Sam Bassett

Sam Bassett is a partner at Minton, Bassett, Flores & Carsey in Austin. He received his law and business degrees from the University of Texas. Sam has been board certified in criminal law since 1994.
Sam is listed in Best Lawyers in America, is AV Rated by Martindale Hubbel and is a Texas Monthly Super Lawyer. In 2014, 2016, 2018 and again in 2020, Best Lawyers in America named him Lawyer of the Year for criminal defense in Austin.

Sam served as chair of the District 9A Grievance Committee and the Texas Forensic Science Commission. He is a Past President of TCDLA. He is a frequent speaker on criminal law, family law and ethics.

Sam is the proud father of Kathleen and Daniel Bassett. He spends his spare time playing golf, boxing and working at his ranch near Floresville.

A Memorial: Roy Minton, 1931-2021

I was an outsider to the Red Brick House when I was asked to join in late 2000. Randy Leavitt and Martha Dickie had inquired and I jumped at the opportunity. Soon thereafter, I was trying a murder case in Georgetown with Roy and realized I had been invited to work with one of the very best to advocate in a courtroom. We succeeded in getting a lesser manslaughter verdict much to the chagrin of John Bradley who took a little steam out of us with a 20 year sentence from the jury. That is one of many predictable stories you might hear from many lawyers who worked with him over the years. He was awesome to watch preparing for trial as much as performing at trial.

Some of the less publicized qualities of Roy Q. Minton: He detested profanity (though he threw in an occasional “god dammit”); He was very liberal politically and he didn’t hesitate to tell the Republicans he represented (often saying, “You need to know, I’m a Democrat – A LIBERAL Democrat!); He adored Barbara – always stopping whatever meeting or phone call to walk her to the car when she came by the office; He doted over his 5 children and loved working with sons in the practice; He was not a fan of organized religion but was a “spiritualist” – often talking to me about those moments where “the invisibles” gave him a helping hand – in and out of the courtroom; He set fees too low – especially in his latter years (Often joking – “There is a point in your career where your rate should go DOWN!”); He and Charlie Burton would sleep on courthouse benches to hustle court appointments in the 60s, when a fee was difficult to get in Austin; He adored his pets – one time stopping a meeting with a high profile client because Barbara was out of town and he had to go feed the dog;  He loved to fly – a former military pilot, he truly enjoyed flying his twin engine Baron;  He had an awesome sense of humor (sometimes, in the middle of trial – he’d look at my worried face and say “You just want to try the easy ones?”); and – despite his reputation as a ruthless litigator/defender – I observed him to be kind and warm hearted, very accepting of people from all walks of life.

For me, this is a moment to pause and be grateful to have worked with him. More importantly, it is a moment to be remember that he taught me more about life than about law.

EVEN FOR THE DESPICABLE AMONG US: Rights and Due Process for Klansmen

The new novel, No Truth Left To Tell (Greenleaf Press 2020), by former federal prosecutor Michael McAuliffe poses important moral and ethical questions for lawyers and lay readers alike. The story, about the feds chasing the Klan in the Deep South, portrays a southern town still grappling with its history of racial violence. The Klan wants to re-ignite a race war, and it targets the town’s minority communities with burning crosses as their first attack. The town of Lynwood, Louisiana, is on edge, with more violence sure to come. Adrien Rush––a young federal civil rights prosecutor from D.C.––is sent to investigate. He teams up with Lee Mercer, a black FBI agent from the local office, who is older and wiser.

Their investigation of the violent racists and how they work with each other despite their differences form the spine of the book. Their journey together is filled with drama, including a difficult, but real friendship that develops between them, and ultimately a great sacrifice for one. The tension between Rush and Mercer mirrors the real-world relationship between prosecutors and investigators. It makes for compelling reading.

The novel is full of other interesting, memorable characters. For example, the book opens with a prologue set in 1920 in which Nettie Wynn, a young black girl, witnesses a lynching of a black man in the town’s central square. The horror of the murderous scene creates the emotional foundation for the novel’s narrative. Readers come to know–and admire–Nettie Wynn as she is reintroduced as an elderly woman of modesty and grace.

