Two and one-half years after the bloody shootout between rival biker gangs at the Twin Peaks Restaurant in Waco, Texas on May 17, 2015 is no closer to resolution today than it was in 2015.  As this blog is being written, only one case has proceeding to trial and even it has yet to reach its conclusion.  This case is a mess…


Outlaw Biker Gang or Biker Club


According to state and federal law enforcement allegations, Texas has two primary “outlaw biker gangs”—the Bandidos and the Cossacks, with the Bandidos being the largest and dominant of the two.


Prosecutors claim the issues that led to the violent Twin Peaks shootout that left 9 people dead and 20 others wounded developed in 2013 when a “state of war” was declared between the two biker gangs.  Attorneys for the leaders of the biker clubs deny the allegations and have responded that the charges against most of the charged defendants are very thin.


Bikers Welcome


There are many restaurants and other venues, as well as numerous salons and “beer joints,” throughout the state of Texas that post “Bikers Welcome” signs outside their establishments. That’s because Texas has a large law-abiding biker population, many of whom are not affiliated with any motorcycle club, much less an “outlaw gang.”  Those who do belong to biker clubs argue that most of the “outlaw biker gangs” have gone legit and are legal enterprises run for bike enthusiast.


So it was not unusual when the Twin Peaks Restaurant, which had only been opened slightly more than a month before the violent melee, agreed to host a “Bike Night” on May 17, 2015 that would be attended by the Bandidos and Cossacks. There had been a similar gathering shortly after the restaurant opened that had went off without incident.


Waco PD Surveil Twin Peaks


But for some reason the Waco Police Department either suspected or anticipated there would be a violent confrontation between the two rival gangs at the May 17 confab. The department deployed 18 of its officers and its militarized SWAT team to take up position around the Twin Peaks Restaurant. This law enforcement contingent was augmented with four officers from the Texas Department of Public Safety.


An assortment of videos—some from restaurant surveillance cameras and others from police cameras—show a physical altercation between the two biker gangs turning into a violent shootout. It would later be established that four of the ten people killed were shot with one rifle from the Waco police and two other people had mixed wounds from police weapons and other guns. An ensuing search of the restaurant and surrounding area found 475 weapons, 151 of which were firearms (including 12 long guns), and the rest was an assortment of brass knuckles, batons, knives, and the like.


DA Takes Lead of Investigation


Immediately after the shootout McLennan County District Attorney Abel Reyna and two of his assistants showed up the scene and, as evidence would later reveal, inserted themselves into the police investigation. The police immediately detained 239 “bikers”—of which 62 were released shortly afterwards.


It remains unclear to this day whether DA Reyna or the Waco police chief ordered the detention of the remaining 177 people taken into custody that day. Bail was set for $1 million for each of the individuals held in custody, all of whom had been charged with, per Reyna’s instructions, engaging in organized criminal activity with various predicate offenses.


Excessive and Unreasonable Bail


While many of the 177 people arrested and placed under excessive bail were indeed members of the rival outlaw biker clubs, there were a number of these individuals who had nothing to do with a biker club. That was an insignificant matter from DA Reyna’s political perspective. He had a law-and-order gold mine before him—and he intended to extract as much political mileage as he could from it.


Local judges had to send out emergency calls to a half dozen surrounding counties trying to find enough qualified attorneys to represent those faced with the serious first-degree felonies Reyna had brought against them.


During the ensuing six months after the Twin Peaks shooting, scores of federal civil rights lawsuits were filed by individuals wrongfully arrested and detained in connection with the violent melee.


Criminal Justice Crisis


Defense attorneys immediately filed motions for bail reduction hearings and motions trying to have gag orders lifted that had been imposed by local judges. It quickly became evident that the McLennan County legal system—not to mention the staggering costs for the incarceration, prosecution and defense of the 177 defendants the county was incurring—was faced with a growing criminal justice crisis.


Rather than address the crisis, DA Reyna fueled it with his heavy-handed treatment of the accused. This prompted defense attorneys to undertake the arduous legal task of trying to have all the local judges, Reyna, and his office disqualified from either trying or prosecuting the case. Houston visiting Judge Don Shaver rebuffed these disqualification efforts.


Waco PD Detective Presides Over Grand Jury


In October 2015, local Judge Matt Johnson oversaw the empaneling of a grand jury to hear the 177 Twin Peaks cases. The problem with this process was that a former 34-year veteran of the Waco Police Department—a detective named James Head—was selected to preside over the grand jury proceedings.


DA Reyna did nothing to resolve this obvious conflict of interest.


Less than two weeks later the Texas Attorney General’s Office ruled that Reyna had violated the Texas Public Information Act by not disclosing text messages he had sent and received on the day of the Twin Peaks shooting while he was on the scene, actively taking part in the police investigation then under way. Two more attorney general rulings and complaints from defense attorneys ultimately pried this information out of Reyna.


The James Head grand jury was disbanded and a new grand jury empaneled in November 2015.  Roughly 150 indictments were returned in connection with the May 17 shootings. A February 29, 2016 trial date was set for the defendants.


