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DA says he, his team agonized over decision to dismiss Twin Peaks cases Ballistics reports show Smith was not one of the four bikers killed by Waco police officers

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While Jeff Battey may know who shot him in the arm almost four years ago outside the Twin Peaks restaurant in Waco, McLennan County prosecutors dismissed charges against the remaining 24 biker defendants because they could not gain the same level of certainty to build murder cases.


McLennan County District Attorney Barry Johnson, who announced his decision to dismiss charges Tuesday, said Wednesday he and his staff agonized since he took office in January over how to proceed with the Twin Peaks cases. Johnson and his top assistants, Tom Needham and Nelson Barnes, were not sold on the rioting charges already filed, could not find sufficient evidence to make murder cases and realized that any other potential charges, such as aggravated assault, were barred by statutes of limitations.


“We have watched those tapes a jillion times, and it is like an ant bed with ants running wild out there,” Johnson said. “It is impossible to tell what is going on, who shot who, who got shot, and there is nothing to tell us definitely who fired the shots that hit the guys who were killed.”

Johnson spent much of his day Wednesday answering media questions about his decision to abandon the Twin Peaks cases. He said it was not an easy call but he believes it was in the best interest of justice and will benefit McLennan County taxpayers in the long-run.


He said his office has the option of filing murder charges in the future if more evidence becomes available.


“It’s likely going to take somebody going into a bar, having a few drinks and popping off to some folks that he pulled a gun on an old boy and shot that Cossack, or that Bandido, or whatever,” Johnson said. “But just generally, that is all we’ve got left as far as making a murder case.”



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‘Tough psychologically’

For Battey, a Bandido and former Marine who works in maintenance at a Syracuse Sausage plant in Ponder, Johnson’s announcement was welcome news, according to his attorney, Seth Sutton.


“This whole ordeal destroyed him for a long time,” Sutton said. “The thing about these motorcycle clubs, they are like family to each other. Birthdays, holidays, anniversaries, they are all spent with the club. They are very close. If somebody has a birthday, it is going to be spent with the club. After they all were arrested, they were all told you can’t hang out with your best friends. That’s a tough pill to swallow.


“It’s tough psychologically, and everybody was treating these guys like one-dimensional monsters with no feelings. Jeff fought for our freedom, he had a clean slate for a record and now he has lost all his friends and was separated from everybody. It’s hard to make new friends when they Google your name and it pops up that people are calling you a murderer,” Sutton said. “It is a recipe for emotional pain and depression.”

The man who shot Battey was one of the nine bikers who died in the shootout, Sutton said.


Battey and fellow Bandido Ray Allen were parking their motorcycles behind Twin Peaks when the shooting started, he said. Three bikers from the rival Cossacks or one of their support groups came running around the corner of the building, and one, Matthew Mark Smith, of Keller, started firing, Sutton said.

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Smith first fired two shots at Allen but missed, Sutton said. He next fired at Battey, who raised his arm as a shield and was shot in the forearm, he said. The bullet remains lodged in his arm. Smith then fired at bikers who were trying to leave the parking lot in the back of a truck, Sutton said. Smith was killed by return fire, he said.


Ballistics reports show Smith was not one of the four bikers killed by Waco police officers, who were stationed on an adjoining parking lot and fired on bikers they felt were threats to them or others.


“This guy is shooting like a wild man and he draws fire from a lot of different people,” Sutton said, declining to say if Battey was one of those firing back. “Exactly who dropped him, we aren’t sure, but that is a classic case of self-defense. It doesn’t get any more clear than that. If somebody is trying to harm you, you are justified in using like force in defending yourself.


“Several Cossacks ran around the building and none of the other ones were firing at anybody, and therefore, no one else fired at those guys. There were three of them, and two of them are still alive today.”

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5 deaths: nothing conclusive

Unfortunately for prosecutors, there is no conclusive video or ballistics evidence to prove who killed the other five bikers, including Smith, Johnson said.


Sutton said he agrees with Johnson’s decision to dismiss the cases and seconds the district attorney’s comment to the Tribune-Herald on Tuesday that the problems started when former District Attorney Abel Reyna took over directing the investigation after the shootout.


“I guess there are two questions,” Sutton said. “Did Barry make the right call globally on the whole thing? Yes. Did he make the right call for Jeff and Ray Allen? Absolutely. It was very simple. They were just arriving. If you are accused of shooting somebody who fired at you first, you are absolutely within your rights to do that. They were only getting pushback because they drive motorcycles, wear vests and have beards.

“But Barry was right when he said Abel should have looked at people individually and should have picked out individual actions instead of trying to charge everyone with a global offense. The decision to do that was the death knell.”

Retrying Carrizal

Johnson said his team “strongly considered” retrying Jacob Carrizal, then-vice president of the Bandidos Dallas chapter, on rioting charges after reviewing evidence, including wiretaps, that federal officials used in San Antonio to convict the Bandidos national president and vice president on a variety of charges.


“We made the decision that, by all accounts, Carrizal was an excellent defense witness, and we have already spent more than a million dollars and six weeks trying him the first time and there was not enough new evidence to justify us putting the county through a long, drawn-out, expensive ordeal when they had already cut the head off the snake down there in San Antonio. They got convictions and long-term prison terms for those national leaders. That is the justice in the deal. Carrizal was just a vice president in the Dallas chapter. He was small potatoes compared to those guys in San Antonio.”


Carrizal was the only one of 155 bikers indicted on identical organized crime charges to stand trial. It ended in a mistrial after the jury deadlocked, with the majority favoring acquittal. Reyna dismissed all but 24 of the cases after Johnson defeated him in the March 2018 Republican primary.

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While the remaining 24 criminal cases will be dismissed, more than 130 of the almost 200 bikers arrested on May 17, 2015, have civil rights lawsuits pending against McLennan County, the city of Waco and a host of current and former officials, including Reyna.

The city and county have motions pending asking U.S. District Judge Alan Albright to dismiss the lawsuits filed by people who were never indicted in the Twin Peaks case. Dallas attorney Don Tittle, who represents about 120 of the bikers in the civil suits, said he has filed an answer to their motions and anticipates similar motions to dismiss will be filed in the cases involving the remaining bikers.


“The defendants all have filed motions to dismiss, arguing we haven’t stated a plausible claim for which we should be allowed to move forward,” Tittle said. “l believe the whole idea that there was this mass conspiracy has pretty much been debunked by now by everyone who has looked at it with any level of independence.


“You would think with the biggest law enforcement fiasco in history we would surely have a basis to move forward with lawsuits. It is surprising to me that the county and the city are trumpeting the same rival gang turf war theme that failed so miserably in the criminal cases. I suspect it will have the same level of success in the civil cases.”

Source: Waco Tribune




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