Answers and evidence in Twin Peaks shootout delayed by case complexity, police caution

The incident was of such a rare scale and variety that McLennan County officials had never experienced anything like it.

Their response after the shooting stopped has been criticized by some and spawned at least one federal civil rights lawsuit and a judicial complaint.

Now, as the media, bikers and their relatives push for answers, many questions remain unanswered because of the sheer magnitude of the incident: nine dead, 20 wounded, 177 arrested, 27 vehicles seized, 488 weapons found on scene to date.

Officials are quick to point out the criminal justice system does not work like it does on TV crime shows, despite the public’s expectations.

“This is an investigation. The term ‘investigation’ carries with it a careful and impartial consideration of all the evidence and all the facts,” 19th State District Judge Ralph Strother said. “It is not done on ‘CSI’ time. It is done in real life and in the real world. It is to everyone’s best interests that all parties know everything so that we can be fair to everyone, and that cannot be done overnight.”

The incident at Twin Peaks apparently was not captured on video by any innocent bystanders or it already would have surfaced, as in the case of the McKinney pool party where teenagers filmed former police officer David Casebolt flinging a girl to the ground and drawing his gun on other teens who did not obey his orders.

If videos — other than squad car or business surveillance footage — captured the events in Waco, they may exist on the bikers’ cellphones, which were confiscated along with weapons, vests and motorcycles.

Waco police Sgt. W. Patrick Swanton said officers will not release any evidence they feel could taint a potential jury pool or otherwise hinder the investigation and that investigators feel the need to be absolutely certain of each new finding before releasing more information.

Swanton said he thinks many people have unrealistic expectations of how quickly an investigation can be thoroughly completed.

“Anybody who has any understanding of the magnitude of this case knows that we aren’t going to be done in two or three or four weeks,” he said.

Swanton noted that the various types of evidence used to determine exactly what happened run into the thousands and include cellphone data, DNA tests, autopsy results, toxicology tests, suspect and witness interviews, clothing and vehicle searches, gunshot-residue tests, photographs, diagrams of the crime scene and even electronic 3-D imaging.

Despite the unanswered questions, here are things to watch for as the cases progress. Many of the factors from this point forward will be decided by McLennan County District Attorney Abel Reyna, who is not answering questions about the cases.

Video evidence

Residents have called for police to release all videos of the shooting to the public in order to clear up conflicting tales about the events that transpired before and during the bloody melee. Waco police have declined, citing concerns that doing so would adversely affect their investigation.

Local officials sent the videos to the FBI for analysis. Swanton said the videos include images from at least one squad car dash camera, Twin Peaks restaurant surveillance cameras and a surveillance camera from the neighboring Don Carlos Mexican restaurant.

On May 20, the Tribune-Herald filed a request under Texas’ Public Information Act for all video from the shooting, including security surveillance from Twin Peaks and Don Carlos, as well as any dash cam or body camera footage. Waco police objected to the release of the videos and sent the request to the Texas Attorney General’s office on June 2, seeking an opinion.

“There are things that we know that we cannot talk about until trial,” Swanton said, adding the department is concerned about tainting a potential jury pool.

The Texas Public Information Act allows governmental agencies to withhold from public disclosure certain law enforcement records if the release would “interfere with the detection, investigation or prosecution of a crime.”

Kelley Shannon, executive director for the Freedom of Information Foundation of Texas, said police records make up the majority of public information requests in the state. Likewise, the bulk of opinions sought from the AG’s office are from law enforcement agencies seeking to withhold information.

“That is a very common loophole or exemption that police departments use if they don’t want to release records, because they say it could interfere with the ongoing investigation,” Shannon said.

Meanwhile, the public appetite for video of police encounters has grown with high-profile arrests or shootings involving law enforcement officers caught on tape.

Often, videos filmed by citizens hit the Internet almost immediately after an incident and garner widespread views. Millions watched the McKinney police officer, who has since resigned, fight with teens at a pool in a private community.

In other cases, police agencies have released surveillance videos in response to fiery calls from the public, such as the November shooting death of 12-year-old Tamir Rice by Cleveland police.

