Posted on 07/06/2015 11:08:21 AM PDT by don-o
Attorneys for Don Carlos Mexican Restaurant in Waco are seeking to block a subpoena that would require restaurant officials to turn over security camera videos from the May 17 shootout in advance of a biker’s examining trial.
Attorney Clint Broden, who represents Hewitt biker Matthew Clendennen, subpoenaed the video from Don Carlos, whose business is adjacent to the former Twin Peaks restaurant, where nine bikers were killed and 20 others were wounded.
Bret Griffin, a Houston attorney who represents Don Carlos, said in a motion to quash the subpoena that Broden is on a “fishing expedition for non-party’s surveillance footage and is threatening the non-party with orders of contempt and arrest. Such conduct is improper and must be stopped.”
Justice of the Peace W.H. “Pete” Peterson has scheduled an examining trial in Clendennen’s case for Aug. 10. Those seeking examining trials hope to prove there is insufficient evidence to indict them.
Peterson has not set other hearings in the case, including one to consider the motion to quash the subpoena.
Griffin alleges in the motion to quash that the subpoena will unduly burden Don Carlos’ officials, whom he said would have to review hundreds of hours of surveillance footage from 16 different positions in order to comply.
Also, he alleges, the manager of the Waco Don Carlos is no longer in possession of the hard drives containing the surveillance because Waco police officials took them as part of their ongoing investigation.
The motion suggests Broden ask prosecutors to turn over the video.
“Finally, this surveillance footage is evidence in an ongoing criminal investigation and in an unrelated civil proceeding to which a gag order has been placed,” the motion to quash says. “To require a non-party to disseminate this information would be unfair and prejudicial and potentially be in conflict with the gag order.”
If the subpoena is not quashed, Don Carlos officials ask the video to be placed under a protective order, barring its public release.
In a response to the motion to quash, Broden called Don Carlos’ arguments “gobbledygook.”
He notes that 54th State District Judge Matt Johnson last week ordered Twin Peaks to comply with an almost identical subpoena on a Twin Peaks franchisee. The judge placed the video under a protective order, preventing Broden from releasing it publicly.
“Twin Peaks has offered transparency to the citizens of McLennan County while, at the same time, recognizing the importance of due process rights of those charged with criminal offenses by agreeing to produce its surveillance videos pursuant to a subpoena,” Broden’s response says.
“On the other hand, Don Carlos seeks to keep McLennan County citizens in the dark and to deny citizens an opportunity to fully prepare their defense. Thus, it should hardly surprise Don Carlos that McLennan County citizens might choose not to patronize a restaurant that acts with such disdain toward public transparency and basic constitutional rights.”
Don Carlos is suing Twin Peaks in Dallas for loss of business as a result of the May 17 shootout.
Last week’s reporting from Waco, there are eight still in jail.
“People with mindsets like Rita OKs are how America will die.”
That seems to be a pretty heavy charge to place on another FReeper for having the mere audacity to post an opinion.
An opinion that says Civil Servants have the right to severely and permanently punish without due process law-abiding peaceful citizens at the point of a gun and with the backing of the courts, is the opinion of a would-be killer of American freedom, whether they are aware of it or not.
Sure, you, Rita, and others waffle and obfuscate and say, "No, we're saying wait for the courts to sort it out!"
Opinion has to do with the rightness or wrongness of it. FACT has to do with the reality, and the FACT, the REALITY is, that the courts are way, way too late to sort it out. It's like saying it makes sense to take the patient to the hospital for treatment a week after the patient died.
Not the same thing as accusing people of “that is how America will die.”
“Turf dispute”
So you think this is about golf?
Lawn services?
A description so vague as to be meaningless.
Well, to people who aren’t being intentionally obtuse, the meaning of the phrase “turf” in relation to gang activity is apparent.
“Dude! What you are saying there is roughly an admission that some of the accused are being held without evidence to support the charge!”
No, I am not privy to all the evidence that the authorities have, I am just speculating on what else they might need to prove their case in court. For all I (or you) know, they may already have that. It certainly would not be unusual for the police or feds to have undercover agents or confidential informants already in place in these organizations to give them that kind of information.
“And if it comes out later, the timing of this new evidence, those held in the interim have a solid deprivation of rights claim.”
How so? Evidence must be disclosed in discovery. There is no deprivation of rights as long as that is done, and we certainly aren’t past that deadline yet.
“Not that “our” government is above this, but the fairy tale the government pedals to the rubes is that you can;t be held without evidence that constitutes evidence of committing a crime.”
Well, there are different standards of evidence that come into play. To arrest someone, you only need a “reasonable suspicion” that they were involved in a crime. To indict them, you need a higher standard than that, and to convict, an even higher standard. So you can certainly be held in custody for a crime if the government does not necessarily have enough evidence to convict you.
“The other point is that you’ve only attempted to justify holding the Cossacks.”