The novel’s story is about how America deals with homegrown violent extremism, both in and out of the courtroom. Are the Klan’s actions domestic terrorism? Should the same rules apply to violent extremists as other criminal defendants? These are challenging,  meaningful questions, and the author wraps them inside a story that entertains and challenges at the same time. 

No Truth Left To Tell is a non-political book that forces us to reflect on the choices we’ve made about constitutional rights and due process, especially when those rights are for the despicable among us––that is, the Klansmen. There are chapters about the feds trying to get the Klan’s membership lists with a grand jury subpoena and, more dramatically, how a local detective obtains a confession from the Klan leader. Lawyers (and those trained or working in the law) would no doubt see the constitutional issues that arise from these events.

I could easily see No Truth Left To Tell as a law school “read” because the book is set in the legal world as much as it is in a southern town. The book is a hybrid. It’s a crime thriller carried in bookstores and online, but it’s also a worthy teaching tool for lawyers and students of the law. 

The novel’s author, Michael McAuliffe, is a graduate of the University of Texas at Austin and grew up in Spring, Texas. His connection to Texas is strong as he has immediate family members living in both Byrne and New Braunfels. For more information about the book or the author, you can go to book’s website at https://notruthlefttotell.com.

President’s Message: Have You Ever . . . – By Samuel E. Bassett

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Have you ever…..

comforted a mother watching her son being handcuffed for prison?
counseled a young person shaking from drug withdrawals?
tried to find a way to say you’re sorry to a crime victim in your case?
worked countless hours for a client who can’t pay you a dime?
gotten sick to your stomach during trial?
awakened at night, writing notes to yourself thinking of ideas for trial?
been threatened with arrest while representing a client while in a jury trial?
had your children ask why you represent someone who did something bad?
thought about how you could have done a better job for a client?
had to apologize to a client for making a mistake?
wondered how you’d pay bills for your office?
had to fire someone who worked for you for years?
done all you could for a client who then yelled at you in anger?
had a client take their own life?
wept silently as you saw crime scene photos?

Have you ever…

experienced the joy of a not guilty verdict after months of hard work?
gotten a hug from a client, or a client’s parents, after a job well done?
had an addict client visit you after years of sobriety to thank you?
helped a client gain custody of children after being falsely accused of abusing them?
helped to expose a corrupt law enforcement officer or prosecutor?
played a positive role in getting a fellow attorney help with an addiction?
breathed a huge sigh of relief after fighting for a just result and seeing it happen?
received a thank you note from a crime victim in a case you handled for the defense?
seen one of your career dreams come true—leading a remarkable organization of lawyers committed to the endless fight for individual rights and justice?

I have experienced all of these and more . . . and I’m grateful to have been your President for these past few months. Thanks for continuing to make TCDLA the best organization of its kind in the United States. Good verdicts to you all.

President’s Message: The Civil Invasion of Criminal Matters – By Samuel E. Bassett

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The world of defending a criminal case used to be simpler. As I look around my office at lawyers who have practiced in excess of 50 years, I realize how much the landscape has changed in just a generation or two. Nowhere is this more apparent than in the increasing number of civil proceedings that accompany even a misdemeanor criminal case today. What is relatively new as well is the new landscape on college campuses of Title IX requirements in cases where sexual misconduct is alleged.

I recently lunched with a parent of a college student. She told me a story about how her son, a college freshman, had engaged in a consensual sexual encounter with a young lady. Both parties were students at the same university. It is reported that the Feds have implemented new policies under the Obama administration that seek to curtail the number of sexual assaults on college campuses. The simple version is that many, if not most, college campuses receiving Title IX funding have requirements regarding sexual conduct for students, which can include getting verbal consent and permission for each and every sexual act as a situation progresses (i.e., kissing, touching, etc.). What has accompanied the new policies is an increase in staffing at most universities, usually in the form of additional assistant deans of students and staff to investigate claims of sexual misconduct by a student.

Students who are accused are often asked to come in and give a statement to a hearings officer within hours of the initial allegation. Many are blindsided by the quick process and have no idea what the impact might be on their future. A finding of sexual misconduct will stay on the student’s academic record forever. Statements in the academic setting are also useful to law enforcement in the event of a criminal investigation. Yes, a student can appeal the findings and sanctions. What is the nature of this appeal? Typically, the student is allowed to present evidence but is not allowed to have any meaningful legal assistance at the disciplinary appeal hearing. A lawyer can attend with the student but essentially must sit like a potted plant—with the exception that the lawyer and student may pass notes to one another.