Shannon noted that open records laws vary from state to state, which could account for differences in when police videos are released.

“From my point of view, and many people in the public’s point of view, it should be released,” Shannon said of the Twin Peaks video. “But from the police’s point of view, sometimes they have internal information that’s part of their investigation where they feel like their whole case might be jeopardized by releasing it, so that’s why they argue that.

“Many of us feel like, release the information and let the public have at it, because it is part of the public record.”

The Attorney General’s Office has up to 45 business days to issue an opinion on whether the police department must release any videos from the shooting. Shannon said if the state office agrees that the videos should be made public, they could be available within 10 days of the decision.

But, if the AG’s office rules in favor of Waco police, the timeline for releasing the videos would be up to the department’s discretion. That could mean the earliest the public may see any of the videos could be at trial.

“I feel like many people believe these days that video is helpful in knowing how a certain situation occurred,” Shannon said. “If it helps the public understand what happened, it should be out there and available for public consumption.”

Ballistics evidence

All firearms recovered at the Twin Peaks shooting scene were sent to the Bureau of Alcohol, Tobacco, Firearms and Explosives for analysis, officials said. The ATF is leading the ballistics element of the investigation.

ATF Senior Special Agent Nicole Strong said pieces of evidence from the Waco Twin Peaks cases were taken to an ATF lab in Walnut Creek, California, and are being given top priority over other cases.

She declined to say what kind of evidence is being analyzed and said she is unsure at this point how long it will take, adding that their work easily could take a couple of months.

When it is completed, the evidence will be returned to the Waco PD, she said.

Waco Police Chief Brent Stroman said last week that three Waco officers fired a total of 12 shots from .223-caliber, police-issued rifles during the shootout. All other shells found at the scene weren’t from law enforcement weapons, he said.

So far, a total of 44 casings have been recovered, but Stroman said that total doesn’t include any casings that remained inside revolvers that were fired. He also disputed rumors that Waco police had officers assigned to the area in a sniper capacity.

A total of 488 weapons have been counted from the scene, and Stroman said that total may increase. The list includes at least 151 firearms, 12 of which were long guns. Other weapons include knives, brass knuckles, batons, tomahawks, weighted weapons, a hatchet, stun guns, bats, clubs, a machete, a pipe, an ax, pepper spray and a chain.

“Some were found using metal detectors as they were buried beneath the grass in the dirt,” the release said.

Russ Hunt, who has worked as a criminal defense attorney in Waco for 38 years and who has handled about 10 death-penalty cases, said processing forensic evidence in the Twin Peaks cases is going to be a “nightmare.”

“I would think that before they actually know who to charge, they are going to have to carefully examine all the videos and have all the ballistics tests done to see who was shot by whom,” Hunt said. “Not just ballistics, but a careful examination of the firearms.”

Hunt said complicating matters is the idea that someone could have shot another person and tossed the gun nearby or buried it in the ground around the restaurant. Hunt questioned whether scenarios such as this will complicate obtaining fingerprints or DNA off the guns.

DNA testing would certainly be contorted if bullets passed through one person’s body before striking someone else, Hunt said.

An example of the complexity of the ballistics involved in the case comes from Reginald Weathers, a Bandido from Forney, who testified at a hearing recently that he was shot in the arm. The bullet passed through his arm, entered his chest and exited the other side.

If the projectile is never recovered, how can experts match the ballistics to who shot Weathers?

“If the bullet didn’t stay in the person, they are going to have a hell of a time trying to figure out who shot that person and if it was a police bullet or not a police bullet,” Hunt said.

Vehicle, phone seizures

Prosecutors filed notices Tuesday of their intent to seize and forfeit a total of 27 vehicles, including 17 motorcycles, eight pickup trucks and two SUVs.

The documents allege the vehicles are contraband used during the commission of the melee which turned deadly.

Swanton said the vehicle forfeiture part of the investigation “has neared completion.”

A total of 130 motorcycles and 91 other vehicles were impounded from the scene on May 17, Chief Stroman has said, a number slightly above the original estimate.

