WACO, Texas (KWTX) The total cost of the May 2015 Twin Peaks shootout has run into the solid seven figures and the state, at least so far, has little to show for its effort, all the while realizing the final cost is not yet calculated for the defendants and in some cases may never be.
McLennan County reports $1,317,835.96 in total identifiable costs related to Twin Peaks.
Francis Bartlett, CPA, first assistant county auditor in McLennan County, said the county has received $914,058.07 in the form of grant reimbursements from various sources, leaving a net cost to date of $403,777.89.
That figure does not account for costs incurred by the City of Waco, any other ancillary agencies that responded or any costs reported by state or federal agencies.
Although because so many cases have now gone by the wayside, the original estimate of cost to conclusion is less than was initially anticipated.
Just 24 cases remain and most notable among them, the re-trial of Jacob Carrizal, whose first trial in November 2017 ended in a mistrial.
More than 130 lawsuits are pending against local officials
Shots rang out on May 17, 2015 outside the Twin Peaks Restaurant, at Interstate 35 and Loop 340 as motorcycle riders gathered there for what was supposed to be a meeting on legislative issues.
Within seconds nine bikers were dead, more than 20 were injured and shortly thereafter 177 were under arrest, each charged with engaging in organized criminal activity and each held in lieu of a $1 million bond.
The arrest affidavits, all 177 of them, were word-for-word the same and none included mention of probable cause in individual cases.
Challenges from lists of lawyers began piling up, citing violations of the Texas Code of Criminal Procedure on probable cause requirements and excessive bond.
As the cases began moving into the courtroom one-by-one, they began to fall apart one-by-one until ultimately of the original 177, only two dozen remained.
Those defendants left in the wake now are responding with the only recourse they have and at last count there were 133 federal lawsuits filed that name McLennan County, Waco police, the district attorney, the sheriff and his office, individual police officers and the chief and others and against them charge violations against the 4th and 14th Amendment Constitutional guarantees, plus a number of other civil rights violations.
Diego Obledo is one of the plaintiffs.
The gunfire erupted as Obledo, who was not dressed in gang colors and was not armed, got out of his father’s car along with several friends.
They hit the ground at once.
All the time Obledo and his friends, all from San Antonio, can clearly be seen on video from several angles avoiding the fight, not participating in it.
Afterwards Obledo and his friends went to police and were arrested.
Later, District Attorney Abel Reyna would say everyone was arrested and none were considered victims because “if they’re victims, they shouldn’t have any problem coming to law enforcement and cooperating … and, at least in the first round of interviews, we ain’t getting that.”
In Obledo’s lawsuit, his attorney says his client “was completely cooperative during interviews and voluntarily submitted to questioning and requests for forensics (volunteering DNA samples and gunshot residue testing) from law enforcement.”
“He heard others at the convention center being asked for DNA and other samples and he offered his, but the officer he was talking to said he didn’t need it because Obledo had been too far away from the mayhem,” his lawyer said.
“Defendant Reyna knew of these facts at the time he made the above described public statement,” the lawsuit complaint says.
Neither Reyna nor any other person or agency mentioned in Obledo’s lawsuit, has filed a substantive answer to Obledo’s claims.
Reyna has not returned phone calls for comment.
By the time Obledo’s criminal case was dismissed almost three years later, he’d lost his stable job at USAA because of his arrest, his reputation was subject to question and still had six kids to feed.
Dallas attorney F. Clinton Broden filed Obledo’s lawsuit and in it he charges his client was known by law enforcement from the very beginning to be not guilty of the charge but law officers railroaded him anyway at Reyna’s direction.
Obledo is one of probably 30 to 40 defendants who suffered the same kind of personal loss as a result of being arrested for nothing, a group of Twin Peaks defense lawyers say.
And the lawyers say they all lost something.
“It’s an unbelievable result and all kinds of people are going to pay for that,” Russ Hunt, longtime Waco attorney and among the deans of the defense bar in McLennan County, said.
Neither Hunt nor anyone associated with his firm took any Twin Peaks cases, but they’ve all watched carefully as the issue unfolded in the courtroom.
