“They have bitten off more than they can chew,” said Robert Draskovich, a Las Vegas criminal defense lawyer who represents bikers. “Prosecutors often overreach and charge too many people, but I’ve never seen it to this extent.”
To prove the current charges, which have capital murder as the underlying crime, prosecutors must show each defendant took part in the shootout. Although the law allows for broad interpretation of participation, experts say the case is muddled by Texas’ strong self-defense and gun rights, as well as issues with witness cooperation and credibility.
The McLennan County district attorney’s office won’t say how its 26 prosecutors plan to tackle the case, which could involve seeking the death penalty. But experts predicted they will divide the defendants into groups, offer plea deals to the less culpable suspects and try only the ones against whom they have the best evidence.
“When these things happen, you just have to rise to the occasion,” said Jack Choate, training director for the Texas District and County Attorneys Association and a former Walker County prosecutor. “It’s definitely doable, but it’s just going to take up a lot of court time and a lot of extra, over-and-above work.”
McLennan County District Attorney Abel Reyna also can enlist the help of prosecutors and investigators with the state attorney general’s office, other counties and the federal government, Choate said.
Reyna may have to just to keep pace. At least 75 of the suspects have requested a public defender, but there are only 29 lawyers in McLennan County approved to defend first-degree felonies for the indigent, according to the Waco Tribune-Herald.
State District Judge Matt Johnson told the newspaper that for the first time in his career, he has requested help from public defenders in nearby counties including Dallas, Bell, Williamson, Travis, Hill, Coryell, Limestone and Johnson.
‘This is war’
Gunfire erupted around noon last Sunday outside Twin Peaks, a Hooters-style restaurant in a bustling outdoor shopping center off Interstate 35. It marked a turning point in the long-simmering feud over turf, respect and power between two notorious Texas gangs, the Bandidos and the Cossacks.
Motorcycle gang experts say the Cossacks, the smaller group, refused to pay “dues” to the Bandidos, who are considered the dominant gang in Texas. The Cossacks recently started wearing vests with patches that read “Texas” across the bottom, which the Bandidos consider a threat to their statewide control.
With tensions already running high, police say the shooting may have begun in the parking lot with a dispute over a space, or someone’s foot being run over, or both. It quickly escalated into stabbings, beatings with chains and shots being fired by gang members and police.
When the shooting stopped, nine people — all gang members, police say — lay dead and 18 more were hospitalized with gunshot and stab wounds. It’s unclear how many, if any, were shot by police. Officials set bail for 174 taken into custody at $1 million each.
“This is probably the No. 1 most violent incident that’s happened in the history of outlaw motorcycle gangs in the United States,” said Richard Hundley, a Mexia police detective who has investigated biker gangs for 17 years. “This is war.”
Motorcycle gangs have bombed rival clubhouses in Australia and launched rockets in Canada. They have been linked to several slayings, including one in Fort Worth in December that police say was committed by three Bandidos. But until the Waco shootout, experts say, American biker gangs typically avoided publicly brazen violence.
Authorities say the groups make money through extortion, prostitution rings and the manufacture, transport and sale of drugs.
Because of biker gangs’ history of relatively low-level violence, Texas authorities in recent years have placed them on the “back burner” and focused more on border security and cartels, Hundley said. “It takes a lot of resources if you’re really going to investigate these guys — financially, wiretaps, undercover,” he said.
The last mass biker arrest in the U.S. occurred in 2002 in Las Vegas after a brawl broke out between the Hells Angels and the Mongols at Harrah’s Casino. Three people were killed and about a dozen others were wounded. Authorities rounded up 120 people. Only six of 44 Hells Angels indicted in federal court were convicted; six Mongols members were convicted in state court.
Draskovich represented one of the Hells Angels defendants whose charges were dismissed. He sees parallels between that case and the one in Waco.
“There’s generally a smaller group who, if a law was broken, they broke it,” he said. “So that’s why I say the majority of the people they arrested [in Waco] are going to walk.”
Writing on the vest
Arrest warrants for each of the Waco defendants spell out the basis for jailing them: They were arrested at the scene and were either wearing gang-affiliated clothing; were members of groups that had an “identifiable leadership” and regularly committed crimes; or both. The warrants named the Cossacks, the Bandidos and their associates as known criminal street gangs.
“When you’re wearing a vest with your group’s name on it, then it certainly helps prove that [gang] element of the offense,” said Coates, the former prosecutor.
But experts say proving someone was there and is a member of one of the groups is not enough to convict. There must also be evidence that the defendant took part in the underlying crime, which police say in this case is capital murder.
Participation doesn’t need to involve pulling the trigger, Coates said. It could be anything as small as texting someone before the shooting about wanting to kill a rival, or holding someone’s gun. Under the state’s so-called law of parties, Coates said that basically “in Texas, if you’re in for a little bit, you’re in for the whole thing.”
But Seth Sutton, a Waco defense attorney who is representing one of the arrested bikers, told the Tribune-Herald that he just doesn’t see how prosecutors will make the mass charges stick.
“Anytime the police are arresting close to 200 people for engaging in an organized crime committing capital murder, what they’re saying is that they have probable cause that each and every one of these people committed capital murder,” he said. “Obviously, that’s absurd.”
Even local law enforcement officials acknowledge that it will be a “monumental task” for investigators to decipher what happened amid the chaos, said Waco police Sgt. W. Patrick Swanton. Surveillance video will help, but it is unclear whether footage was recorded of the parking lot, where most of the shooting seems to have occurred. Further complicating the investigation, Swanton said, is the fact that many of the gang members aren’t cooperating.
Proving the identities of the shooters will be tough, too, and jurors may have credibility issues with witnesses with criminal pasts or an ulterior motive for testifying against a rival gang, said Toby Shook, a criminal defense attorney and former Dallas County prosecutor.
The case will hinge on evidence that indicates a motive for the shooting and why the defendants were present at the scene, he said.
Several motorcycle enthusiasts argue that most of the arrestees had no plans for violence. They say they were at Twin Peaks that day for a scheduled meeting of the regional chapter of the “Confederation of Clubs and Independents,” or CoCI, about safety and legislative issues affecting bikers.
But Hundley, the Mexia detective who has gone undercover in biker gangs, said the Bandidos pressure smaller clubs to join the confederation and pay dues to it, which they use for their group. That’s why the Cossacks refused to join the confederation, he said.
“It’s organized crime at its finest,” Hundley said of the Bandidos. The CoCI is “a motorcycle activist group; however, it’s a fine line. It was made by the Bandidos for the Bandidos, and of course they give money to motorcycle rights to make everyone happy and then they’re lining their pockets with it, no doubt.”
Gun rights and self-defense laws also will come into play, several legal experts said.
“You’re going to have a huge fight over the facts and also a huge legal battle between the state and the defense over whether self-defense applies to these cases,” said Shook.
Authorities said they recovered at least 318 weapons from the restaurant, including some found hidden in a toilet and others tucked between tortilla chips and bags of flour.
Prosecutors will want to argue that possession of a weapon for all those arrested is illegal because they are members of known criminal street gangs. Shook said that could prove difficult to pin on those who are members of smaller clubs that may not be involved in criminal activity.
Also, he said, known gang members could still raise self-defense claims because they could say they were protecting their lives while being fired upon by an aggressor.
Shook said defense attorneys could also argue that Texas residents have a right to carry guns across county lines in their vehicles, which are considered an extension of their homes.
With all the various angles prosecutors must consider, combined with the defense arguments, Shook believes unraveling the case and getting convictions will be difficult.
“It’s going to get pretty complicated and sticky,” he said.