It is difficult to believe that this is a process adopted by thinking individuals who ostensibly should be modeling fairness and due process. There are civil lawsuits being filed to attempt to change this imbalanced process, and there are high-profile horror stories. The attempt to curtail sexual misconduct on campuses is a noble goal and should be pursued. However, given the short track record of recent cases on campuses involving the new initiative, you have to wonder if basic principles of fairness have taken a back seat to a well-intentioned political agenda.

We’ve seen this play before in the context of other types of cases. Civil judges often have hearings early in a process following an arrest over whether to grant a protective order in a family violence case. The criminal defense attorney should never ignore this and the pitfalls as well as the opportunities it presents. In child abuse cases, there is often concurrent family law litigation moving much more quickly than the criminal case, and it can have huge consequences on the outcome of the case. I have three criminal cases right now in which the alleged victim has filed a concurrent civil suit for monetary damages. As discussed above, statements made by students at their “initial meeting” with a dean of students representative can greatly impact the outcome of a future sexual assault case in district court.

It is not my role to advise anyone about policy matters on how we handle the serious issues of sexual assault, family violence, or child abuse. However, it is at the heart of all TCDLA members, judges, and prosecutors to consider how an individual accused is treated when well-intentioned policies are implemented that lack fundamental fairness. If you have such a case, get involved early and fight for your client. The fight can be long, difficult and take more time than you ever expected. However, it is your duty to engage rather than turning a blind eye to concurrent civil and administrative proceedings that can shape the outcome and your client’s future.

President’s Message: David and Goliath – By Samuel E. Bassett

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 I recently read Malcolm Gladwell’s latest book—David and Goliath. Most of us are familiar with the Old Testament story of the shepherd who slays the Philistine giant who was physically imposing, coated with armor and equipped with the best weapons of the time. How did David win? Simple—David was prepared for a different fight than Goliath. Goliath expected hand-to-hand combat while David came with a stone and a sling.

I think all of us have had those moments heading into a trial in a serious case with almost no evidence in our favor. Gladwell calls it “the unexpected freedom that comes from having nothing to lose.” Other times, we have clients who turn down a plea bargain offer and we enter into battle even though we have serious concerns that the outcome might be much worse than the pretrial offer. I think this happens disproportionately in cases with court-appointed attorneys who often do not enjoy the same level of trust as between most privately retained attorneys and their clients. I say “most” privately retained clients because all of us have had experiences where our privately retained clients turn on us, to the point of threatening a grievance and/or demanding a fee refund once the reality of the case hits them and we give them our final opinion.

As much as I bemoan these situations, I have learned it is when I am pushed against the wall with seemingly no hope that I do my best work. Malcolm Gladwell talks about this very thing in his book, David and Goliath. Gladwell states:

[M]uch of what we consider valuable in our world arises out of lopsided conflicts, because the act of facing overwhelming odds produces greatness and beauty . . .

I have found this to be true not only with advocacy as a lawyer but also in other aspects of our criminal justice system. I have seen jurors struggle over sending a young person to prison for a terrible and heinous crime, wrestling with the decision for days. I have seen judges show mercy when every indication prior to trial was that retribution would be the leading force. I have seen prosecutors give a defendant a much more lenient sentence in a case where a trial result would certainly be harsh. It is the essence of our job to fight to the bitter end for our clients, who are often detested and difficult to like.

Another analogy is that the arrogance of power can work against the Government in trying a case. In his book, Gladwell states: “Goliath’s size was also the source of his greatest weakness . . . The powerful and strong are not always what they seem.” How many times have you seen a prosecutor who was arrogant and dismissive before trial? Gladwell states further, “[T]here comes a point where the best intentioned application of power and authority begins to backfire.” These thoughts capture the essence of what we do. We must constantly challenge the assumption that the fact that someone has been arrested means they are guilty. I know the Constitution says otherwise, but the reality is that there is still a presumption of guilt in the minds of most of our jurors, especially in serious cases.

