Waco Shot In The Dark

June 7, 2018

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Waco Shot In The Dark

A couple of Houston lawyers named Paul Looney and Mark Thiessen filed an interesting motion Monday. It is based on a legal technicality and it has the potential to set most of the remaining Twin Peaks defendants free and clear.

It is not going to accomplish that, of course.

Previously in the Twin Peaks cases, defendants were arrested on the basis of flagrantly perjurious and photocopied arrest affidavits, denied a reasonable bail or presumption of innocence and indicted on an assembly line.

The motion was filed in Judge Matt Johnson’s 54th District Court. Johnson is District Attorney Abelino Reyna’s former law partner and for the last three years he has demonstrated absolutely no concern about the legal niceties of the case. Johnson lives in Waco. He has a nice, easy hustle going. He works in a nice courthouse. He does what he needs to do. He doesn’t need to grant this motion.

No Superseding Indictments

But the technicality is interesting. It was filed on behalf of a Bandido named Marcus Pilkington who was wounded during the Twin Peaks ambush and was the last defendant to be granted bail. All of the current defendants in the case have been indicted twice, first in 2016 and then again this year. The technicality is hidden there.

Looney and Thiesson credit a scholarly Waco attorney named Robert Callahan for finding the loophole. Looney said in a press release Monday that he is “of the opinion that the second indictment was unlawfully obtained and cannot now be lawfully obtained. Just when it was beginning to look like the McLennan County District Attorneys office had discarded the ‘Book of Waco’ and chosen to follow the Code of Criminal Procedure, we found that they are still making their own rules and have now made an inexcusable blunder.”

The blunder is that Texas, as opposed to the federal courts, does not allow superseding indictments.

Wonderfully Argued

“A felony case in Texas must proceed by indictment,” the Houston lawyers complain to Johnson, “but cannot proceed by TWO indictments. Yet that is what the State has apparently attempted to do herein, although it is not entirely clear whether the State intends the new indictment to supplant or to merely supplement the prior indictment, which has not formally been dismissed. The State issued a new indictment carrying the same cause number as the original indictment in this case, yet charging a different offense. An indictment cannot be ‘supplemented’ or superseded by way of a new indictment. There is nothing in statute, rule or law that allows the State to do what they have attempted to do herein. New charges require a new indictment, proceeding under a new cause number. Once a case has been initiated by indictment, the indictment can be amended. but such amendments can only be made pursuant to Tex.Code Crim.Proc. Arts. 28.10 and 28.11. These procedures were wholly ignored by the State, and therefore the indictment issued on May 9, 2018 in this case is improper as a matter of law and must be quashed and dismissed.”

The new indictments, the argument boils down to, should have been assigned new case numbers.
“All amendments to an indictment or information shall be made with leave of the court and under its direction” the defense lawyers continue. “At no point did the State seek leave of court to amend the indictment in this cause. At no point did this Honorable Court ever direct the State to amend the indictment in this cause. The State had no authorization to alter the prior indictment in this matter in any way, and the re-indictment, supplemental indictment, and/or superseding indictment purporting to amend the indictment in this cause is invalid as a matter of law and must be quashed. Moreover, by not making it clear if this new indictment is to supplement or supplant the prior indictment, the State has unnecessarily thrown the case into limbo: unless the new indictment is quashed, the Defendant cannot know what allegations he is to defend against.”

“Moreover, an indictment may not be amended over the defendant’s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced…. The second indictment charges the Defendant with an entirely different offense, involving certain different facts than the original indictment alleged. This clearly prejudices the Defendant’s substantial rights. Thus, the re-indictment must be quashed on objection by the Defendant. The Defendant hereby formally objects to these changes of substance and form and requests that the new indictment in this case, returned May 9, 2018, be quashed and dismissed.”

Isn’t that a nice motion?

What do you think? Did Judge Johnson laugh out loud when he read it or do you think he merely smiled.

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15 Responses to “Waco Shot In The Dark”

  1. Paladin Says:

    @ Eochaidh “Root Gut” OghaChruithne

    John Selman, Sr. was indeed a consummate coward, as were the Ford brothers and Jack McCall. They were all appropriately rewarded, as will be those that lied at the trial of Pike and Portillo.

