The Sweeping Indictments in the Waco Biker Shootout

On Wednesday, a district attorney indicted 106 people in the May fight that killed nine people at a Texas breastaurant. Can he really convict them all?

Jerry Larson / AP

A district attorney in Waco, Texas, on Wednesday handed down a stunning 106 indictments in the case of a May 17 massacre at a breastaurant in town.

Nine people were killed and 18 injured in the shootout between two infamous biker gangs, the Cossacks and the Bandidos, at a Twin Peaks restaurant. The huge case, brought under an organized-crime law, offers an unusual look at how a little-understood, often secretive, and insular organization—one that occasionally uses violence—takes advantage of the tools at its disposal to achieve its goals.

I refer to the criminal-justice system, of course—though the case should reveal some things about biker gangs, too. The ensuing months will show whether police and prosecutors who have been criticized for their handling of the massacre can marshal evidence and laws to crack down on gangs famous for fierce loyalty and disregard for the law. In fact, the indictments seem calculated to strike directly at the code of silence among gang members.

Police arrested 177 people at the time of the shootout, which The Guardian saidcould potentially represent the largest mass arrest on a capital charge in American history.” On Wednesday, McLennan County District Attorney Abel Reyna announced on Facebook that a grand jury had handed down 106 indictments for “engaging in organized crime activity” related to the fight. Reyna promised to indict the remaining 71, too.

That’s an unusually large number of indictments, and the general consensus is that not all of the people who have been arrested and indicted were actually participants in the brawl. Prosecutors haven’t specifically indicated who they think did what in the fight, or who fired the shots that actually killed people. Instead, the dragnet seems intended to break the resistance of gang members, wielding the prospect of lengthy sentences—15 years to life—as a bludgeon to convince some of the individuals who have been indicted to flip and offer prosecutors what they need to convict others, in return for plea bargains.

“Overall, the reason they brought so many indictments is they’re going to try to get people to flip on each other,” said Melissa Hamilton, a visiting criminal-law scholar at the University of Houston Law Center. “Probably what they’ll do is they’ll offer whoever pleas first a better deal.”

What’s interesting about the case is the use of the organized-crime statute. Texas’s law is similar to the federal RICO law. Using it affords Abel a whole range of new possibilities.

“It’s very clever on the part of the prosecutor,” Hamilton said.

First, it could make it easier to convict defendants, because the threshold for the crime is low. The corruption statute stipulates a great deal of crimes—the list begins with “murder, capital murder, arson, aggravated robbery, robbery, burglary, theft” and goes on for quite a while—but defendants in this case could likely be put behind bars if prosecutors can just prove that they were members of a criminal gang (in this case, the Cossacks or Bandidos) and that there was an agreement to commit a crime. It doesn’t have to have been an express agreement—it might be enough just to show, for example, that members of the gangs arrived en masse, knowing their rivals would be there and carrying illegal firearms.

“Most of these people, I don’t think they have evidence that they actually committed anything,” said Sandra Guerra Thompson, who directs the Criminal Justice Institute at the UH Law Center. “For most of them, they’ll have to prove an agreement to commit some sort of crime.”

Statues like RICO are often criticized for this reason, Thompson said—they sweep in people who haven’t committed any readily recognizable offense.

“You don’t have to actually be the person who commits the crimes, but if you’re a member of this group and then someone in your group commits a crime, it says you conspired with them,” she said. “It’s not as concrete as ‘Joe intended to do this act.’ It’s more ‘Joe was a part of the group, and he sort of agreed that these other people would do things.’ That has a tendency to sweep to pretty broadly.”

A second feature of the organized-crime law—and one that might raise further concerns—is that by making the case about the alleged criminal gang, prosecutors open up the range of evidence that might otherwise be ruled inadmissible. In essence, it allows prosecutors to make a character-based case against the defendants, and it creates an exception that allows hearsay.

“You can introduce relatively peripheral testimony about what these people do in general,” said George Dix, a professor of criminal law at the University of Texas at Austin Law School. “That’s generally to the disadvantage of the defendant. It paints the defendant in an unfavorable light.”

Third, using a conspiracy charge broadens the outlines of the case geographically and temporally. Older offenses that are now outside the statute of limitations could suddenly became fair game once they’re lumped in with the conspiracy, Hamilton said. It could also tie into crimes that occurred in other states, which would involve the federal government and potentially gain local prosecutors some of the federal government’s investigative heft. Plus, it might introduce other gangs besides the Cossacks and the Bandidos into the investigation. That’s a double-positive for law enforcement, because it not only allows them to go after other groups, it also aids in trying to get witnesses to testify. They may be unwilling to testify against their own group, but if they can win themselves a lighter sentence by testifying against rival gangs, it may make them more likely to flip.

Finally, any crime that’s committed as part of an organized-crime group is one category higher of offense than it otherwise would be. That means prosecutors don’t have to go after defendants on multiple charges to get up to life in prison—they can just get a conviction as part of the conspiracy and be done with it. (The one exception would be if they have evidence to try someone for capital murder.)

Unsurprisingly, these tactics are not without controversy. My colleague Conor Friedersdorf has written several times over the last few months to express his misgivings about the way the case is being handled. Law enforcement has sought to suppress much evidence. It took months before word emerged that some of the bikers were struck by police bullets. And most of all, a gag order has prevented many of the participants from speaking.

Now, the huge round of indictments has raised some other questions. First, grand juries are notorious for approving pretty much any indictment put before them. “It seems very unlikely that the grand jury deliberately considered the evidence,” Dix said. “I’ve heard some defense lawyers do calculations on how much time the grand jury could have spent on each one, and it ain’t good.”

But because grand-jury processes are secret, it’s hard to know definitively anything about how the indictments were obtained. Setting aside the grand-jury process, the size of the case raises questions about how complete the investigation could be, in such a short time—six months—since the shootout.

Whether the prosecution produces credible evidence of significant involvement by each individual is a legitimate question, and whether the prosecution is overreaching here, certainly seems possible,” Dix added. “I just can’t believe that if all 106 of these cases went to trial that the prosecutors could prove that all 106 were guilty, but that’s just a suspicion on my part.”

As Thompson put it, “Prosecutors will have a pretty good idea of who they’re really going after.” Even if the DA thinks he has a legitimate case against all 106 people—or all 177—that doesn’t mean he intends to prosecute all of them on this charge. Charging all of them with the intention of cutting some plea bargains is standard procedure, though the plea-bargain process has come under fire as unfair to defendants. Many defense lawyers also believe that prosecutors consistently overcharge defendants so as to pressure them to plead to lesser charges. “I would hope that they’re not indicting anyone who they think is not actually guilty of something, because that would be a violation of prosecutorial ethics,” Thompson said.

Sometimes a heavy set of charges like this induces a “rush to the courthouse” to plea, but the immediate reaction from many defendants in the Twin Peaks case was dismissive. The New York Times talked to lawyers for several of them, including one who, asked about the indictment, replied, “What I would characterize it as you couldn’t print.” The next few months will show whether Texas’ organized-crime statute and the wiles of District Attorney Reyna are up to the challenge of tackling the feared Cossacks and Bandidos.