One of the most rewarding moments in a trial is seeing a prosecutor who was so confident prior to trial suddenly become more humble and approachable when he or she realizes that the case isn’t as simple as originally thought. Putting up a battle, even if you don’t win, is at the core of what we are supposed to be doing. I hate losing. Yet, I have suffered many guilty verdicts. However, as Vince Lombardi said, “Show me a good loser and I’ll show you a loser.” Of course, one of the highest rewards as a criminal defense lawyer is when the judge utters the words from the verdict form and says, “Not Guilty.” Be humble in those moments but don’t forget to enjoy them as well.

President’s Message: Discovery – By Samuel E. Bassett

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As a law student, I had a front row seat at the Michael Morton trial. I watched as two of my mentors and then employers—Bill Allison and Bill White—fought during the Morton murder trial in the late 1980s. I was a green law clerk, watching with my eyes wide open. A constant frustration throughout the case was the deep suspicion that evidence was being withheld, but there was no way to know for sure. Never was this more apparent than when the state declined to call the chief investigative deputy (Don Woods) and instead called legendary Williamson County Sheriff Jim Boutwell. On cross-examination, Boutwell was asked if he had prepared a report, if he had taken notes, if he had made sketches… anything? His repeated answer: “No,” except for one small page of limited notes. It took decades to discover what was withheld. That story is now well known. Key pieces of exculpatory evidence were found in the state’s file, items NEVER given to the defense. I remember Bill Allison telling me, “The biggest problem we have is that people don’t want to believe that random intruders can commit murder.” It turns out, Bill was exactly right. Three decades later, Michael is free and a random intruder is in prison for the brutal murder of Christine Morton.

Fast forward 30 years and we now have numerous instances of prosecutorial conduct exposed. Ken Anderson (the Williamson County District Attorney who prosecuted Morton) is now without a law license and has a conviction as a result of the misconduct. Charles Sebesta has been disbarred after a State Bar evidentiary panel found that he submitted false testimony and withheld favorable evidence in gaining a conviction against Anthony Graves. John Jackson, the former prosecutor in the case of State v. Cameron Todd Willingham, is facing possible disciplinary action for failing to disclose evidence of a promise of benefit to a snitch who testified in Willingham’s trial, which resulted in a conviction and execution despite the use of dubious “scientific” testimony regarding the alleged arson. Kelly Siegler, a legendary prosecutor with a strong media presence, now faces possible disciplinary action in State v. David Temple, in which she is accused of withholding favorable evidence from the defense in a legendary trial court battle with Dick DeGeurin. In fact, Retired District Judge Larry Gist made a finding on habeas that Siegler withheld facts during her prosecution of the case that would have assisted him in preparing a defense (kudos to Stanley Schneider and Casie Gotro for their work on the habeas).

Moving forward on these and other cases, the question becomes:

What is the real impact of these cases on the State Bar of Texas and disciplinary enforcement of prosecutors who fail to disclose exculpatory evidence or other evidence required under Brady and/or Article 39.14 of the Code of Criminal Procedure?

We may have the beginning of an answer in William Allen Schultz v. Commission on Lawyer Discipline (December 17, 2015). In that case, the Board of Disciplinary Appeals held that Article 3.09(d) of the Texas Discplinary Rules of Professional Conduct actually imposes a duty on all prosecutors that may very well exceed the limits of Brady. One argument from the prosecutor in the case, Mr. William Allen Schultz of Denton County, is that a prosecutor’s duty to disclose evidence to the defense should be limited to the due process requirements under Brady so as to avoid “multiple confusing standards.” The Board responded by writing, among other things:

We do not find this argument persuasive, particularly because of the recent amendment to Texas criminal procedure that now mandates the same standard for disclosure as Rule 3.09(d): Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged. Tex. Code Crim. Proc. Ann. art. 39.14(h) (West Supp. 2014) (effective January 1, 2014). Although art. 39.14 is not dispositive in this case, its promulgation refutes Schultz’s position that imposing a broader duty on prosecutors to disclose information to the defense than Brady creates an unworkable burden. That “unworkable burden,” if there is one, already exists.