    Long May You Ride,

    Paladin

  2. Penguin Says:

    My gut reaction to the legal argument is “setup for appeals”, but the argument seems sound… I have never read the Texas Law nor the relevant bar reviews, but it sound right. Smart dude!

    I have done the same thing sorts, in pro per crafted a case for appeal later.

    Of course, anybody who thinks that Courts are not Political is dreaming. Still there is a constant pressure toward law.

    Judges are keenly aware of the vise in which they exist, and live in comfortable circumstance between jaws of political form juxtaposed to legal form.

    Political power comes from, as Mao said…the g…

  3. Mark Says:

    I see this as a set up more than a shot in the dark. If the judge brushes this off with some bench wordsmithing. He’s going to show contempt for the law and justice from the very start to very end. This will be huge in civil suits and appeals. It may be a shot in the dark with the corrupt Waco players but it’s going to be a wooden stake through the heart of the lawless. Like I said long ago, the lawyers will be setting the Waco courts up for later dates because the Waco courts are too far gone to expect fairness and lawful justice.

  4. freebird Says:

    Even a shot in the dark is still a shot….. Location of said shot to be determined. I can live with that! Sometimes a leap of faith or just a leap is the only play we have.

    Send your legos back

  5. Paladin Says:

    @ Mad Midget;

    I learned many years ago that you can’t fix stupid.

    Long May You Ride,

    Paladin

  6. Mad Midget Says:

    @ Paladin
    Well stated, as usual. The dipshits in Waco could stand for some of your logic to rub off on ’em, but I can’t imagine you’d want to get close enough.

  7. Below 2% Says:

    It just goes to show who is calling these shots. I guess the feds need to check TEXAS law, instead of doing what they always do in federal court.

  8. freebird Says:

    Foresee a hold in abeyance order due to the fact they are still searching for a way to stall

  9. Penguin Says:

    Not motorcycle topic, but essay on how individuals are “marginalized” by means of name calling…like Cosby was/is, and also as “motorcycle gangs” (clubs) are.

    http://www.wsws.org/en/articles/2018/06/07/chap-j07.html

  10. rw Says:

    2 wrongs don’t make a right but 3 rights will make a left

  11. Penguin Says:

    Yes, two wrong “defense” is known as tu quoque fallacy

    https://en.wikipedia.org/wiki/Tu_quoque

  12. popeye Says:

    2 wrongs dont make it right

  13. Paladin Says:

    My concern would be that the original charges are overly broad and not as easily defendable. Whereas; the premeditated acts of the Cossacks, combined with the videos clearly show the Bandidos were not willing participants in a riot and were merely acting in self-defense.

    Example; A video shows an individual armed with a chain attempting to kill another. An individual armed with a flashlight intercedes on behalf of the potential victim. This is viewed as self-defense, as in defense of others. The lethality of the individual armed with the chain was such that he was shot multiple times by law enforcement. As such; law enforcement also interceded on behalf of the potential victim.

    One is not willfully participating in a riot when one did not start the riot, or when one is defending oneself from those that initiated the riot. Running away is not a viable defense against those that would cause one immediate death or grave bodily injury. To do so would require one to gamble on the fact that their stamina, speed, and agility would be superior to that of their pursuer. One only has to look at the animal kingdom to see how well that works out.

    Paladin

  14. Paula Carroll Swann Says:

    Yes, as they had court today in scheduling their court dates for after the first of the year. One was given a August court date and his attorney wasn’t present.
    Now these new indictments are not legal. They have one for murder that officer Bucher is TWICE GUILTY for Kirchner death, Not only was he not a threat to to anyone when Bucher shot him in the Thigh hitting the main artery & then Bucher held him from seeking medical treatment.
    Now added yet another murder charge on another innocent person of said that another unknown assailant committed the offense of murder.
    I don’t think any of the evidence can be used in court for it’s all contaminated with multiple DNA’s with no GSR testing to see who all fired .

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