Biker attorney challenges ‘cookie-cutter’ arrest warrants [Waco]

Waco Tribune ^ | July 2, 2015 | TOMMY WITHERSPOON

[don-o]

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.

Under cross-examination from prosecutor Brandon Luce, Chavez said he spoke with other officers and witnesses who were present during the shootout.

“He committed the offense of engaging in organized criminal activity by associating with a criminal street gang and showing up with other members of an organized street gang where a melee ensued, involving another organized street gang. Is that right?” Luce asked.

“That is correct,” the detective replied.

Jackson again questioned Chavez.

“You did not set out specific allegations in those affidavits for any of these 177 people that would lead a judge to believe that any of them committed any offense at all, did you?” Jackson asked. “Does it bother you that a lot of people were locked up because of your affidavit that doesn’t allege any criminal act by any of these 177 people?”

His question drew an objection from Luce, and Jackson withdrew it.

Johnson ruled that probable cause was sufficient to support Atterbury’s arrest.

The judge lowered his bond to $40,000, but placed Atterbury under the same restrictions, including wearing a GPS ankle monitor, that most of the other bikers have.

Jackson said Atterbury’s family should be able to come up with the $4,000 — or 10 percent of the total bond — to get him released in a couple of days.

Prosecutors have filed a petition to seize and forfeit Atterbury’s 2003 Harley-Davidson motorcycle to the county.

Family members testified Atterbury has no prior criminal record and is needed at home to help support his wife, Diana, who suffered a debilitating leg injury in a motorcycle accident and came to court in a wheelchair.

She testified that her husband is 100 percent disabled after his Army service in the Gulf War.

[Sherman Logan]

My comment was not with regard to this particular case. It was a general comment on the difficulty of prosecuting individual members of a large crowd.

FWIW, I’m not comfortable with the procedures in this case. I do, however, recognize that the alternative might very well have been to not file charges at all. Which would mean any group with enough people in it could commit crimes with impunity.

I assume there are extensive video files. I don’t see why it should take more than a few days to review it and determine which participants should be charged with which crimes.

[mac_truck]

Johnson ruled that probable cause was sufficient to support Atterbury’s arrest.

Key takeaway for all the biker subculture acolytes and their legal advisers.

[don-o]

Thank you again for joining the discussion. Your contribution resonates with some actual knowledge, which has been rare in these threads.

[sport]

It does not take anything away. Probable cause is always been the basis of an arrest, the same applies with a traffic stop. And what is probable cause”? It is more than mere suspicion, but less than certainty.

[Cboldt]

Thank you for the kind words.

You'd mentioned that the statute requires commission of some underlying crime, and the summary link you provided bears that out. But the connection between "conspiracy" and "crime" isn't direct.

A fictitious example: A person joins a criminal gang, the gang has (before this person joined) committed one or more crimes. THIS is the "commit a crime" "element." It is different from an individual defendant committing a crime (other than conspiracy), but it is a commission of a crime. The defendant then conspires with other members of the criminal group, to commit a crime for the GROUP's benefit. This is conspiracy, and if the prosecutor can produce evidence of this intent to commit a future crime, defendant is guilty, even if defendant commits no crime other than participation in the GROUP conspiracy.

Not sure if that clears things up any, but it's my shorthand image.

Applauding the judge in this case is like applauding the judge that allowed Florida to hold Zimmerman on a murder charge, with zero evidence of intent. The judge was obviously wrong, but he's the judge. As I said, erroneous decisions are common, even "the norm." Some judges make this sort of heavy-handed mistake on purpose, because they know it is expensive and time consuming to appeal, and there is zero downside to the judge. Many people celebrate judicial law-breaking, because somebody else's ox is being gored. Human nature at work.

[mac_truck]

It does not take anything away.

Lol...whut?

[sport]

unless the LEOS would be incriminated, and that's why those results aren't being disclosed.

well, yes, that is what I have been saying[posting]. Same with the videos. My guess is that they are being doctored to clear the police. And, evidently, it is more difficult than they initially thought it would be. In fact, they may have had to send them to Hollywood with instructions as to how they wanted them to turn out. So, unless they clear the police, do not look for an autopsy report or a video to appear [be released by the police]. The ramifications of these actions reach far and wide. osy

[Cboldt]

In practice, probable cause is whatever the judge accepts as sufficient supporting evidence. In this case, the judge accepts ZILCH, absence of evidence, as sufficient.