In the Schultz case, the prosecutor failed to disclose to the defense, in an Aggravated Assault prosecution, that the complaining witness had stated that “I could not see his face” when asked to provide an eyewitness identification regarding her attacker, an estranged husband.

Do I believe that every prosecutor who makes a mistake should be disbarred? No. Do I believe that prosecutors who repeatedly commit violations of the rules of fair play in discovery should be disciplined? Yes. The vast majority of prosecutors I deal with take their duties on this issue very seriously, and district attorneys across the state are revamping their methods of providing discovery thanks to the revelations on the Morton case and other cases. We have come full circle on this important issue. However, we must be careful not to abuse the process of filing complaints against prosecutors or we run the risk of losing ground in this ongoing battle.

President’s Message: The Future – By Samuel E. Bassett

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One challenge of life is to grapple with the reality that your time on Earth will pass, sooner or later. As the saying goes, “None of us are getting out of here alive!” In the context of our professional lives, this is also true even if we go on to other things after we leave the practice of law.

One of my goals as President is to cultivate young leaders in the criminal defense bar. This past week, we announced the winner of the 2015 Charles Butts Scholarship in the amount of $5,000 for a third-year law student with a demonstrated interest in criminal defense. This year’s winner, Allison Arriola, is a St. Mary’s law student with many accomplishments in her tenure as a law student. As those on the executive committee can tell you, the competition for this scholarship was fierce. We had twenty-one (21) applicants, and I would have been comfortable awarding the scholarship to almost any of the applicants. In fact, more than one executive committee member asked the question, “Can we give out more than one scholarship?” Congratulations to Ms. Arriola, and we look forward to awarding the scholarship to her at our February Board meeting and President’s trip to New Orleans. If you haven’t signed up, join us for some Federal Law CLE, a renewing of the TCDLA spirit, and perhaps a cocktail or two in the French Quarter.

What is apparent to me from reading the applications is that the future of a zealous criminal defense bar in Texas is bright. It is remarkable to me how many young law students see the need for the ideals of our Constitution to be carried out through zealous criminal defense. Another remarkable reality that I learned in reading the applications is the amount of indebtedness that can accompany a law degree in the 21st century. Many of the applicants report a student loan debt exceeding $100,000 for their college and law school education. Even more remarkable to me is that many of those same applicants intend to work in the area of indigent defense through either Public Defender offices or doing a majority of court appointment work. This attitude is inspiring to me.

My urging for all of you more experienced lawyers is to take a young lawyer or law student under your wing. The energy, enthusiasm, and idealism can rekindle your professional soul. We all need this from time to time.

President’s Message: Loss – By Samuel E. Bassett

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As criminal defense lawyers, we find ourselves in the midst of tragedies of life that redefine families, futures, and perspectives. How we learn to handle the emotions and practical effects of this aspect of our work can make all the difference in our effectiveness, our happiness, and our contribution to those we represent.

First, I’d like to talk about the loss a family suffers when their loved one is arrested and charged with a crime. Often, an arrest follows a downward spiral in a young person’s life tainted by poor decisions, substance use/abuse, and mental health challenges. It is easy to fall into the trap of blaming that person’s family or friends. However, I’ve had dozens of hard-working, caring parents in my office whose children have done some terrible things. Often, the answers on what to do are complicated and not simple. The solution is often a long-term treatment plan, either as a term of probation or following incarceration. One of the great joys in our work is when we see a struggling young person battle through challenges to come out a more caring, loving, and effective human being as a result of an arrest. We should hasten that process as their counselor at law.

Second, I’d like to talk about the loss that loved ones of a crime victim suffer, particularly in a serious felony case. As the lawyer for a person accused, there is nothing like the feeling you get when seeing the family of a deceased victim look at you and your client. How do you respond? Obviously, these answers are different for everyone, but my experience teaches me to make sure that you demonstrate sorrow in as professional a manner as possible. All the while, you must understand that they may be wholly unable to appreciate your empathy because you are associated with a person who has inflicted enormous pain on them. Do not be critical of them if they lash out, as you must understand they are acting in an instinctual and emotional context. It is always my hope that as they reflect on the process later, they will remember you as someone who always treated them with empathy and respect, even if there were disagreements about what should happen to your client. Don’t ever forget that your job and allegiance is to your client and you must do your job. A few years ago I was having dinner with a friend and noticed a familiar-looking woman walk in and look at me. I could not remember who she was at that moment. Soon, the waitress brought a drink over to me with a handwritten note: “It’s good to see you, Sam. I hope you are doing well.” It was signed by the mother of a murder victim, and I had been the lawyer for the defendant. I walked over, hugged her and we talked. I will keep that note forever.

