been chomping at the bit to reduce jail costs from pretrial detention, it's hard to see how this makes financial sense. They may save money on attorneys for the indigent but if those folks wait in jail longer while their relatives scrape together money for lawyers, or don't, it's going to cost a lot more than it saves: Almost the definition of penny wise and pound foolish. Grits would bet that county commissioners end up scratching the new position once it begins to rack up extra jail costs.

McLennan Sheriff ignores data, research on ill-conceived DARE program

In McLennan County, where District Attorney Abel Reyna's hard-nosed approach to plea bargaining has resulted in a dramatic uptick in the number of cases taken to trial, the Sheriff and county commissioners are struggling with how to provide sufficient courthouse security for all the extra court proceedings. The Waco Tribune-Herald reports ("Commissioners struggle to fund courthouse security for uptick in trials," Nov. 29) that the commissioners court is considering eliminating the DARE program and reassigning the deputies to courthouse security. Grits thinks eliminating DARE is a good idea no matter what the deputies do instead. As the paper noted at the article's conclusion:

national statistics do not support the idea that the DARE program is successful.

The Alcohol Abuse Prevention website states that the U.S. Department of Education doesn’t allow school money to be used toward DARE because it has proved to be ineffective in convincing children not to choose drugs.

“Scientific evaluation studies consistently have shown that DARE is ineffective in reducing the use of alcohol and drugs and is sometimes even counterproductive — worse than doing nothing,” the website states.

Sheriff Parnell McNamara said he is sensitive to the security and budget issues the court faces, but added he disagrees with national data and is against the elimination of the drug awareness classes.

McNamara said his task forces are working hard to eliminate drug activity in the county and that he fully supports anything that would give the department an advantage.

McNamara said 90 percent of the people he arrests are associated with illegal drugs in some way. He said the standard excuse for any criminal activity is being mentally unsound on an illegal substance.

“As serious as the drug situation is in McLennan County, I wish the court would look long and hard before doing away with the DARE program,” he said.

Leave it to McLennan County law enforcement to insist on a program that data shows is not just "ineffective" but "counterproductive." DARE is not a law enforcement initiative, it's a propaganda campaign. And prioritizing it at the expense of courthouse security is just dumb as dirt.