“Some (defendants) lost their families or their jobs and their reputations, each as an individual case, but I think there were a lot like that.”
“It’s ridiculous, just ridiculous,” Waco criminal defense lawyer Rod Goble said.
On the other hand, Goble said, he’s not surprised that the grand jury issued the indictments.
“Grand juries work for the district attorney and they do what they’re told to do,” Goble said.
“I had lots of grand juries when I worked in the DA’s office and I never had one do something I didn’t want them to do,” Goble said.
Goble said the bottom line is: “It’s awfully hard to successfully sue the government.”
For one thing, law holds a district attorney to be insulated from lawsuits, but pending complaints filed in federal court take that into account, pointing out that Reyna abrogated his immunity when he went to the scene and took charge of the investigation.
“I think his (Reyna’s) first impulse was what it should have been, to tell the people of McLennan County that they were safe and the situation was under control, as well as to convey to any element that might be out there that McLennan County would respond to threats,” Hunt said.
But at some point, Reyna’s purpose and focus changed.
“I don’t know what he was doing,” Hunt said, “but he didn’t think it through.
Federal lawsuits could drag on for years
A Waco attorney who spent years in the federal courthouse when now retired U.S. District Judge Walter S. Smith was on the Waco bench said plaintiffs had better not get in a hurry.
“It could take years, at least two or three years after they filed to get into the courtroom,” Dan MacLemore, a staff attorney at Fulbright and Winiford, said.
Smith retired in September 2016 after 32 years on the federal bench.
The federal civil process is a slow and complicated process anyway, and until this week, that was especially true in the Waco courtroom, because the vacancy left by Smith’s resignation wasn’t filled for two years.
On Tuesday, Alan Albright, 58, was sworn in to replace Smith.
Albright was an intellectual property litigation specialist at Austin’s Bracewell law firm who served as a U.S. magistrate judge in Austin from 1992 to 1999 and formerly taught at the University of Texas Law School, where he was a member of the Texas Law Review and received his law degree in 1984.
He was only the second judge appointed to the Waco bench since it was created by then-President Ronald Reagan on September 11, 1984.
Trials of remaining bikers on hold until next year
The retrial of Christopher Carrizal, whose first trial ended in mistrial in November 2017, was originally set for Sept. 10, but both he and the state have asked the judge to postpone the date.
Prosecutor Robert Moody told the judge he needs more time to prepare for trial and, he said, the state still is waiting on evidence that U.S. Attorneys have agreed to share with them that was used in federal court in San Antonio recently that resulted in the conviction of two national Bandidos leaders that both sides in Waco want to see.
The federal attorneys have said the evidence can be both inculpatory and exculpatory.
On Aug. 31, a Waco district judge postponed the trial of the second Twin Peaks defendant, which was originally set to begin Sept. 10, until next year.
That means the newly-elected district attorney, Barry Johnson, will see all of the remaining Twin Peaks cases to conclusion, and Reyna, in the end, will be left without a single conviction when he leaves office.
Judge Ralph Strother, in 19th District Court, after a lengthy telephone conference, told both defense and state prosecutors he’d move trial for Tom Modesto Mendez until a date after the first of the year.
The action came a day after Strother refused to suppress an indictment on a motion brought by Jaime Peña in the case of Tom Modesto Mendez and ordered the case to trial.
A cloud still hangs over dozen of bikers, despite dismissals
Matthew Allen Clendennen, of Hewitt, had his Twin Peaks case dismissed after a special prosecutor, who was appointed after Reyna backed out, appeared in 54th District Court and said probable cause did not exist for his defendant’s arrest in the first place.
The judge dismissed the case “with prejudice”, which means that case cannot be refiled and Clendennen can file for expunction, or clearing, of his record.
But all the other 130-or-so cases Reyna’s office dismissed were dismissed “without prejudice,” which means any or all of them can be refiled and the defendant does not have the right to an expunction.
That could depend, says longtime Waco criminal defense attorney Stan Schwieger, on when the statute of limitations tolls on the original charge.
