WACO, Texas — Texas prosecutors who have failed to convict a single person in the three years since a Waco shooting left nine bikers dead are trying a new tack of targeting fewer cases, but attorneys for the bikers say the evidence is so shaky and the lead prosecutor's credibility so damaged that it will be difficult to make the remaining charges stick.
The May 17, 2015, shooting also left 20 wounded and nearly 200 arrested at the Twin Peaks restaurant. Investigators say it was sparked by rivalries between the Bandidos and Cossacks motorcycle clubs ahead of a meeting. Waco police monitoring the gathering said officers opened fire after fights and gunfire broke out. Ballistics evidence shows that police bullets struck four of the nine dead, at least two of them fatally.
Prosecutors initially indicted 154 bikers, using a conspiracy law that is difficult to apply because it requires proof beyond all reasonable doubt that three or more people acted together to support a criminal organization.
In the two weeks before the anniversary on Thursday of the deadliest biker shooting in U.S. history, prosecutors in Waco dismissed 98 indictments and have narrowed the cases to 25. Three of those are murder charges against Bandido members Glenn Walker, Ray Allen and Jeff Battey.
A problem for the prosecution is that McLennan County District Attorney Abel Reyna is a lame duck, having lost a Republican primary race in March after being accused of mishandling the biker cases. A new prosecutor won't be elected until November. Instead of resigning or keeping a low profile until then, Reyna has moved more aggressively.
"One would have thought that repudiation in the March primary would have resonated," said Clinton Broden, an attorney for one of the bikers still being prosecuted. "Instead, Reyna appears intent on being the last player at the blackjack table at 3 in the morning who keeps doubling down until he is out of chips."
Reyna declined an interview request from The Associated Press.
Then there are issues with the evidence that emerged at the only biker trial since the shooting, defense attorneys said.
One of the alleged murder weapons was recovered by a U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives agent from the backseat of a Waco SWAT police car, cross-contamination that makes it harder to prove who killed whom.
Prosecutors have charged Walker in the death of Richard Kirschner, a Cossack. But police records previously reviewed by the AP show a Waco SWAT officer, Michael Bucher, shot Kirschner twice with his rifle. An autopsy report says there were three gunshot wounds. Walker's pistol was later recovered from a pile of weapons police reports and dashcam footage shows were tossed into the back of Bucher's vehicle by officers. The ATF wasn't able to positively identify any fingerprints on Walker's pistol.
Multiple fingerprints found on the same gun would make an analysis of who fired that gun more difficult, said ATF spokeswoman Nicole Strong.
Prosecutors have charged Allen and Battey in the death of Matthew Mark Smith, another Cossack.
Allen's attorney, Brian Walker, said Allen fired his weapon in self-defense after Battey was shot in the shoulder. An autopsy report shows that Smith was shot twice, but a firearms analysis couldn't determine the source of the bullets or which gun fired the kill shot.
Under Texas law, a person can be found guilty of murder even when not directly responsible for the death during the commission of another felony crime.
The one trial so far, of Jake Carrizal, the president of the Dallas chapter of the Bandidos, was also fraught with questions over whether prosecutors had fully shared all evidence in the case, and ended in a mistrial.
Reyna and his first assistant, Michael Jarrett, delayed subsequent trials, arguing that it would be unethical to proceed without reviewing evidence from a federal racketeering case against the former president and vice president of the Bandidos in San Antonio.
In what could be a positive development for the Waco prosecutors, jurors in San Antonio on Thursday convicted both men on all 13 counts, including murder. A spokesperson in Reyna's office said before the convictions that Waco prosecutors had not reviewed evidence from that trial. Defense attorneys said that proceeding with the new charges suggests that prosecutors' cases are not likely to be bolstered by the federal evidence.
"These guys sitting in Waco desperately needed to be superstars and it destroyed them," said Paul Looney, a Houston attorney who had represented some of the bikers whose cases were dismissed.
Some 130 bikers, shown in surveillance footage running from the firefight or trying to save bikers with gunshot wounds, have filed civil suits against the authorities.
Bikers' defense attorneys and outside legal experts have criticized Reyna's decision to immediately arrest and later indict so many people on a single charge. Among the critics is Brian Roberts, who was brought in as a special prosecutor in four cases in which Reyna recused himself. Roberts dismissed the first case for lack of evidence.
"That day (of the shooting) should have been the beginning of the investigation, not the end of it," he said.
About 40 people in leather vests bearing the names of independent mom-and-pop motorcycle clubs gathered at the McClennan County courthouse steps Thursday on the anniversary of the shooting.
"After three years he's (prosecutor) not through with us yet. He has brought out the shovel to bury us with," said Sandra Lynch, a member of Los Pirados motorcycle club, who had booked the Twin Peaks patio the day of the shooting.