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Published on November 11th, 2015 | by David "Double D" Devereaux

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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.

COLES v. CARLINI, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, Civil No. 10-6132 OPINION, 9/30/2015, p.28:

“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.

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About the Author

David

is the Spokesperson for the Washington State Council of Clubs, Founder of the Motorcycle Profiling Project, and works with motorcyclists at the national level. Contact: Send Email,



DISCLAIMER: Although comments are encouraged and appreciated, not all comments will be posted by Motorcycle Profiling Project LLC. The Motorcycle Profiling Project LLC appreciates oppositional viewpoints but will not post any comments that do not contribute to a respectful and meaningful discussion or are blatantly discriminatory or otherwise offensive. Resubmissions will be considered at the commenter's request.


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

  1. Avatar Must b Anonymous says:

    As True as what you write is, those who say “this will bankrupt Waco…” Should also realize that Waco has deeper pockets than any of those indicted. The goal is to get all indicted (and there will be more) to plea to lesser charges, because, what they have been charged with carries a LIFE SENTENCE!! Unless one has the financial backing to “fight to the end” , unfortunately our legal system offers them but one way out. Take a lesser charge, and try to get on with ones life. I am hopeful the community will be called together to back those persecuted in this matter with what they will require to see this through: CASH

  2. Avatar Troy says:

    Speaking about the comment by Anonymous, and the Waco Due Process of the legal system, I just want to say that this is a blatantly clear abuse of the legal system by the legal system, and is pure corruption true blue in our faces.
    Our legal system was not founded to extort money from innocent citizens with false charges until they are pressured into accepting a plea bargain under durres. The Geneva Convention has even covered this by making even in a time of war no person shall exert any abusive actions or pressure to any prisoner in the attempts to force a person to give, or admit to crimes and or information for the administers beneficial uses.
    Picture this if you will. Say I want to take your money and keep it as my own. I ask you for it and you deny my request. So I then grab your arm and say “give me your money” and you reply with no. The next action I take is I twist your arm more and more telling you to give me your money until your arm is about to break and you finally give in and hand me your money. End result is I got your money. Do you think that this was a fair deal? I should hope not and the law agrees that it is not a fair deal That is exactly to the T what the Waco, TX prosecution is doing in this indictment and trial. It is illegal and corrupt to the bone. In the older and real America the citizens would burn down the court house with all of the judicial members involved inside of it. Sadly we live in a much more sissyfied and sadistic time now, then we did in the humanitarian past.Now people are so frightened to stand against the government because of how murderous the government has become and gaining power every time they kill another American that no one wants to try to correct the government and all of the adjoining agencies for fear of death and loss of material belongings that they choose willful ignorance as their cloak. These are not true actions of a patriot by no means. But until most of the citizens of this country get affected in one way or another by the corruption of government both local and federal, we will not see any corrections made, and hope that we can win the sure to come Civil War #2. What is worse is that our governor of Texas has not stepped up to defend the civil rights of every single person that was there and made victims, even though that is supposed to be his first and most important role as the governor, to protect our civil rights.
    Corruption is rabid in this entire government and bites everyone whom cannot defend themselves
    Thank you for reading and stay vigilant folks.
    Sincerely,
    The American American, Fighting to Restore Our Free Nation.

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