I think you mean Bandidos, and yes, I think the government’s case is strongest against them (and their support clubs), from the evidence and testimony we’ve seen so far, simply because they organized the event. So, naturally, it is going to be easier to make the case that the Bandidos planned for this to happen, since they made the arrangements that set things in motion.
However, the Cossacks and their support clubs did take some actions that don’t look good either and could be used as evidence for conspiracy on their part too. I just don’t think that is going to be as easy for the government to demonstrate that to a jury’s satisfaction.
“the REALITY is, that the courts are way, way too late to sort it out”
You keep saying stuff like this, but please, tell us, what is the correct course of action? Shall we appoint ourselves judges and juries, and when we read some things on the internet that make us think the innocent have been arrested, go and storm the jailhouses to free them?
What exactly is your recommended course of action? Besides making indignant posts on an internet message board?
One could make the case that this is a direct economic assault by a corrupt gruberment on the people being held.
They're being deprived of a way to make a living, AND forced to spend money defending themselves from prosecutors with a blank checkbook.
This, in a time when most of the gruberment ADMITS ($15 minimum wage, anyone?) that their economic policies are putting the cost of day-to-day living beyond the lower rungs of the American economic ladder.
Pointing out the obvious, no income, and shoveling money into the maw of the ravenous Crimnel Jesters system puts one BELOW the bottom rung.
What's being done is malicious - similar to the malicious things done by officials and courts in the American colonies before the Revolutionary War.
Well said. BUMP
My remark followed the contents of your previous comment, which was in the nature of the authorities needing new information.
All they really need now is a witness to flip and connect the dots by saying that was done specifically to prepare for violence against the Cossacks.THAT statement amounts to an admission the arrest is unsupported. OTOH, if they don't need anybody to flip, well then, they are obliged to make an accusation based on evidence they already have.
Supporting an arrest requires a particular accusation, with some quantum of evidence to support each element of the crime. The accusation the government put on the table is gang conspiracy. Crimes attach to individuals, so the accusation has to be in the nature of "this accused conspired to commit assault." The point I made early on was that wearing the colors and being at the scene of the shooting is not evidence that [insert name of an individual here] engaged in conspiracy.
-- Evidence must be disclosed in discovery. There is no deprivation of rights as long as that is done, and we certainly aren't past that deadline yet. --
It's a simple truism that if the government has evidence a person conspired, arresting them for conspiracy is supported. But if the government does not have evidence of conspiracy at the time of arrest, the arrest is illegal.
A deprivation occurs when there is an arrest without probable cause. If the affidavit is deficient (and this is a question of law), the accused/detained has been denied due process. The government can hide its error for awhile, from those people who lack the training and experience to be able to distinguish a sufficient affidavit from an insufficient one.
None of the affidavits accuse [insert name of individual here] of engaging in conspiracy. They invite the reader to infer some sort of amorphous gang fight conspiracy, because there is friction between the gangs. But friction and animus are not conspiracy.
Yes, I did mean Bandidos, and figured you'd figure that out, so I didn't bother to correct my mistake.
-- the Cossacks and their support clubs did take some actions that don't look good either and could be used as evidence for conspiracy on their part too. --
So far the government has not stated a coherent accusation of gang conspiracy against any individual. If you adopt a position that "club conspiracy" is enough, we're back to "why not arrest all of MS-13 for being affiliated with a criminal gang that routinely engages in violence?" A conspirator need not be at the scene of the violence to be guilty of conspiracy.
“THAT statement amounts to an admission the arrest is unsupported. OTOH, if they don’t need anybody to flip, well then, they are obliged to make an accusation based on evidence they already have.”
No, I’m sorry, you are misinterpreting my comment. Maybe I didn’t state it clearly enough, but I was speculating on what additional evidence they might need to prove the conspiracy charge. That is why I said “They’ve laid out the beginnings of that case...” at the start of my comment addressing you claim that they hadn’t made a “coherent accusation of conspiracy”.
“Supporting an arrest requires a particular accusation, with some quantum of evidence to support each element of the crime. The accusation the government put on the table is gang conspiracy. Crimes attach to individuals, so the accusation has to be in the nature of “this accused conspired to commit assault.””
They just need probable cause to justify the arrest, they don’t need to lay out the whole case against someone, or detail all the evidence that might support the eventual conviction.
“The point I made early on was that wearing the colors and being at the scene of the shooting is not evidence that [insert name of an individual here] engaged in conspiracy.”
It certainly is evidence for underlying facts that support a conspiracy case. You can’t prove a case involving a large criminal organization without first proving that such an organization exists, and then proving that the accused are affiliated with that organization. So, if criminals are stupid enough to advertise those associations publicly, it does make those aspects of a conspiracy case that much easier to prove.
“None of the affidavits accuse [insert name of individual here] of engaging in conspiracy. They invite the reader to infer some sort of amorphous gang fight conspiracy, because there is friction between the gangs. But friction and animus are not conspiracy.”
