Politics

Waco Is Suppressing Evidence That Could Clear Innocent Bikers

The city is fighting to keep videos of the May shoot-out at the Twin Peaks restaurant out of the press, and still hasn’t confirmed how many victims were shot by police.

Conor Friedersdorf
Mike Stone / Reuters

Why is Waco, Texas, fighting to suppress multiple videos of the shoot-out that killed nine bikers at the Twin Peaks restaurant on May 17? Why are some attorneys in the case now prohibited from talking to the press? And why haven’t Waco officials revealed how many of the nine victims were killed by bullets from police officers’ guns?

These are the most pressing questions as 177 people await a grand jury’s decision about whether they will be indicted for murder, conspiracy, or on lesser charges after attending a regularly scheduled meeting of motorcycle enthusiasts that turned violent.

Attendees included members of violent-outlaw motorcycle gangs and innocuous clubs. Many members of both groups credibly claim that they had nothing to do with a fight at the meeting. An Associated Press review of surveillance footage not yet released to the public suggests that most present fled from the gunfire rather than participating in it. Over the last two months, motorcyclists swept up in the mass arrest following the carnage have lost jobs, been evicted from apartments, and even lost custody of children. And every day that authorities continue their opposition to sunlight in the case delays vindication for the innocents who’ve had their lives upended. The state loses little by dragging its feet while accused innocents pay dearly.

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Worrisome aspects of the case include:

  • Waco and its police department could be liable for millions of dollars in damages if litigants can prove that they arrested bikers without probable cause, violating their civil rights; or that Waco police shot and killed innocents. Yet the grand jury that will decide whether to indict the bikers is reportedly being led by a longtime detective in the Waco police department––an arrangement defended by a local judge, who declared, “If there is nothing that challenges his impartiality, he is qualified … Who is better qualified in criminal law than somebody who practices it all the time?”

  • When one of the arrested bikers, Matthew Clendennen, sued authorities, Waco’s assistant city attorney fought to prevent him from getting access to video footage taken at the Twin Peaks restaurant, key evidence in the incident. While a judge ultimately ruled that his attorney must be allowed to see the footage, he barred its release to the public and imposed a gag order in the case.

  • The gag order was requested by McLennan County District Attorney Abel Reyna, who is named in Clendennen’s federal civil-rights suit––and granted by District Court Judge Matt Johnson, Reyna’s former law partner, according to press reports.

  • Over two months have passed since the shooting. The dead bodies have long since been examined. Yet the public still hasn’t been told how many of the gunshot victims were struck by bullets fired from police weapons. (I strongly suspect that if the answer was “zero” Waco police would’ve said so a long time ago.)

Why is this information being suppressed?

After all, evidence that is embarrassing to the Waco Police Department or that exposes the city of Waco to civil liability will presumably be made public eventually.

Here are two theories.

One is the official explanation. Authorities say that this is a complex investigation that takes lots of time and that suppressing video evidence and issuing gag orders is necessary to prevent prospective jurors from being influenced by pre-trial publicity.

I find that explanation dubious.

Authorities in Waco have actively advanced a contested narrative of what happened at the Twin Peaks restaurant from the start, sometimes getting facts wrong. They haven’t tried to preserve the impartiality of jurors, instead, they've pushed a version of events that reflects well on the Waco police and the actions they’ve taken.

Here is an alternative explanation.

If there is video or ballistics evidence suggesting that lots of innocent people were arrested without probable cause, or that police bullets killed some of the dead that day in Waco, it will be a public-relations nightmare and a huge liability for Waco and its police department. Scores of bikers could sue for six- or seven-figure sums. And prosecutors might find it much more difficult to secure indictments in the case.

But if indictments can be filed before evidence inconvenient to Waco authorities is publicly revealed, the leverage changes. A biker might be indicted for conspiracy to murder, then offered a plea deal to accept a much lesser charge, like disturbing the peace, with the understanding that time served would take care of the sentence. That would be a tempting deal to take. And pleading guilty to disturbing the peace would preclude a lawsuit for being arrested without probable cause while saving police and prosecutors from looking like they harassed innocents.

That alternative explanation may not be correct, but it’s plausible enough to justify concern. And the change in leverage between prosecutors and criminal defendants applies whether or not it is motivating authorities.

A final question law enforcement should be forced to answer, as the many criminal and civil lawsuits likely to stem from this case are adjudicated, is how many undercover cops and informants, if any, were present at Twin Peaks that day, and what role, if any, they played in altercations between various motorcycle riders. (My confidence in the Waco Police Department’s performance was not enhanced by the news that one police officer reportedly present at the scene has since been put on leave for allegedly assaulting a Waco resident in an unrelated matter.)

Scores of likely innocents arrested, suppressed video, clear conflicts of interest in the courts, and the possibility that multiple shooting victims died at the hands of police––the aftermath of the Waco shoot-out ought to be a prominent part of the ongoing national conversation about a criminal-justice system that routinely victimizes innocents. And by the time the truth outs, perhaps that will come to pass.