That’s an unusually large number of indictments, and the general consensus is that not all of the people who have been arrested and indicted were actually participants in the brawl. Prosecutors haven’t specifically indicated who they think did what in the fight, or who fired the shots that actually killed people. Instead, the dragnet seems intended to break the resistance of gang members, wielding the prospect of lengthy sentences—15 years to life—as a bludgeon to convince some of the individuals who have been indicted to flip and offer prosecutors what they need to convict others, in return for plea bargains.
“Overall, the reason they brought so many indictments is they’re going to try to get people to flip on each other,” said Melissa Hamilton, a visiting criminal-law scholar at the University of Houston Law Center. “Probably what they’ll do is they’ll offer whoever pleas first a better deal.”
What’s interesting about the case is the use of the organized-crime statute. Texas’s law is similar to the federal RICO law. Using it affords Abel a whole range of new possibilities.
“It’s very clever on the part of the prosecutor,” Hamilton said.
First, it could make it easier to convict defendants, because the threshold for the crime is low. The corruption statute stipulates a great deal of crimes—the list begins with “murder, capital murder, arson, aggravated robbery, robbery, burglary, theft” and goes on for quite a while—but defendants in this case could likely be put behind bars if prosecutors can just prove that they were members of a criminal gang (in this case, the Cossacks or Bandidos) and that there was an agreement to commit a crime. It doesn’t have to have been an express agreement—it might be enough just to show, for example, that members of the gangs arrived en masse, knowing their rivals would be there and carrying illegal firearms.
“Most of these people, I don’t think they have evidence that they actually committed anything,” said Sandra Guerra Thompson, who directs the Criminal Justice Institute at the UH Law Center. “For most of them, they’ll have to prove an agreement to commit some sort of crime.”
Statues like RICO are often criticized for this reason, Thompson said—they sweep in people who haven’t committed any readily recognizable offense.
“You don’t have to actually be the person who commits the crimes, but if you’re a member of this group and then someone in your group commits a crime, it says you conspired with them,” she said. “It’s not as concrete as ‘Joe intended to do this act.’ It’s more ‘Joe was a part of the group, and he sort of agreed that these other people would do things.’ That has a tendency to sweep to pretty broadly.”
A second feature of the organized-crime law—and one that might raise further concerns—is that by making the case about the alleged criminal gang, prosecutors open up the range of evidence that might otherwise be ruled inadmissible. In essence, it allows prosecutors to make a character-based case against the defendants, and it creates an exception that allows hearsay.