Thirty months after the Twin Peaks shootout and 16 days into the first biker trial, Judge Matt Johnson was forced to delay proceedings Wednesday with another late disclosure of evidence by the city of Waco.
Johnson apologized to the jury for putting the trial of Jacob Carrizal off until Monday morning, saying he knows court officials have already missed two predictions about how long the trial would last.
Carrizal’s attorney, Casie Gotro, was set to start presenting the defense’s case Wednesday morning. Prosecutors rested their case Tuesday morning after 15 days of testimony from 49 witnesses and the introduction of more than 1,200 pieces of evidence.
However, Johnson granted a defense motion to postpone the trial after Assistant City Attorney Judith Benton brought in three recordings the city had not turned over to the McLennan County District Attorney’s Office.
Carrizal, 35, president of the Dallas Bandidos chapter, is charged with directing the activities of a criminal street gang and two counts of engaging in organized criminal activity. He is the first of 154 bikers indicted in the May 2015 shootout to stand trial.
Gotro has said for months, even before the case was transferred from 19th State District Court to 54th State District Court, that she has not been given all the discovery evidence she is entitled to. Even since Carrizal’s trial started, the state at least twice has turned over evidence to her that she claims should have been given to her long ago.
Johnson, and before him, Judge Ralph Strother, ordered the state on numerous occasions to give the defense evidence the law requires it to. Johnson’s most recent order instructed the DA’s office and all agencies with evidence to go back and review previous disclosures and to turn over anything that to date has not been divulged.
The city claimed the withheld recordings were privileged materials because they contain information from confidential informants and the city wanted to protect their identities.
Johnson listened to the recordings in his chambers Tuesday morning and ordered the city to turn over the recordings or, in the alternative, the law required him to dismiss the case.
Benton told the court the city would waive the privilege claims.
Johnson granted Gotro’s request for a continuance so she could review the recordings. Gotro has not formally requested a mistrial but has mentioned it a couple of times.
While the jury won’t be coming back until Monday morning, the parties will return to court Thursday afternoon to videotape the testimony of two defense witnesses who will not be available to testify in person later.
Their testimonies will be played to the jury during the defense’s case.