Speedy Trials Requested


Attorneys for the defendants had already begun pushing for speedy trials for their clients. Reyna resisted these efforts. Local judges had denied the motions, and their decisions were upheld by an area court of appeals that refused to get involved in this pretrial issue.


Hiding behind the Michael Morton Act—which requires the State of disclose all information, good or bad, to the defense—the district attorney said it would take a year to examine all the evidence to determine what was subject to disclosure.


Reyna had also taken the extraordinary step of telling defense attorneys that before he turned over any evidence to them, the attorneys would have to sign nondisclosure forms—an unnecessarily hostile request by the DA given that the discovery act limits disclosure in its very terms.


Defense Attorneys Move to Disqualify DA


These stalling, heavy-handed tactics prompted attorneys to file additional motions to have the district attorney and his staff disqualified from handling the case. One attorney, Abigail Anastasio, based her motion on the fact that Reyna would be called as a witness because he had not only inserted himself into the police investigation at the scene but had assumed control of it in many respects.  In effect, the district attorney had made himself a witness in his own investigation.


In March 2016, 48 new indictments were returned in the case—one of the victims had been killed in a motorcycle accident after he collided with a deer on a Nebraska highway, causing confusion as to number of people killed in the 2015 melee.


The following month in another bizarre twist in this tragic case, a former McLennan County sheriff’s deputy named Jennifer Gufaston was arrested and charged with a third-degree felony for having provided gang members with police information two months prior to the Twin Peaks shootout.


First Trial Begins


The criminal trial against Jacob Carrizal, the first defendant to stand trial of the 154 bikers indicted in the Twin Peaks shootout began on October 11th and is now entering its fourth week.  DA Renya has argued that the dispute between the rival clubs began when the Cossacks refused to show respect for the Bandidos and failed to ask for permission to exist as a criminal bike gang in Texas.  The final straw, according to Renya was the wearing of the Texas rocker, the badge used to indicate a club’s territory, without consent from the Bandidos.


Houston criminal defense lawyer Casie Gotro began the defense case by stating that while the Bandidos might have been a criminal bike gang in decades past, the Dallas based chapter led by Carrizal is not.  Gotro has maintained for months that the DA’s office has violated discovery rules and has not turned over discoverable material as required by law.  The case was stalled by recent revelations that the DA failed to disclose recorded statements to the defense, forcing the court to grant a brief continuance.  During the break, the Texas Department of Public Safety disclosed that it also has materials that have not been disclosed to the defense, including reports generated by the Texas Rangers during its investigation of the 2015 shootout.  These violations will raise additional questions about the prosecutions willingness to adhere to discovery rules and the special ethical duties of all prosecutors.  Gotro has said the DA’s behavior is criminal.


DA Reyna Disqualifies Self from Case


On October 26, 2017, Reyna voluntarily disqualified himself from the next case set for trial against Matthew Clendennen, who’s lawyer has doggedly fought for the DA’s recusal from the case. This decision was probably influenced by the fact that a federal district judge (Sam Parks) overseeing the multiple civil rights lawsuits said during the discovery process in these cases that the district attorney likely had a conflict of interest in the prosecution of the Twin Peaks case. When a federal judge discerns a conflict, it is best to step away from the case as Reyna did, taking his entire office out of the prosecution equation.


Reyna should have made this decision a long time ago. Clendennen’s defense attorney (Clint Broden of Dallas) has insinuated that the district attorney only disqualified himself because he is under FBI investigation for his handling of the case.


Defiant, Reyna has vehemently denied that either he or anyone else in this office had engaged in any kind of “politically motivated prosecution,” and that no one connected with the district attorney’s office knew anything about a federal investigation.


Judge Recused Self from Case


Reyna disqualification decision came three weeks after trial Judge Matt Johnson recused himself from hearing the Clendennen case. The judge made his decision after attorney Broden called his attention to the fact that the judge had once been law partners with Reyna. Texas law prohibits a judge from trying case if he was a law partner with the prosecutor and the prosecutor is a material witness in a case before the judge. Broden had already subpoenaed Reyna as a material witness.


After Judge Johnson stepped aside, Senior Judge Doug Shaver, from Harris County was appointed to hear the case.  Judge Shaver has now appointed three Houston lawyers, Brian Benken, Feroz Merchant and Brian Roberts, as special prosecutors on the case against Matthew Clendennen.  These lawyers have vast and varied experienced in criminal law and will bring a fresh perspective that is sorely needed in this case that has roared off the tracks.


Special Prosecutors Have Hands Full


The Twin Peaks case involves thousands of pieces of evidence, documents, photos and numerous videos that a new prosecutor will have to digest. There remains154 defendants indicted in the case. The new special prosecutors will have to assemble new assistants, paralegals, investigators, and clerical staff to prepare for the presentation of these cases to local juries. This prosecutorial undertaking will be daunting.  Especially if they start from scratch, ignoring the investigative findings and legal conclusions of their predecessor, which under current circumstances, would be advisable.


It seems unreasonable and an apparent abuse of prosecutorial authority to have cast such a wide net, arresting and indicting individuals many of whom had nothing to do with the shootings, and then holding them on what amounted to a no bond.  We can only hope that cooler heads, with no dog in this fight, will prevail and that most of the cases be dismissed.