A Waco Police Officer holds his rifle on a man ballistics tests proved he shot as he bleeds out at Twin Peaks Restaurant on May 17, 2015.
Waco – A criminal district court judge is accused of picking and choosing what part of the law is convenient over that which is not in a murder case stemming from a biker shootout that occurred in this city more than three years ago.
Lawyers for a Twin Peaks defendant alleged in court papers that 54thCriminal District Judge Matt Johnson failed to perform his ministerial duty to ensure due process when he refused to quash a superseding indictment for rioting returned by a Grand Jury under the same cause number as the original charge of engaging in organized criminal activity.
They are seeking an order for Johnson to quash the new charge in a writ of mandamus.
Judge Johnson denied Marcus Pilkington, who allegedly struck a biker from a rival motorcycle club with a cudgel before another defendant allegedly shot him on May 17, 2015, the right to object to the form or substance of the amended charge.
That right is guaranteed by the Texas Code of Criminal Procedure, according to the appeal.
Houston attorney Clay Conrad argued it’s not up to the judge to choose what part of the law is convenient and “ignore the part that is inconvenient.”
Pilkington cannot “know whether he is facing two indictments or one,” as a result of Johnson’s denial of a previous motion argued by Conrad’s partner, criminal trial lawyer Paul Looney.
To further complicate matters, the victim Richard Kirschner died as a result of a gunshot wound to one of his buttocks from an assault rifle bullet fired by Waco Police Officer Michael Bucher, a death ruled a homicide by a medical examiner, for which as a police officer he was granted immunity in a previous session of the Grand Jury.
Pilkington’s lawyers have promised to appeal a negative ruling by the intermediate 10th District Court of Appeals at Waco to the state’s highest criminal appeals court, the Texas Court of Criminal Appeals, which sits at Austin.
Rioting is defined by Texas law as violence perpetrated by seven or more persons that is likely to cause damage to property or injury to persons.
In the shootout that took place between motorcyclists just previous to a meeting of the Confederation of Clubs at Twin Peaks Restaurant, 9 died, 20 suffered wounds, and 177 persons were initially arrested and charged. Some 155 later faced indicment for engaging in organized criminal activity.
Most of those charges were dismissed by the Courts with the proviso that greater probable cause existed to prove other alleged offenses. The Grand Jury returned indictments for rioting against 35 of the original defendants.
To read this legal instrument and the exhibits attached, click here:
To read the report of the autopsy surgeon who determined Richard Kirschner died due to homicide caused by a gunshot wound, one need only click here:
To watch the video from Officer Bucher’s dashcam, click here:
This is a video of the ambush and shoot-out depicted by a pole camera installed by the DPS at about 7 a.m. the morning of May 17, 2015:
Medical Examiner reads Bikers’ autopsies: