Criminal defense attorney Paul Looney was in his law office in Hempstead when a fellow lawyer called last week to see if he could confirm a rumor.
Word was, the new district attorney in Waco had dismissed all the last remaining charges stemming from a 2015 motorcycle gang firefight at a Twin Peaks restaurant in Waco that left nine dead and 20 wounded in May 2015. Looney, who represented six of the 177 people arrested, quickly confirmed the rumor.
“I just started crying; it was a very emotional day,” said Looney, a veteran barrister who also has an office in Houston. “It wasn’t tears of joy, it was just an emotional release. I was carrying this responsibility for four years. I was afraid I had missed something and somebody was going to be convicted for a crime they didn’t commit.”
Looney had enlisted a cadre of criminal defense attorneys from Houston, and across the state, who donated their legal skills to help defend the bikers in a troubled prosecution that quickly became one of the most egregious examples of justice-gone-awry in decades.
Last week’s dismissal of misdemeanor riot charges against 24 remaining gang members marked the end of the massive criminal prosecution, without a single conviction. The only case to go to trial ended in a mistrial, and charges were dismissed.
Many questions remain, however. Although few public details of the shootings have been released, a law enforcement source close to the investigation told the Houston Chronicle that ballistic testing showed that four of the bikers killed were hit with police bullets, four died after being shot with firearms carried by gang members, and one body had bullets from both law enforcement and civilians.
Waco police said they seized 151 firearms in the Twin Peaks parking lot and vehicles, along with knives, chains, clubs, stun guns and a tomahawk. Police have said that three of their officers fired 12 rounds from assault rifles, and one officer said in court he shot four who were aiming guns at other bikers or police.
150 CASES DISMISSED: Three years after deadly biker shootout in Waco, criminal cases unraveling
Ken Magidson, the U.S. Attorney in Houston from 2011 to 2017, expressed concern over the spectacle of 155 indictments returned after the shooting followed by dismissals of remaining cases under a new district attorney.
“From what’s been reported, it appears there was not sufficient investigation prior to indictment to ensure cases could be brought where you could prove a defendant’s guilt beyond a reasonable doubt,” said Magidson, who prosecuted drug and weapons cases involving members of the Bandidos Motorcycle Club in the 1980s.
“Why didn’t you take more time to investigate before you indicted them?” he asked. “Doesn’t it have a ring of a rush-to-judgment?”
Several calls to the Waco police department for comment were not returned.
Fierce firefight erupts at Waco restaurant
The first — and only — person to go to trial was Jacob Carrizal, president of the Dallas chapter of the Bandidos who led a contingent to Twin Peaks on May 17, 2015, where they encountered rivals from the Cossacks Motorcycle Club.
Some of the bikers thought they were arriving for an information session on motorcycle legislation, but law enforcement had gotten tips that the two motorcycle gangs might try to settle a long-simmering dispute over each gang’s use of the word “Texas” on their leather jackets and vests. Nearly 300 bikers arrived at the restaurant as dozens of local, state and federal officers waited nearby.
A physical altercation in the parking lot quickly devolved into a fierce firefight as officers poured onto the scene. In the end, the dead included seven Cossacks, one Bandido and another who was not affiliated with any group.
Houston lawyer Casie Gotro defended Carrizal, and the trial ended with a hung jury in November 2017. No other case went to trial. McLennan County District Attorney Abelino “Abel” Reyna — who oversaw the mass indictments — lost his re-election bid in the March 2018 Republican primary.
Before he left office, Reyna dismissed most of the original cases but re-indicted 24 club members on misdemeanor riot charges.
Last week, new District Attorney Barry Johnson issued a statement explaining his dismissals of the remaining misdemeanor charges, and characterized the Reyna’s legal strategy as “an ill-conceived path.”
After a county grand jury indicted 155 persons on charges of engaging in criminal activity, Johnson said previous prosecutors should have assessed the evidence and brought individual charges against a number of gang members where the evidence warranted.
“Had this action been taken in a timely manner, it would have, and should have, resulted in numerous convictions and prison sentences against many of those who participated in the Twin Peaks brawl,” said Johnson, who took office in January. By then, the statute of limitations had expired on many of the charges that could have been brought in the wake of the bloody confrontation, he said.
Reyna, who is now senior counsel with the Waco office of a Houston law firm, declined to discuss details of his Twin Peaks prosecution, citing a number of civil lawsuits brought against him, although he responded to the sharp criticism against him by Johnson.
“I absolutely disagree with the overall result as well as several statements and accusations within Mr. Johnson’s press release; however, it is solely his decision on how to proceed with any case in the District Attorney’s Office,” Reyna’s statement said. “I respect the fact that the voters of McLennan County chose Mr. Johnson to make these types of decisions.”
