Whatever happened to all those Waco bikers? You know, the 177 people arrested at the Twin Peaks restaurant in Waco, Texas after a motorcycle rally on May 17 ended with nine people shot dead?

Immediately following the shooting, I wrote about just how badly Waco authorities screwed up the arrests. Rather than trifle with technicalities like the rules for bail under the Texas Code of Criminal Procedure, Justice of the Peace Pete Peterson set bail at a staggering $1 million for each of the arrestees in order to “send a message.” Then I described how prosecuting nearly 200 bikers was crushing the criminal justice system in McLennan County and costing taxpayers a fortune.

Why did the story fade from public attention? What’s come out since the story broke?

As it turns out, it’s no accident that you haven’t heard more about the Waco biker debacle.

First, let’s look at two developments that seem like they would be informative, but actually aren’t.

Examining Trials Begin

On Monday, the first three of the 17 currently scheduled examining trials for some of the arrested bikers will begin in McLennan County.

Think of “examining trials” as preliminary hearings with a quirky Texas name. Someone accused of a felony can request an examining trial any time before indictment. The prosecutors must show a magistrate probable cause to believe that the accused committed the offense. If the prosecutors fail to meet this burden, the charges are dismissed. And other people in the DA’s Office probably laugh at them, because that’s a featherweight burden of proof.

Defense counsel sometimes use an examining trial to get an early peek at the prosecution’s case. Don’t expect McLennan County prosecutors to reveal much at the upcoming examining trials, though.

Prosecutors can bypass an examining trial at any time, taking the case straight to a grand jury for an indictment. So, when a defendant requests an examining trial, DAs usually either respond to the request by proceeding to the grand jury, or they’ll try to keep the evidence presented at the examining trial as paltry as they can while still showing probable cause, so that the defense doesn’t gain the advantage of de facto early discovery.

Examining trials can sometimes push forward a lagging case by requiring prosecutors to either pony up some proof and get on with it, or stop burdening the accused with custody or bail conditions. For individuals waiting in limbo while McLennan County slogs through its overloaded docket, this kick in the DA’s pants might be a good thing. But the kick probably won’t produce reams of fresh public information about the Waco shooting.

Autopsies

On Thursday, McLennan County released autopsy reports for the nine people killed during the shootout. To no one’s surprise, the autopsies stated that all nine men died of gunshot wounds. The information released this week does not include a ballistics analysis. So, there’s no indication of whether police or bikers fired the lethal shots.

The autopsy results were about as illuminating as a blown light bulb. But there’s a bigger reason why the public remains in the dark.

Judge Johnson’s Massive Order Gags Even Bikers

Matthew Alan Clendennen filed a federal civil rights suit against Waco authorities shortly after his arrest at the biker rally. Clendennen is a Baylor graduate, a former volunteer firefighter, and small business owner who had no criminal record prior to his arrest on May 17. He’s mad as hell about how McLennan County officials treated him, and he’s not going to take it anymore.

But what Clendennen is also not going to do is talk about it anymore. Not if District Judge Matt Johnson has his way.

On June 30, Judge Johnson of the 54th District Court in McLennan County imposed a protective order limiting pretrial publicity in Clendennen’s criminal case, shutting up outspoken criticism of what happened in the wake of the shootings.

You might call the order prohibiting attorneys, police officers, and witnesses to the events on May 17 from talking to the media a “gag order.” You might think that preventing the public from seeing the security video footage of the Twin Peaks restaurant at the time of the shooting seems like a “gag order” too.

But doesn’t protecting sound nicer than gagging?

McLennan County District Attorney Abel Reyna asked Judge Johnson to issue the order. Reyna is concerned that criminal defendants in other cases will be prejudiced by too much talk about what might have happened that fateful day. He is also very concerned about the public not seeing the video recording of the Twin Peaks restaurant.

Reyna happens too to be among the officials named as defendants in Clendennen’s civil rights suit. Also, Abel Reyna is Judge Johnson’s former law partner. The AP reports:

Johnson and Reyna’s onetime partnership extends back until at least 2001, when Johnson joined the Reyna & Reyna law firm, which was owned by Reyna’s father, former McLennan County district attorney and state appeals court judge Felipe Reyna. Johnson and Abel Reyna stayed in practice together when the firm later became Reyna, Johnson & Reed, said former partner Damon Reed, who still practices in Waco. Johnson left the firm when he was first elected to the bench in 2006.”

I’m sure none of these facts influenced Matt Johnson’s decision, though. Right?

So, Johnson gagged a whole lot of people, including lots of bikers.

Chief Justice Tom Gray of the 10th Court of Appeals, an intermediate appellate court, found that Judge Johnson had abused his discretion by shutting out press coverage. Gray ordered Johnson to vacate the protective order.

Apparently, some judges just don’t know protectionwhen they see it.

This Thursday, the Texas Court of Criminal Appeals, the state’s highest criminal court, issued a stay on the intermediate court’s move to vacate the gag order. Unpack the negatives in that procedural history and you’ll find that the gag order remains in place during the pendency of the appeal.

Prior Restraints

Regardless of whether Johnson’s order is a “gag” or “protection,” it is certainly a restraint on speech. As in “a prior restraint on speech.” The kind of state action that is presumptively unconstitutional.

Prior restraints on speech are likely to violate the First Amendment, but courts permit them in extraordinary circumstances. When the right of a criminal defendant to receive a fair trial would be compromised by pretrial publicity, courts can act. Sometimes when the Sixth Amendment squares off against the First Amendment, the First loses.

However, before issuing this type of order, judges must consider less restrictive means of preserving the integrity of the proceedings. Venue changes, careful voir dire, jury sequestration, and strong jury instructions can go a long way toward preventing a tainted trial. Only in the narrowest of circumstances is abridging free speech and a free press the only viable option.

Do the circumstances in Clendennen’s case rise to this level?

The reason the arrested bikers’ story isn’t in more headlines is not because what took place in Waco on May 17 doesn’t deserve public scrutiny. In fact, the reason the story isn’t in more headlines — a dubious gag order issued by self-interested officials — is itself something that deserves public scrutiny.

P.S. On Friday, I spoke with David Brown of Austin Public Radio’s “Texas Standard” about the Waco bikers. If you wonder whether my opinions sound any better than they look in the column, you can listen to the segment here.

Earlier: Just How Badly Are Authorities Screwing Up The Arrest Of 170 Bikers In Texas?

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.