A Waco criminal court judge has issued a gag order in the Twin Peaks biker case preventing lawyers and prosecutors from talking to the media. He also shielded a Twin Peaks restaurant surveillance video from release to the public. Breitbart Texas sent a Texas Public Information Act request to the City of Waco for that and other videos on June 4th and has reported about the City’s noncompliance with the request.
Last week, an attorney for one of the bikers, Clint Broden, procured a subpoena for the Twin Peaks restaurant’s May 17th surveillance video. Patrick Keating, the attorney who represents the Twin Peaks franchise, had agreed to honor the subpoena.
In response to the issuance of the subpoena, the City of Waco filed a motion to stop its release arguing that releasing the video would interfere with the city’s investigation into the May 17th shootout. The City argued that Broden was trying to circumvent the legal rules of discovery by getting information from a nonparty. Broden responded that the City of Waco was trying to get around Texas rules governing criminal procedure.
Broden represents Matthew Alan Clendennen and he urged that he needed the video in order to help him prepare for an August examining trial and a pending motion to amend bond conditions.
Clendennen is a member of the Scimitars Motorcycle Club and is out on bond after having been arrested.
In his motion to enforce the subpoena, Broden argued that the video would support his client’s argument that there is no probable cause for his arrest and that he should not be held on restrictive bond conditions.
Broden, who is from Dallas, Texas, represents Matthew Alan Clendennen in his criminal case and in his civil lawsuit.
As reported by Breitbart Texas, Clendennen filed a federal lawsuit against the City of Waco, the McLennan County Sheriff’s Office, and individual peace officers. The federal lawsuit complains that Clendennen’s civil and due process rights were violated.
The motion to quash, filed by the City of Waco, urged that “On its face, the subpoena at issue exceeds the scope of any legitimate purpose and is an obvious attempt to conduct pretrial discovery.”
In his response to the city’s motion to quash, Broden asked for sanctions against the City, or Assistant City Attorney Judith Benton, for the amount of attorney’s fees incurred fighting the release of the video. Broden asked for sanctions stating that the city had no standing on the issue and had filed a frivolous motion.
The hearing on the city’s motion to quash the subpoena was conducted on Tuesday morning and was covered by the Waco Tribune-Herald. The Tribune-Herald reported that Judge Matt Johnson ruled he was putting a protective order on the surveillance video.He was concerned that its release may cause a problem with prospective jurors in the criminal case.
At the hearing early Tuesday, the judge denied the City’s motion to quash. The District Attorney’s Office had also filed a motion to quash that morning. Although there was an issue of timely notice to Clendennen and his counsel, the judge said he would allow the state to argue their motion.
As tweeted by Tommy Witherspoon, a journalist for the Waco Tribune-Herald who was at the hearing, Broden argued that “Sunlight is the best remedy.” Broden also reportedly argued “it boggles [my] mind that police and [the] DA can describe what is on the video but not allow his client to have a copy.”
Witherspoon also tweeted that the McClennen County Assistant District Attorney argued that the video was direct evidence in the case. The ADA reportedly stated he would comply with discovery but not in a piecemeal fashion.
Broden responded to the Asst. DA saying that the surveillance video was not “state’s evidence.” He urged that it belongs to the Twin Peaks restaurant chain. He also reportedly accused the DA’s office of being in violation of the Michael Morton Act by fighting the disclosure.
The Michael Morton Act provides that a prosecutor must produce and permit the inspection and copying and photographing of evidence by the criminal defense. The Act is named after a case where a prosecutor, who later became a judge, was found to have had knowingly withheld evidence of Morton’s innocence. DNA evidence exonerated Morton of his wife’s murder 25 years later. The judge lost his law license and served jail time.
The judge ruled that the attorney could get a copy of the surveillance video to assist in preparation for his client’s August examining trial.
With regard to the DA’s request that a gag order be signed in this case, Witherspoon tweeted that Broden cited a case about gag orders written by former Tenth Court of Appeals Justice Felipe Reyna. Justice Reyna is the father of District Attorney Abel Reyna who was asking for the gag order.
Witherspoon also tweeted that Broden argued against a protective order saying that the Waco Police Department placed a video of a convenience store robbery on its website on the day of the robbery.
Broden was reported to have told the judge that he will appeal both the gag order, and the order protecting the Twin Peaks surveillance order from public release.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served the state of Texas as a prosecutor and an associate court judge. Follow her on Twitter@LanaShadwick2