Understanding The Waco Grand Jury Indictments- Does The 1st Amendment Exist in Texas?

 Understanding The Waco Grand Jury Indictments- Does The 1st Amendment Exist in Texas?

The Waco Grand Jury indictments on 106 individuals for engaging in organized crime are not convictions. The Grand Jury only determines whether the prosecutor has sufficient evidence to indict. The Grand Jury only hears from the prosecutor, no defense attorneys are allowed, and does not make a determination on guilt. As examining trials made clear, the basis of the prosecutor’s argument in many of these case relies solely on an individual’s association with a motorcycle club that that had members accused of committing a crime on May 17th.

These indictments based solely on association, particularly the cases where the prosecutor admits that there is no evidence that the individual participated in any crime or violence, flies in the face of recent Federal Court precedent.  Those associated with motorcycle clubs are protected against government impositions based solely on membership in an organization that the government has labeled a gang or criminal organization.

Although the Grand Jury is not open to the public, or even to defense attorneys, past examining trials challenging the probable cause of the initial arrests reveal that mere association with a club labeled a criminal organization has been the basis of the prosecution’s theory for many of the accused. It is very reasonable to assume that many of the 106 indictments handed down by the Waco Grand Jury are based on nothing more than association.

The ability to challenge the prosecution’s theory should become more balanced during an actual criminal trial because the standard of proof is much higher. Although I agree with many that are concerned about the seemingly broken Waco criminal justice system, recent Federal decisions seem to say that the underlying assumptions of an indictment based solely on association are unconstitutional.

A US District Court this past September, relying on Supreme Court precedent, concluded that the government may not impose restrictions on an individual solely because of their membership in a motorcycle club, including a 1% club, that the government labels as a gang or criminal organization. The criminal activity of others does not justify denying rights and privileges solely because of association with an unpopular organization.


“Defendants have pointed to no evidence that by merely wearing Pagan’s “colors,” Plaintiff was involved in or associated with the alleged violent or criminal activity of other Pagan’s members. It is a fundamental principle that the government may not impose restrictions on an individual “merely because an individual belong[s] to a group, some members of which committed acts of violence.” In fact, the Supreme Court has long “disapproved governmental action . . . denying rights and privileges solely because of a citizen’s association with an unpopular organization.”  – Healy v. James, 408 U.S. 169, 185-86 (1972).


The decision by the Waco Grand Jury comes as no surprise to many considering the obviously over-broad arrests, excessive bail, and unsuccessful challenges to probable cause during examining trials. And it will not be a surprise if the Grand Jury hands down indictments on the remaining individuals whose cases have not been presented for indictment.

It seems obvious to most that an overly-broad indictment affords the prosecution the ability to offer plea agreements to individuals that committed no actual crime. This achieves two goals of the prosecution. First, plea deals shield future lawsuits over due process and issues like probable cause. Second, mass indictments increase the probability that pressure will result in individuals providing witness testimony to help convict others.

For example, Alex Hernandez who writes the mcatty.com blog states:

“From here, as I have mentioned many times before, the game of law begins. With the indictments returned for engaging in organized crime with underlying offenses of murder and assault, this is no different than buying a car. Start high and work your way down. Think about it: you are facing organized crime charges, your attorney is asking you for money you do not have, and there is a good chance you will spend the rest of your life in prison if you lose at trial. As plea negotiations take place and 90% of cases are worked out with a plea, the State Attorney’s Office makes you an offer for a lesser offense. Maybe credit for time served or extended probation. What do you do? Chances are you take the plea and try somehow, to move on with your life. Of course, once you take the plea, there goes the civil rights violation lawsuit and the city of Waco lives to see another day.”


As much of the motorcycling community across America watches events in Waco unfold, we can only hope that the criminal justice system in Waco begins to recognize the existence of the 1st Amendment to the US Constitution and that innocent individuals are able to persevere and preserve their ability to seek civil lawsuits for the obviously unconstitutional actions of law enforcement in Waco.

Double D is the Spokesperson for the Washington State Council of Clubs, Founder of the Motorcycle Profiling Project, and works with motorcyclists at the national level.

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