Alright, I think this is the heart of the matter, that you believe the probable cause is deficient because they don’t lay out a specific case for conspiracy against the individuals. However, if you read the affidavit, the accusation is that the individual “did commit or conspire to commit...”. So all that is needed is probable cause for one or the other, the direct involvement in a crime (even as an accomplice), or the conspiracy. The police witnessed the crimes being committed, and that is generally accepted by the courts as probable cause for arrest in and of itself.
I suppose you can argue the conspiracy charge is extraneous, but so long as they can make a case for probable cause on any of the charges, the arrest is probably going to be deemed legitimate.
“If you adopt a position that “club conspiracy” is enough, we’re back to “why not arrest all of MS-13 for being affiliated with a criminal gang that routinely engages in violence?” A conspirator need not be at the scene of the violence to be guilty of conspiracy.”
In this case, all of the accused were at the scene, which I think is an important detail that undermines the accusation that this is just “guilt by association”, or “club conspiracy”. We don’t have a case where there is some scanty connection the government is trying to establish between parties that are only connected tangentially. No, we have a case where the government has known members of criminal organizations, apprehended at the scene, after law enforcement, bystanders, and video cameras witnessed them engaging in mass violence.
So, if a bunch of MS-13 members, or any other gang engaged in a similar event, getting in a public and deadly gang fight right in front of the cops and the public, I really would prefer the police to arrest them as well.
Just show us all the facts.
What is there to hide?
That's what the police say, when they want to search your car or your house...
Facts are for the courts to determine.
Facts are for prosecutors to suppress, if they feel like it.
Skip the evidence for a moment. My statement was as to the accusation, first. The accusation, sans evidence, is deficient.
Evidence is involved too, but first things first. Make an accusation that fits the crime. Then, when the accused is before the judge who approves the deprivation of liberty, the accused can ask a series of yes or no questions, e.g., do you have ANY evidence that I [fill in the blank following the elements of the accusation]. ANY "no" answer means the evidence is deficient.
Wearing of colors and being at the scene is not even a sufficient accusation. None of them are going to credibly deny those points as a matter of evidence (disputing being there (although some of the arrested did arrive AFTER the shooting stopped), or wearing colors).
-- the accusation is that the individual "did commit or conspire to commit...". So all that is needed is probable cause for one or the other, the direct involvement in a crime (even as an accomplice), or the conspiracy. The police witnessed the crimes being committed, and that is generally accepted by the courts as probable cause for arrest in and of itself. --
I'm haven't been talking about individuals who perpetrated violence at the scene. The deficiency I have been addressing is whether or not the state 1) states and 2) has probable cause of conspiracy.
-- so long as they can make a case for probable cause on any of the charges, the arrest is probably going to be deemed legitimate. --
That depends on the timing of "making the case." It's not legal for the state to accuse somebody before it has the evidence. But, if you abandon your previously held position that it is legal to arrest a bunch of people, without evidence, and "wait for them to turn against each other" to provide the evidence the state needs, then I'll conceded the point. If the state has the evidence before they arrest, the point is a truism. Being able to make the case with evidence and having probable cause are equivalent.
-- we have a case where the government has known members of criminal organizations, apprehended at the scene, after law enforcement, bystanders, and video cameras witnessed them engaging in mass violence. --
As I said before, the people who are viewed perpetrating violence can be arrested. For them, there is probable cause of committing at least assault. Many, I think most of the accused stand accused of ONLY conspiracy. If you reflect on the posts in this dialog, you will see my reference to the paucity under the element of conspiracy. -- In this case, all of the accused were at the scene, which I think is an important detail that undermines the accusation that this is just "guilt by association", or "club conspiracy". --
The state has the burden of making the accusation, and of asserting that it is prepared to prove the accusation in court. Is it your contention that being on the scene and wearing colors establishes conspiracy?
Why no.
No it is not.
What goofy invention is your fevered mind imagining to be taking place?
There isn’t anything “apparent.”
Just to flesh that out a bit, because that statement conflates several abstract notions.
In the prosecution of any case, criminal or civil, the burden of production of evidence doesn't lie with the court. The court sits in judgment and oversees the process of the parties presentation of evidence. The court does not present evidence, or make argument.
The "determination" of a fact also involves weighing competing narratives or evidence, trying to get to the truth. Generally speaking, if there is no dispute as to the facts, and the facts / accusation / claim satisfy all the elements of the crime (or tort, in civil court), there is no trial. The point of a trial is to air and decide fact disputes - and a fact dispute involves both sides making specific contentions.
"You conspired", "I did not" is not a contest of specific contentions, any more than "You broke the law," "I did not" is.
Sorry, but this comes from the dictionary, not my imagination:
http://dictionary.reference.com/browse/turf
“4. Slang.
the neighborhood over which a street gang asserts its authority.
a familiar area, as of residence or expertise:
Denver is her turf. When you talk literature you’re getting into my turf.”
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