I’d like to finally comment on how our system handles these difficult issues. In today’s criminal justice system, there are infrastructures within district attorney’s offices, police departments, and volunteer organizations to assist loved ones of crime victims. I believe that this is an improvement over times in which victims were essentially ignored in the process. I am also wary of the well-intentioned counseling of victims that a harsh punishment can assist them in finding peace. The allocution process now required can be healing, but sometimes I’ve seen it as unnecessarily divisive and hateful. I’ve given wide latitude to any loved one’s comments during an allocution. However, judges and prosecutors should do a better job of preventing tragic situations from evolving into a media circus. In a recent case in Austin, jurors were literally chased down the street by media who wanted to cross-examine them about their decision following an emotionally charged trial.

Each of you should take care of yourself and your own pro­cessing of these difficult situations. We are a profession that is more susceptible than most to depression, substance abuse, and difficulties in our personal lives. I have found that I do much better when I find healthy outlets to cope with the intense stress that can occur when we are dealing with difficult cases. To help others, you must first take care of yourself.

President’s Message: The Badge – By Samuel E. Bassett

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The tragic death of Deputy Goforth in Houston has again brought to the forefront the issue of law enforcement’s changing relationship with segments of our society. It is on my mind as I write this column in the days following his funeral, attended and watched by thousands in our state and in our country. It was shocking to learn that this father and husband senselessly lost his life simply for wearing the uniform.

As a criminal defense lawyer, I am in the midst of the constitutionally recognized tension between law enforcement authority and individual accused citizens. Every day I go to the courthouse, I am a player in the necessary stress between the two viewpoints. Our forefathers endorsed the necessity of the tension in the writing of the Constitution and the Bill of Rights. Obviously, the passing of over two hundred years has occasioned change in what defines abusive governmental power. Technology and media (social and conventional) are in the process of redefining the paradigm in new ways. Soon most police officers will be equipped with body cameras to further document all contacts with the public.

In Austin, where I practice, an activist group regularly patrols the entertainment district with cameras rolling to capture police contacts in conflict situations. These groups post questionable behavior on the part of police officers, often within minutes. This is an unprecedented phenomenon happening across our country. In some instances, the audiovisual evidence has stunned us, showing a clear abuse of police discretion on many occasions. In a few instances, video recordings have captured seemingly homicidal actions by police officers. The documenting of events is also shedding light on instances of racial mistreatment. A bigger question is being urged again—is there a pattern of disparate treatment depending upon your race? I believe that this turmoil will help us improve. The transition will carry a lot of rhetoric and misplaced anger. Unexamined activity by those with power almost always results in abuse of that power.

This reality has to be balanced against what I believe to also be true: the vast majority of law enforcement officers are honest, not racially biased, and have a very difficult job. Police officers are sworn protectors of our safety. They make great sacrifices to gain a badge and even more to maintain it. Imagine a career where the moment you start your shift, you are under the threat of harm and even death without warning. Further, imagine a career where a significant number of people you are trying to protect detest you simply because you wear the badge. This is why I strive to treat all law enforcement officers I meet in my work with the utmost respect, even though it is my job to rigorously challenge them at times. When possible, I always thank a police officer who has to appear in court on one of my cases, even if I oppose their viewpoint on that particular case.

Shortly after the tragic shooting of Deputy Goforth, hyperbole and extremism emerged. The comment of “All Lives Matter” added fuel to the fire. I was concerned that this comment was based upon an assumption that because the shooter was African American, his senseless killing of the officer was an indication of a war against law enforcement by that community. I thought the comment was an unnecessary stoking of the fire, but also understood it was made in a moment of grief and frustration. Those in power have a responsibility to be accountable for their words in difficult situations. It is argued that one cannot support law enforcement and also be supportive of an examination of racial prejudices. I stand for the proposition that you can detest abuse of power by law enforcement (racially motivated or not) while at the same time having the utmost respect for those who risk their lives to protect us every day.