In this case, however, the charge is engaging in organized criminal activity with the underlying felony of capital murder, murder or aggravated assault, and “there is no statue on capital murder or murder,” Schwieger said, so the record won’t go away – ever.
“For the rest of their lives if someone runs their criminal case history it will show an arrest and indictment related to the Twin Peaks case,” Gately said.
For the last of the original defendants, more is to come.
A McLennan County Grand Jury returned 24 indictments on May 9 that charge crimes ranging from tampering with physical evidence to murder, included among them Ray Allen, Jeffrey Battey and Glenn Allen Walker, all charged with murder and riot, both first-degree felonies.
Others named included: Also named in indictments charging riot Wednesday were Mitchell Bradford (two counts); Aaron Carpenter (two counts); Richard Cantu; Nathan Champeau (two counts); William Flowers (two counts); John Guerrero; Richard Lockhart; David Martinez; Wesley McAlister (two counts).
Others named included: Tom Mendez; Marshall Mitchell; Jerry Pierson; Marcus Pilkington; Jacob Reese (two counts); Owen Lee Reeves (two counts/habitual); Timothy Shayne Satterwhite (two counts/enhanced/plus unlawful possession of a firearm by a felon); Kyle Smith (two counts plus tampering with evidence), and Reginald Weathers.
Also, Jeremy King, whose original engaging in organized criminal activity indictment was dismissed on Feb. 28, was indicted for unlawful possession of a firearm by a felon (enhanced).
Lastly, Roy James Covey was indicted for tampering with or fabricating physical evidence, and Richard Luther, was indicted for tampering with physical evidence, grand jury documents showed.
Interestingly, in an Associated Press article by Emily Schmall published recently, the author raises a question about how the victim in the incident actually died.
“Walker is accused of fatally shooting Richard Kirschner, a Cossacks member,” the AP article reads.
“An autopsy report shows Kirschner was shot three times: once in the buttocks with a pistol and twice with a rifle in the right thigh and left knee.
“Kirschner’s rifle wounds were traced to a Waco SWAT officer’s .223-caliber rifle during a forensic firearms analysis conducted for police, according to police records previously reviewed by the AP,” the story read.
“Autopsy and ballistics reports indicate that at least four of the deaths were the direct result of shots by law enforcement,” the lawsuit complaint points out.
“Rather than investigating the incident and relying on actual facts to establish probable cause, defendants theorized that a conspiracy of epic proportion between dozens of people had taken place, and willfully ignored the total absence of facts to support their ‘theory,’” the complaint says.
Prosecutors won no accolades, but defense attorneys did
Accolades so far haven’t come for the state when it comes to Twin Peaks legal issues, but the defense statewide is crowing about what the defense bar thinks was an inappropriate response to the incident in the first place.
Two defense lawyers, among the most outspoken of the Twin Peaks defense attorneys on probable cause issues, F. Clinton Broden of Dallas and Casie L. Gotro, of Houston were honored in June by the Texas Criminal Defense Lawyers Association as the co-Percy Foreman Lawyers of the Year for their zealous defense of their Twin Peaks clients.
Broden, who defended Hewitt resident Matthew Alan Clendennen, and Gotro, who represented Christopher Jacob Carrizal, then president of the Dallas chapter of the Bandidos motorcycle group, were selected based on their outstanding legal representation in the Twin Peaks case, the organization said.
Curiously Gotro hasn’t been eligible to practice law in the state since Sept, 1, the State Bar of Texas confirms, because her dues, which were due on June 1, have not been paid.
Gotro was scheduled to defend a Bandido whose trial begins later this year in Tarrant County, but has been removed from the case, officials confirmed.
Reyna so far has refused to return telephone calls.
In the end the Twin Peaks account still is tolling for the county and the county’s taxpayers, and for the defendants, both those who still have active cases and those who had their cases dismissed, and then there’s the lawsuits in federal court.
“That, if they go to trial, will be expensive for everyone, the clients, the lawyers and the government,” MacLemore said, “even if there’s no award.”