AUSTIN — A federal judge questioned Thursday if McLennan County District Attorney Abel Reyna intends to try any of the 155 bikers indicted in the 2015 Twin Peaks shootout, before extending a stay until March that the judge imposed last year on the bikers’ civil rights lawsuits.
U.S. District Judge Sam Sparks, of Austin, conducted a status conference Thursday in the civil cases filed by more than 100 bikers arrested after the Twin Peaks skirmish in Waco that left nine dead and 20 wounded.
Sparks ruled last year that the civil rights cases could not move forward before the criminal cases are disposed of in McLennan County. However, in a later ruling, he said he might reconsider after Sept. 1 on the stay for the civil cases involving bikers arrested but not indicted.
“I called this hearing so you can complain, grouse, holler and shout, but I was hoping you could give me your ideas of how to move these cases forward. . . . I am sitting here with little to no knowledge about how to proceed because it appears the district attorney up there won’t take any of these cases to trial,” Sparks told the attorneys.
Dallas attorney Thomas Brandt, who represents Reyna and McLennan County in the civil lawsuits, told the judge that Christopher Jacob Carrizal, a Bandido, is set for trial in Waco’s 19th State District Court on Sept. 11, adding that Reyna “has every intention of moving forward with that case.”
Sparks said trial dates have been set in the past and postponed and asked if each biker is named in an individual indictment to be tried one at a time. Brandt said each biker is named in an indictment.
Don Tittle, a Dallas attorney who represents about 100 of the civil plaintiffs, including about 25 who are not indicted, argued that the civil cases against the unindicted bikers can proceed without fear of the state revealing critical evidence because Reyna, former Waco Police Chief Brent Stroman and other officers have testified in detail at previous hearings in the criminal cases about what went into the decision to arrest the bikers en masse after the shootout.
Also, the DA’s office has turned over massive amounts of records, photos, videos and other evidence from the gun battle, so a significant amount of their evidence is already out, at least among the defense attorneys, Tittle said.
“Some of the defendants have already testified in great detail in open court,” he said. “Their claims that the release of vital information will be harmful should be measured against the millions of pages of documents released, the photos, the videos and their behind-the-scenes testimony. That testimony has been given, and that evidence has been turned over.”
The judge said that by setting an arbitrary stay date until Sept. 1, he was hoping that a few criminal cases would be tried by then.
“I don’t know why it has taken them more than two years to try a case,” Sparks said. “There are reasons why some cases can take up to two years, but I don’t know why they haven’t been able to try at least one case within two years.”
Brandt said that besides the 155 indicted in Waco, there are criminal cases against Bandidos ongoing in Fort Worth and San Antonio and other civil cases against the Twin Peaks corporation and the former Waco Twin Peaks franchisee moving forward with depositions in Dallas.
The criminal cases in Waco have been held up because the U.S. Attorney in San Antonio revealed that the Bandidos investigation there contains information that could prove relevant to the Waco cases, Brandt said. But, the federal prosecutor has said he won’t turn over the materials to Reyna until after the federal trial, which is set for February.
Reyna has said his office has a duty to wait to see the federal evidence so he can provide it to defense attorneys under the Michael Morton Act and federal Brady laws requiring prosecutors do disclose evidence to the defense.
“So it’s not as if we are sitting around twiddling our thumbs and not moving with haste toward a prosecution, but there are matters beyond our control,” Brandt said.
Brandt agreed with the judge that the cases should be stayed at least until March 2018 to give the federal trial a chance to play out and perhaps a few trials in Waco to be held.
But, Tittle countered that his clients are not associated with those other cases or alleged criminal organizations. He said they are all individuals who continue to be affected by delays and who deserve their days in court.
‘Witnesses at best’
“My clients are all witnesses at best to a criminal event,” Tittle said.
Sparks said if he did order the civil cases to proceed before the criminal trials, the defendants would appeal the order to the 5th U.S. Circuit Court of Appeals. He said it would add further delays to the case, and his decision likely would be reversed.
“The law is very strong on this in the 5th Circuit,” Sparks said. “It would do no good to come down with a judicial wild hair because it is going to get appealed. . . . I will not enter the criminal proceeding, period.”
Tittle said after the hearing that he is disappointed that at least some of his clients won’t be able to move forward with their civil rights cases.
“I understand the judge’s reasoning, but to someone who was just arrested for nothing other than being in the wrong place at the wrong time, it’s tough to explain why, two and a half years later, they can’t have their day in court and they remain under the cloud of an imaginary investigation,” Tittle said.
At a hearing last year, Sparks made several references that seemed to question whether Reyna, as a defendant in the civil cases, has a financial interest at stake and should be disqualified from prosecuting criminal cases against the bikers.
Besides Reyna, the civil lawsuits name former Waco Police Chief Brent Stroman, Waco Detective Manuel Chavez, the city of Waco, McLennan County, Waco police officials Robert Lanning, Jeffrey Rogers and Patrick Swanton and Department of Public Safety officials Steven Schwartz and Christopher Frost.
The individual defendants did not attend Thursday’s hearing in Austin.