‘A tragic disaster’
The call for free legal help put out by Looney was answered by about 30 attorneys from across the state, including Tucker Graves of Conroe, Mark Thiessen and Wade Smith of Houston, Mark Metzger of Galveston and Abigail Anastacio, who became a Harris County district judge in January.
Another attorney in Houston who offered his legal services was Romy Kaplan, who represented a man he said attended the Waco meeting to have lunch with some friends. Kaplan noted that client George Rogers was in poor health and came to the Twin Peaks function carrying an oxygen tank, adding, “He didn’t come there looking for violence.”
The tactics used in the prosecution made Kaplan eager to help, adding that he couldn’t sit idly by and witness “one of the greatest prosecutorial blunders in American criminal jurisprudence history.”
Thiessen was recruited by Looney to help defend Marcus Pilkington, a Bandido’s club member from Mexia who was shot during the confrontation.
“This is a tragic disaster for the Waco police, for the district attorney, and all the people in Waco,” Thiessen said. “I hope the people in Waco can heal now that these people have been removed. So many people and businesses were affected in Waco.”
While in private practice, Anastacio defended Ray Nelson, president of the Hill County Cossacks, and attempted to get DA Reyna disqualified from prosecuting Twin Peaks cases because she claimed he exceeded his authority by taking charge of the criminal investigation and was therefore a potential witness.
Looney, who defended six of those arrested, blames Reyna’s prosecution and the Waco police for using tactics he said were intended to discourage local membership in motorcycle clubs.
“They were trying to address an issue that wasn’t before them, and using the criminal justice process to achieve a solution to a social problem,” Looneysaid. “They felt like local people were joining motorcycle gangs and dressing in clothing that was frightening to the public, so they took a tragedy at Twin Peaks and tried to used the criminal justice system to solve a cultural problem.”
Looney agrees there were criminal acts committed during the melee that warranted prosecution.
“If they had done their job, they probably wouldn’t have arrested more than three or four people, and those people probably would have been serving a life sentence,” he said.
‘Unjust and wrong’
Among those defended by Looney were William and Morgan English from Brenham, who were not members of either the Bandidos or the Cossacks motorcycle clubs. Due to intermittent rain, the couple arrived at Twin Peaks in the family sedan.
After their arrests, they spent 15 days in the county jail until Looney could convince a judge to lower their bail. Neither was ever charged.
Morgan English was shocked when she heard no convictions would result from the violent brawl, during which she and her husband lay on the ground outside the Twin Peaks restaurant as shots rang out all around them. She was one of four women arrested and placed in the general population of the county jail.
“It really shows that we have no rights,” she told the Chronicle last week. “It was unjust and wrong the way people were treated. I have no respect for Waco, and when I hear the word, I cringe.”
While she and her husband were jailed, the DA’s office sent her hometown newspaper a press release with their jail booking photos. Soon, the whole town knew and people were describing her as a “biker girl.”
The couple’s booking pictures still pop up when they Google their names, she said.
Sandra Guerra Thompson, criminal law professor at University of Houston law center, wonders if the sheer numbers involved in the fatal confrontation may have overwhelmed the resources in the Central Texas county.
“At the end of the day, it presented a major challenge to a small community where there was a melee and nine people were killed and 20 injured,” said Thompson, a former prosecutor. “It’s not easy to investigate and see who could be charged. It may have been something that was beyond their capacity to do well.”
‘This isn’t right’
The legal fight over the Waco debacle is far from over — at least 100 of those arrested after the shootout have filed civil actions against the county and law enforcement.
Looney and other defense attorneys are still working to have Waco authorities return property seized in the investigation, including weapons, motorcycles and cell phones. They have also discussed attempts to expunge the Waco charges from their client’s criminal records.
After the arrests, a local Justice of the Peace in Waco set bail at $1 million, making release from jail out of reach for many of those arrested.
“Whether it’s politicians in our state, the judges in that county or the citizens all over the state, nobody wanted to stand up and say, ‘This isn’t right,’ except for the criminal defense attorneys that all came in,” Looney said. “They had horrible consequences. Imagine going four years charged with a crime. Imagine being held on a million-dollar bond.”
Looney said the lesson of the Waco fiasco is one that is well known through human history.
“If you follow the law, you won’t have outrageous results because the law generally points toward justice,” he said. “In this case, the prosecution invented law, they lied about law, they tortured the law, and they thought they had an end that was justified by any means.
“And they destroyed any prosecutions they could have done.”