Prosecutors sometimes know a little less law than my ranch dog Emma.
That was how and why, a few years ago, a United States Attorney named Thomas P. O’Brien declared that “if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back.” Soon after, O’Brien left his public service job in disgrace and devoted himself to defending well-heeled, white collar liars and cheats.
That was how and why the loathsome Richard L. Durbin, Jr., United States Attorney for the Western District of Hee Haw, came to confide to the execrable Abelino Reyna – the big brain who ruins lives for McLennan County, Texas – that “he declines to share any information or evidence relating to” the part federal investigators played in orchestrating the Waco Twin Peaks bloodbath on May 17, 2015.
Operation Texas Rocker
Reyna did not release a copy of Durbin’s letter. All by itself, that indicates the extent of the Twin Peaks coverup, which is starting to make the gun walking scandal look like a two bit burglary. So we only have Reyna’s word for it that, “Mr. Durbin has indicated that the information will be disclosed to the McLennan County Criminal District Attorney’s Office once the trial” (that should read “trials,” plural, in the ever-expanding “Bandidos Outlaw Motorcycle Club” RICO case, United States v. John Portillo, et al., are, or as Reyna put it,) “is complete.”
We have Reyna’s word that “Mr. Durbin acknowledges that the federal investigation has information which relates to the events at Twin Peaks in Waco, Texas on May 17, 2015.” And, of course Reyna would never lie because he, like Detective Alonzo Harris in Training Day, is an officer of the court.
Portillo is currently stalled because Durbin has been busy denying defendants in the case representation by the attorneys of their choice and also because the prosecution in this case has recently been expanded to include two old murders that were solved in 2007, eight years before the Twin Peaks bloodbath. Durbin, according to Reyna “acknowledges” that he has evidence that “relates to the events at Twin Peaks in Waco, Texas on May 17, 2015.” But Durbin, as channeled by Reyna, thinks it is legal to withhold evidence.
This is a blatant attempt to create a federal firewall to conceal the details of a joint federal-state “investigation,” called “Operation Texas Rocker,” that was intended to provoke violent acts that might contribute to the Portillo case.
Spirit Of Brady
The issue raised by Reyna’s “disclosure” two days ago has come up before. In February 2016, defense attorney Clint Broden sought details of Texas Rocker pertinent to the Twin Peaks. Durbin had already bragged that it was a “joint investigation by the DEA, the FBI, the Texas Department of Public Safety and the U.S. Attorney’s Office.” Thirteen months ago Reyna said he knew nothing about Texas Rocker except what he read in the Waco Tribune-Herald and he repeated that boldfaced lie again this Wednesday. “It was not until it (Operation Texas Rocker) was unsealed and reported by the media that the McLennan County Criminal District Attorney’s Office became aware of the existence of the federal investigation.”
According to Reyna, he made his extraordinarily stupid declaration that there is evidence that might prove the innocence of the 192 people he has charged with criminal conspiracy “in the spirit of Brady.”
Brady is lawyer speak for a 1963 Supreme Court case titled Brady v. Maryland. The highest court declared that prosecutors must, must, must turn over (or discover) all evidence that might exonerate a defendant (exculpatory evidence) to the defense.
The Law Ripens
The Brady decision has had 54 years to ripen like cheese so simultaneously prosecutors have tested the limits of how this case law may be ignored and defenders have compelled courts to elaborate on the details of what Brady actually means. At its core, Brady means that when prosecutors withhold exculpatory evidence they violate the Due Process Clause of the Fourteenth Amendment. The Court put it like this: ““the suppression by the prosecution of evidence favorable to an accused … violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Durbin, according to Reyna, has declared his willingness to relieve himself on our stinking Fourteenth Amendment. So Reyna is left with nothing to do but throw up his hands in joy and croon a couple of choruses of “Don’t Blame Me.”
I’m under your spell
But how can I help it?
Don’t blame me.
Under the ripened and evolved Brady rule, Reyna has a “duty to learn of” and disclose to the defense all “favorable,” “material” information “known to the others acting on the government’s behalf in the case, including the police.” This group is usually called “the prosecution team” and in his discovery motion filed more than a year ago Brodin used and defined that very term – “prosecution team.”
According to public statements made by both Reyna and Durbin, the prosecution team in the Twin Peaks case includes Reyna, Durbin, the DEA, the FBI and the Texas Department of Public Safety.
Did Morgan Do It
Whatever the feds are hiding seems to be immediately discoverable to the defense attorneys in the case. Reyna has charged everyone in the case with conspiring to participate in an affray yet, curiously, Durbin has not yet accused anyone except the Bandidos with declaring “war” on the Cossacks. Which is it? Who did it? Did Morgan English do it? Would, for example, the evidence the federal government is hiding prove Morgan English innocent?
Thirteen months ago, before he started to crack like cheap paint, Reyna lied that he had no idea what Durbin, the DEA, the FBI and the Texas Department of Public Safety might be hiding. Wednesday, he declared that he thinks that Durbin is hiding exculpatory evidence. For at least 13 months, Reyna has been hiding behind what is in effect a federal firewall. He has said first that he does not know if the Department of Justice is concealing exculpatory evidence and now he has said he thinks it probably is.
There are flaws in Brady and subsequent rulings. Under Brady, prosecutors are required to disclose exculpatory evidence in a timely manner. This so called “timeliness requirement” has never been defined. Generally it means evidence of innocence must be disclosed before trial. Since what is happening in Waco is unprecedented, appeals courts have never particularly examined a case in which an entire justice system – including police, prosecutors and judges at multiple levels of government simply refuse to allow defendants to go to court to clear their names.
But defendants in the Twin Peaks case might find relief in a Ninth Circuit Court of Appeals case from late in 2004 title US v. Rene Blanco. It was a case made by the DEA and the DEA’s excuse for withholding evidence was that the Agency had a confidential informant to protect – which seems to be the argument Durbin is making this week: That is more important to protect a snitch or two from imagined threats than it is to allow 192 defendants to go to trial to prove their innocence in a timely manner – which might be reasonable defined as the average like expectancy of a pet rat.
The appeals judges found “that the government wrongly suppressed impeachment information about a confidential informant in violation of Brady and Giglio. We do not know whether there is additional Brady and Giglio material that the government has still not turned over to the defendant. We remand with instructions to the district court to order the government to reveal all information in its possession concerning the confidential informant. To the degree necessary and appropriate, the district court may inspect this material in camera.”
“There is no ambiguity in our law,” the Ninth Circuit continued. “The obligation under Brady and Giglio is the obligation of the government, not merely the obligation of the prosecutor. As we wrote in Zuno-Arce, ‘Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor’s hands until the agency decided the prosecutor ought to have it, and by allowing the prosecutor to tell the investigators not to give him certain materials unless he asked for them.