President's Message: Twin Peaks Justice - By Samuel E. Bassett

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Wednesday, September 16th, 2015

Waco—home of the Baylor Bears, the Texas Ranger Museum, the Dr. Pepper Museum, and venue to one of the most controversial events in the criminal justice history of Texas. Is another case unfolding that will rival the Branch Davidian debacle?

In 1993, the Branch Davidian standoff captured the nation’s attention as a botched attempt at a federal law enforcement raid resulted in a standoff that lasted weeks. In the end, 76 people died as federal agents moved on the compound. To this day, there are disagreements as to the wisdom of the move and who was at fault for the fire that killed dozens. Ultimately, there was a trial with surviving members of the Branch Davidian sect in Federal Court. Many of our leaders were part of that trial team—Gerry Morris, Tim Evans, Jeff Kearney, Doug Tinker, Joe Turner, Robert Hirschhorn, to name a few. Dick DeGuerin entered the compound before the fire to meet with his client, David Koresh. Koresh died during the raid that ended the stand­off. It was a test of our criminal justice system—albeit in Federal Court. I recall Doug Tinker’s words after the trial: “I love my country but in this case I hate my government.”

Fast forward to May 17, 2015, when almost 180 individuals are arrested following a confrontation between rival biker gangs and law enforcement in the parking lot of a Twin Peaks Restaurant in Waco. Nine people lay dead and several others wounded. Capital Murder charges are filed. Unlike the Branch Davidian fiasco, this case falls under the jurisdiction of State District Courts in McLennan County. It was striking how quickly and aggressively law enforcement leaders stepped in front of cameras to report their version of events. Soon thereafter, a Justice of the Peace set identical bonds of $1,000,000 each for all those charged.

We now know the District Attorney’s office assisted law enforcement in drafting the probable cause affidavits in “cut and paste” style as to each defendant. The pace of reviewing and revising the bonds for the individual defendants was inexcusably slow. No one in McLennan County seemed to want any outside assistance. Ultimately, the District Attorney’s Office lowered almost all of the bonds. Attorneys involved quickly filed writs, motions to recuse, and civil suits. In the past two weeks, a new grand jury was seated with Waco Police Detective James Head selected as foreman. This same detective had some role in the investigation of the cases. Will this same grand jury consider this case? If so, can it be more apparent that McLennan County is simply not equipped to handle these cases in a manner that meets some modicum of fairness and due process?

As I write this column, I realize we are just seeing the first chapters of what will be several revelations about the facts of the case and the process to be implemented in the prosecutions. Examining trials have been requested, and there is movement toward a Visiting Judge to preside over examining trials. Many of our members, including Clint Broden, are on the front lines against what appears to be an insular and parochial criminal justice establishment. What is TCDLA doing? In May, in the days following the arrests and setting of bonds, President Emmett Harris penned an open letter regarding the case to the media. As events unfolded, TCDLA held a round table forum for attorneys involved in the Waco cases at the Rusty Duncan course in San Antonio. Following those events and following the grand jury issue noted above, I wrote a letter regarding the selection of Detective Head as foreman. In mid-July, a Waco Biker Case Task Force was formed with Board members Jim Darnell (El Paso), Carmen Roe (Houston), and Susan Kelly (Waco). The task force’s purpose is to respond as quickly as possible to appropriate requests for assistance from those involved. TCDLA will release another open letter communication, urging that an independent grand jury consider the indictments in this case.

This case is important to TCDLA and to all Texans. We cannot permit rubber-stamp justice and short-circuiting of Due Process. I am proud of members involved in representation, and I am proud to be involved in an organization that continues the fight against a system in disrepair. I have no doubt that many inno­cent citizens were arrested on May 17, 2015. I believe that many were overcharged. I also believe that a minority of those involved are likely guilty of some wrongdoing. Some important questions remain to be answered—such as how many law enforcement officers acted improperly in firing their weapons on May 17, 2015, and were those actions justified? As this unravels, TCDLA will continue to fight for the rights of all Texans, especially those accused of crime.