Fault Lines
19 October 2017

The Mess in Waco: How Prosecuting Almost 200 Bikers Crushes the System & Costs Taxpayers Big Time

June 11, 2015 (Mimesis Law) — When police arrested nearly 200 people after a shooting at a motorcycle rally at a Twin Peaks restaurant in Waco, Texas on May 17, it looked like a bad idea.  When a Justice of the Peace ordered bail set for the arrested bikers at an exorbitant $1 million apiece, in blatant disregard of the criteria prescribed by Texas law for fixing bail, the situation looked considerably worse.

Now, weeks later, as the local criminal justice system flounders, the aftermath of the Twin Peaks shooting has quickly become a legendary disaster.  The local criminal justice system is now left to process the 78 bikers arrested last month who remain in custody.

The civil liberties of the men and women arrested matter more than any government inconvenience.  Nevertheless, the current challenges are not mere irritations for a bunch of public servants.  An overburdened system tends to further neglect the due process rights of the accused.  The public has no choice but to pay unprecedented, unanticipated, and possibly unjustified costs.

Here’s how the system is holding up under the strain.

The Jail

Since authorities finally agreed to begin negotiating sensible terms of release, more than half of the 175 arrested bikers have left the McLennan County Jail, pending further proceedings.

At least one of the men arrested, Matthew Clendennen, has filed a federal civil rights suit against Waco authorities.  Clendennen is a Baylor University graduate and former volunteer firefighter.  He owns a landscaping business and has no criminal record.  After police arrested Clendennen on May 17, he remained in custody until his lawyer, Clinton Broden, helped to reduce his original $1 million bail to $100,000.

Many of the bikers now on the outside have filed complaints with the Texas Commission on Jail Standards, reporting questionable conditions within the jail.  Some of the complaints appear to be vague, relatively minor, or plainly misdirected.  “I thought Texas was part of the USA, not the USSR,” or criticism of “toxic tasting” food, for example.  While the bikers are justifiably angry, there is a big difference between a jailhouse meal tasting toxic and actually being toxic.  However, some of the grievances are grave.  Particularly worrisome are claims that jail officials have denied proper medical care to some inmates.

Nothing excuses holding inmates in inhumane or degrading conditions, of course.  But meeting the recent challenge placed on county facilities is rather staggering.

Consider the costs of feeding and housing a jailhouse population this much larger than what the county has ever faced before. Bear in mind too that McLennan County facilities continue to hold detainees unrelated to the Twin Peaks shooting. Waco police continue to arrest people for other offenses, after all. Presumably, the county’s budget is prepared to provide adequate resources for its routine jail population. But how can anyone expect that county jails stand prepared to hold and feed an explosion of inmates like this?  The situation asks the McLennan County Jail to have a whole lot more toxic tasting jail food on hand than could be reasonably expected.

The Judges

Thanks to Justice of the Peace Pete Peterson’s unreasonable — and flagrantly unlawful — decision to set bail for each of the arrested bikers at an absurd $1 million, the court now faces a tidal wave of bail reduction hearings.  That’s plenty to keep Matt Johnson and Ralph Strother, McLennan County’s primary felony court judges, awfully busy.

The Texas Criminal Defense Lawyers Association has called for additional judges.  Two defense lawyers, Walter Reaves and Keith Hampton, have petitioned the Texas Court of Criminal Appeals asking that court to order enough judicial assignments to properly handle the bail reduction hearings.

Judge Billy Ray Stubblefield, the presiding judge of the Third Administrative Judicial Region in Texas, is struggling to cope.  He is accustomed to appointing visiting judges to cover the bench when a judge goes on vacation or takes time off for an illness.  The logistics of assigning judges from other counties to help process the massive caseload now bearing down on McLennan County creates an unprecedented problem, though.  Do other counties have enough judges to spare?  What happens to the dockets in the visiting judges’ own courts?

Earlier this week, Stubblefield said, “When you have 170 arrested at the same time, it is just a sudden rush, like if you were in a fast-food restaurant and three buses pulled up and all the kids want their food just as fast as they normally do.  It is a nightmarish situation for everyone involved.”

Yes, it’s exactly like that.  Except that instead of cranky, hypoglycemic eighth-graders craving french fries, this situation involves adults charged with serious felonies pleading for their basic civil liberties.  Otherwise, just the same.  Or perhaps it is more troubling that Stubblefield considers a back-up at McDonald’s to be “nightmarish.”

Under the circumstances, though, Judge Stubblefield might deserve to be cut some slack for his blithe comparison.  After all, the fact remains that the Twin Peaks arrests clobbered the court system in and around Waco.

The Lawyers

In recent weeks, some of the arrested bikers have retained defense counsel.  Those who can’t afford their own representation, though, are entitled to court-appointed counsel.  As Houston attorney Mark Bennett pointed out shortly after the initial incident, “If the bikers (who see themselves as outlaws) stick together and reject cooperation with the law, they can gum up the McLennan County criminal-justice system for years to come.”

Foremost, there simply may not be enough lawyers on the court-appointed counsel list for McLennan County to meet the needs of the Twin Peaks defendants.  Then there is the very real concern about the ethical obligations of attorneys who represent Twin Peaks defendants.  The Texas Rules of Professional Conduct warn of the dangers of representing more than one client in a related matter.  In order to avoid a conflict of interests, each defendant must be advised by separate conflict counsel.  As Bennett pointed out, the court may have a hard time finding enough attorneys to appoint to defendants without creating unethical conflicts of interest.

Even if the court succeeds in finding enough lawyers to ethically and competently represent the defendants who can’t afford their own counsel, the costs to the public will be crippling.  Bennett estimated a possible price tag of $8.5 million, factoring “a meager $50,000 per case times 170 cases.”  Though we now know that fewer than 170 bikers require court-appointed counsel, there’s plenty of reason to believe that many of the cases will rack up more than $50K in costs.

Whose Bright Idea Was This?

There aren’t enough jailhouse resources.  There aren’t enough judges.  There aren’t enough attorneys.  And there surely aren’t enough bikers enjoying the rights guaranteed to them under the law.

While the first priority remains properly handling the situation as it is now, several background questions percolate.  How much of the ensuing trouble did the law enforcement authorities responsible for the arrests at Twin Peaks anticipate?  Did they coordinate in any meaningful way with the various government actors that are now shouldering the burden of the sweeping arrests on May 17?  Temporarily securing the crime scene is a no-brainer, but who decided to move forward with 175 arrests?  How did they think that the criminal justice system would handle these unprecedented demands?  Who decided that the aftermath was worth it?

Whose bright idea was this anyway?  And why is everyone else — the defendants, the county, the courts — bearing the costs?

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