By SUSAN CRISS
Galveston County Daily News
This year bar associations across the country celebrated the 800th anniversary of the Magna Carta.
That document is considered the original precedent for the Rule of Law and for due process upon which our justice system is based.
The Magna Carta is a charter that King John of England entered into with some barons in 1215 to settle several disputes he had with the barons. In Clause 29 King John promised to not lock the barons in his dungeon for no good reason. The Clause stated that no free man could be imprisoned or stripped of his liberty without due process.
The Founding Fathers incorporated the due process language into the United States Constitution. The Fourteenth Amendment in the Bill of Rights demands that no person shall be deprived of life, liberty or property without due process of law.
The Texas Constitution in Sec. 19 of the Bill of Rights enumerated in Article 1 guarantees that no citizen of this State shall be deprived of liberty except by due course of the law of the land. Furthermore Sec. 12 demands that the legislature enact laws to render the remedy of the writ of habeas corpus to be speedy and effectual.
Writ of Habeas Corpus is the legal remedy used to enforce an accused person's right to not be deprived of liberty without due process. The term is a Latin one translating into an order to bring the body to court and justify why that body is locked up. Once a Writ of Habeas Corpus is filed the government must produce evidence to a judge that such probable cause exists. Before a judge signs a warrant for someone's arrest an officer must produce a sworn affidavit to the judge indicating what evidence that officer knows of that shows a particular person committed a particular crime. Only when a judge determines that the sworn affidavit on it's face has the required particular probable cause can the judge sign the warrant ordering the arrest.
The judge is not allowed to rely on any hearsay statements the officer makes. That affidavit is all the judge is allowed to consider in basing a decision to sign. Affidavits with conclusory language such as "This guy committed the crime of (fill in blank with a criminal offense)" type statements are not enough. The probable cause requirement demands facts instead of conclusions.
During the same month that lawyers celebrate the anniversary of the Magna Carta, 170 persons were arrested and jailed on May 17 in Waco. Officers presented a fill-in-the-blank affidavit to a Justice of the Peace. Not one statement in the affidavit referenced any particular named person committing any part of any criminal act. The affidavit said a bunch of Bandidos and a bunch of Cossack motorcycle gang members committed exhibited and discharged firearms and other weapons, wore identifying symbols and continuously or regularly engaged in the commission of criminal activities.
Sgt. Swanton of the Waco Police stated at a televised press conference that the decision made by law enforcement as to who to arrest and who to release were based on who looked guilty and who did not. Many of those arrested were not members of the Bandidos or Cossacks, any criminal gangs or motorcycle clubs. Many were veterans who fought abroad for our liberties. Many wore no symbols of the Bandidos or Cossacks. But they "looked guilty" to the police.
Many lawyers will celebrate the 800th anniversary of the Magna Carta by filing Writs of Habeas Corpus to release those who were unjustly locked up without probable cause or due process of law in Waco.