President’s Message: Twin Peaks Justice – By Samuel E. Bassett

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Waco—home of the Baylor Bears, the Texas Ranger Museum, the Dr. Pepper Museum, and venue to one of the most controversial events in the criminal justice history of Texas. Is another case unfolding that will rival the Branch Davidian debacle?

In 1993, the Branch Davidian standoff captured the nation’s attention as a botched attempt at a federal law enforcement raid resulted in a standoff that lasted weeks. In the end, 76 people died as federal agents moved on the compound. To this day, there are disagreements as to the wisdom of the move and who was at fault for the fire that killed dozens. Ultimately, there was a trial with surviving members of the Branch Davidian sect in Federal Court. Many of our leaders were part of that trial team—Gerry Morris, Tim Evans, Jeff Kearney, Doug Tinker, Joe Turner, Robert Hirschhorn, to name a few. Dick DeGuerin entered the compound before the fire to meet with his client, David Koresh. Koresh died during the raid that ended the stand­off. It was a test of our criminal justice system—albeit in Federal Court. I recall Doug Tinker’s words after the trial: “I love my country but in this case I hate my government.”

Fast forward to May 17, 2015, when almost 180 individuals are arrested following a confrontation between rival biker gangs and law enforcement in the parking lot of a Twin Peaks Restaurant in Waco. Nine people lay dead and several others wounded. Capital Murder charges are filed. Unlike the Branch Davidian fiasco, this case falls under the jurisdiction of State District Courts in McLennan County. It was striking how quickly and aggressively law enforcement leaders stepped in front of cameras to report their version of events. Soon thereafter, a Justice of the Peace set identical bonds of $1,000,000 each for all those charged.

We now know the District Attorney’s office assisted law enforcement in drafting the probable cause affidavits in “cut and paste” style as to each defendant. The pace of reviewing and revising the bonds for the individual defendants was inexcusably slow. No one in McLennan County seemed to want any outside assistance. Ultimately, the District Attorney’s Office lowered almost all of the bonds. Attorneys involved quickly filed writs, motions to recuse, and civil suits. In the past two weeks, a new grand jury was seated with Waco Police Detective James Head selected as foreman. This same detective had some role in the investigation of the cases. Will this same grand jury consider this case? If so, can it be more apparent that McLennan County is simply not equipped to handle these cases in a manner that meets some modicum of fairness and due process?

As I write this column, I realize we are just seeing the first chapters of what will be several revelations about the facts of the case and the process to be implemented in the prosecutions. Examining trials have been requested, and there is movement toward a Visiting Judge to preside over examining trials. Many of our members, including Clint Broden, are on the front lines against what appears to be an insular and parochial criminal justice establishment. What is TCDLA doing? In May, in the days following the arrests and setting of bonds, President Emmett Harris penned an open letter regarding the case to the media. As events unfolded, TCDLA held a round table forum for attorneys involved in the Waco cases at the Rusty Duncan course in San Antonio. Following those events and following the grand jury issue noted above, I wrote a letter regarding the selection of Detective Head as foreman. In mid-July, a Waco Biker Case Task Force was formed with Board members Jim Darnell (El Paso), Carmen Roe (Houston), and Susan Kelly (Waco). The task force’s purpose is to respond as quickly as possible to appropriate requests for assistance from those involved. TCDLA will release another open letter communication, urging that an independent grand jury consider the indictments in this case.

This case is important to TCDLA and to all Texans. We cannot permit rubber-stamp justice and short-circuiting of Due Process. I am proud of members involved in representation, and I am proud to be involved in an organization that continues the fight against a system in disrepair. I have no doubt that many inno­cent citizens were arrested on May 17, 2015. I believe that many were overcharged. I also believe that a minority of those involved are likely guilty of some wrongdoing. Some important questions remain to be answered—such as how many law enforcement officers acted improperly in firing their weapons on May 17, 2015, and were those actions justified? As this unravels, TCDLA will continue to fight for the rights of all Texans, especially those accused of crime.