It's generally not practical to litigate this type of judicial error, because the legal/trial process moves faster than the appeal process. Judges are heavily biased against defendant at this stage of the process, and openly deviate from the law. Police, prosecutors and trial judges are a team, with close to zero probability of being penalized for violation of due process, as long as the violations aren't egregious, "shock the conscience" level.

[don-o]

For what it's worth, judges almost always uphold unsupported allegations. "The law in principle" bears only resemblance in form, to the way substantive law is practiced by the government capos and goons. Thousands of cases and decisions bear this out in black and white.

So..."Pounding the table" does work? For those who may not get the allusion...

When the law is on your side, argue the law.

When the facts are on your side, argue the facts.

When neither are on your side, pound the table.

[sport]

You are correct. The actual proof or lack of same comes at trial. It is at the trial the State must prove their allegations. According to the Constitution, the defendant is not required to prove or disprove anything.

[wastoute]

And you are not at least curious about how they responded in advance? Clairvoyance?

[Cboldt]

My point was that the government has a burden well before trial, that being to recite allegations that it intends to prove at trial. If the allegations don't make a crime, then the judge is supposed to release the accused.

In this case, the allegation is deficient, obviously so. The only contentions made are that there is an organized criminal conspiracy statute (yes there is), and this guy probably violated it. That's not enough. The police and prosecutor have to make specific allegations as to each element of the offense, associated with the accused.

Another point I made is that even though the law requires a judge to perceive the connection between the elements in the allegation and the elements of the offense, in practice they don't.

This DA and judge are worse than Nifong, in that Nifong at least had an allegation - albeit he knew, at some point, it was a false allegation, but at least he had an allegation. The allegation in this case is naked - there isn't even a lying witness or victim.

[wastoute]

So he was guilty of doing the same thing Waco PD did?

[Cboldt]

There isn’t even a need to pound the table. Judges like to exercise power, and are in a cozy relationship with the prosecution.

[Cboldt]

-- The actual proof or lack of same comes at trial. --

One other point, and this is pretty common actually. Sometimes lack of evidence (which is not the same as deficiency of allegation) results in a case being dismissed well ahead of trial.

Not so common, but not unheard of, are cases where the accused is released for deficiency in allegation. If the trial court drags its feet long enough, it becomes quicker to appeal this type of due process violation before it is exposed in the pretrial process.

[JJ_Folderol]

>>> They are supposed to only fire at persons that can be absolutely identified as criminal aggressors. <<<

That’s been an issue I’ve had for a while now. I figure that the SWATs panicked and shot everyone holding a gun regardless of whether it was an aggressor or engaged in self-defence.

Of course the Waco police could have prevented the deaths if those SWATs had been visible instead of hiding in their truck.

[don-o]

Of course the Waco police could have prevented the deaths if those SWATs had been visible instead of hiding in their truck.

Yes. Yes. Yes. A thousand times YES!

This was the stinkbomb that Chief Brent Stroman inadvertently(?) set of in his now scrubbed from facebook briefing.

Stroman statement that has been scrubbed from Waco PD facebook

[TexasGator]

“Everything I hear about this case suggests that the way the establishment is handling it is disgraceful.”

Bikers on the scene commend the police for their actions.

Peter Graves, Bandidos officer and TCOC president at the Waco shooting, says they respect the police for doing their job.
https://www.youtube.com/watch?v=q_sCRg69TQE

(Big John Snyder, Vice president of the Boozefighters at the Waco shooting) “The police were professional, considering the situation they were in. They were professional and doing their job,” he said.
http://www.latimes.com/nation/nationnow/la-na-nn-waco-biker-20150519-story.html

We have also heard from a biker family member that the police probably saved lives at Waco.

[USNBandit]

Please provide the evidence the police didn’t do that. The autopsies were all farmed out to a third party, the ballistics to a fourth party. Until all that comes out the only information we have is 3 police firing 12 rounds and 34 other expended rounds found on the ground.

[USNBandit]

When the local chapter of Bandidos would have a ride in my local area the local PD would show up in force. Keeps the prospects from harassing senior citizens over parking places.