As of Friday, police had released 91 motorcycles and 62 other vehicles to their registered owners in addition to releasing 20 motorcycles and 9 other vehicles to their lienholders after repossession orders were received.

Swanton said many of the vehicles were not seized by the county for a variety of reasons, including that they had “an extremely high lien amount in relation to the value of the vehicle,” were not from the Waco area, or were registered to someone other than the person who drove it to Twin Peaks that day.

Swanton said the logistics behind towing, storing, security and evidence collection for all of the vehicles required significant effort and was unusual for the department.

“You had a lot of wreckers and manpower that went into doing that,” Swanton said.

But many of the suspects who’ve had their vehicles returned are still missing their cellphones. Local officials said they are sifting through the communications stored on the devices. Swanton said officials will pull anything considered evidence from phones, including video, texts and phone logs. He noted that also could include relevant social media content, if necessary.

Autopsies

Swanton said the final written autopsy reports are still pending and that much of determining who was killed by whom may be verified through those results.

Justice of the Peace W.H. “Pete” Peterson said final autopsy results can take anywhere between a month to three months.

“They do a complete autopsy, and toxicology is part of it,” he said. “The lab work is usually what takes the longest.”

He added that the Dallas County Medical Examiner’s Office also prioritizes their own county’s cases, aside from receiving work from other non-medical examiner counties like McLennan County.

“It just takes time,” he said.

Justice of the Peace David Pareya said some of the full written autopsy reports in the 1993 Branch Davidian siege and in the April 2013 West Fertilizer Co. explosion came back more than six months after the autopsies were ordered. But Pareya called those cases unusual because of volume and complexity.

The Twin Peaks preliminary autopsy results, which were returned in the first few days following the shooting, show each of the nine men killed had gunshot wounds listed as the cause of death and homicide listed as the manner of death.

Some of the initial reports were more specific, including that for Matthew Smith, 27, which lists “gunshot wounds of the trunk” as his cause of death. The Tribune-Herald reported Wednesday that forfeiture documents filed show that when officers approached Twin Peaks during the shootout, a Waco police officer saw Jeff Battey and Ray Allen standing behind the restaurant “in a triangulated position” to Smith, who was on the ground “gasping for air.”

Other preliminary autopsy results show that Jacob Rhyne Lee, 39, died of a gunshot wound to his neck. Wayne Lee Campbell, 43, died of a “gunshot wound of the head into the trunk,” a document says.

Daniel Raymond Boyett, 44, the only person from Waco killed in the shootout, suffered multiple gunshot wounds to his head, a preliminary document shows.

Grand jury

The McLennan County District Attorney’s office has 90 days from the date of arrest to seek an indictment in the cases or those who remain jailed are entitled to personal recognizance bonds.

The DA’s office can take all 177 cases to the grand jury for consideration and allow the grand jury to decide if there is enough evidence to formally charge those arrested.

Some could be no-billed by the grand jury or the DA’s office could refuse to prosecute some of the cases if the evidence is weak.

If no formal charges are filed within six months, which few expect to happen, the cases are dismissed by law, but can be refiled.

Bond releases

As of midnight Thursday, 144 of the original 177 jailed bikers had been released, nearly all on reduced bonds.

Each originally was jailed on a charge of engaging in organized criminal activity and held in lieu of a $1 million bond.

Housing all 177 of the bikers cost taxpayers about $8,000 a day.

Although bikers’ families said the move to reduce bonds was not made quickly enough, in some cases attorneys declined offers from judges to move up bond hearings because the lawyers said their schedules wouldn’t allow it.

Reduced bonds negotiated by prosecutors and defense attorneys range from $10,000 to $300,000.

Most of the bikers were released with the conditions that they wear ankle monitors, have no contact with biker groups and remain in their home counties.

Trials

Since it still is unclear how many jailed bikers will be indicted, predicting trial dates remains tricky.

McLennan County’s courts in general work to prioritize trial settings for those who have been jailed the longest. Bikers who are unable to make their bonds and who demand jury trials could be in for quite a wait as the judges tend to their normal court dockets.

Staff writer Regina Dennis contributed to this report.