Pair of Bikers in Twin Peaks Shootout Case Push to Recuse Waco D.A.

Waco Shooting
AP Photo/Jerry Larson

Bikers who were caught-up in the Twin Peaks arrests in May 2015 have filed motions to recuse the Waco District Attorney. They say they cannot get a fair trial because there is a conflict of interest and have asked for the appointment of an attorney pro tem.

Lawyers for Matthew Clendennen and Burton George Bergman allege that McClennan County District Attorney Abelino Reyna is pursuing the criminal cases against Clendennen and Bergman because they are suing him in federal court for civil rights violations. They are suing the D.A. in his individual capacity and thus he could be held personally liable for hundreds of thousands of dollars if the civil lawsuits are successful.

Breitbart Texas obtained the legal documents requesting that the Waco D.A. be removed from prosecuting their criminal cases. Lawyers for the pair assert that the Waco D.A. should be recused because he has a clear personal, financial incentive to continue the prosecutions against the two bikers. The motions filed in the court argue that “It is well established law in Texas that, although it is normally up to a district attorney to initiate his own recusal, a trial court may disqualify a prosecutor when the disqualification is based on a conflict of interest that rises to the level of a due-process violation.”

Lawyers from the Dallas law firm of Broden and Mickelsen say in their press release, “Mr. Reyna has painted himself into a corner in which he must take the risk of taking the case to trial based on his own financial interests. Indeed, it appears that Mr. Reyna has been cast in the role of the lone player at the blackjack table at 3:00 a.m. in the morning doubling down on every losing hand and the reason he is doubling down is that he has no real choice but to double down. Unfortunately, like the proverbial blackjack player, he will keep doubling down until he runs out of chips.”

Clendennen and Bergman were two bikers who with over 170 others were arrested when they were caught up in the events on May 17, 2015, that led to mass arrests. The shoot-out killed nine bikers and wounded 20 others. Law enforcement officials and judges have been soundly criticized for their handling of these cases.

The Texas Criminal Defense Lawyers Association (TCDLA) has condemned the mass arrests of the bikers with “cookie cutter” indictments and arrest warrants, the setting of outrageous $1 million bonds, and making a Waco Police Department detective a grand jury foreman. All of the bikers involved were charged with Engaging in Organized Crime and when they were indicted, the grand jury took exactly 5.09 minutes to hear evidence and deliberate for each indictment (dividing 106 indictments by the nine hours it took on one day to indict those bikers).

Houston attorney Carmen Roe, a past president of the Harris County Criminal Lawyers Association (HCCLA) told Breitbart Texas after the mass grand jury indictments, “The McClellan County District Attorney’s Office continues to mock our system of justice by presenting 106 accusations in nine hours, giving the grand jury mere minutes to make a decision that could send anyone of the charged to prison for life. Organized criminal activity is a charge requiring little more than a conspiracy to engage in criminal conduct. Most attorneys know that conspiracy is one of the easiest charges to allege and the hardest to defend for any citizen accused.”

Breitbart Texas reported that one of the two McLennan County criminal district court judges named a Waco police detective foreman over a newly-selected grand jury. As also reported, the president of the TCDLA at the time, Sam Bassett, stated that the appointment was “shocking, even though within the technical requirements of the law regarding grand jury service.” “The fact that a District Judge approved this appointment makes it even more concerning.” The criminal defense lawyer from Austin, Texas, asked: “Imagine a private investigator for one of the defendants’ attorneys being appointed to the grand jury considering the case?” The lawyer continues, “That would not be any more appropriate.”

Speaking for the TCDLA, Bassett issued a statement that the organization’s concern with the Twin Peaks biker cases began when “a Justice of the Peace with strong law enforcement ties set identical bonds of $1,000,000 for each person arrested.” He noted that it took weeks for most of the bonds to be reduced, and many lost their jobs while they sat in jail. Bassett wrote, “The delays in getting proper bonds set with ‘cut and paste’ arrest warrants was a breakdown in our system of justice.” The leader of the nation’s largest state criminal defense association at the time concluded, “TCDLA believes that you carry out justice, even in complex cases, if there is a commitment to due process from both sides of the bar and judges. It is hoped that a stronger commitment moving forward will be implemented.”

As reported by Breitbart Texas, Clendennen filed a federal civil rights lawsuit against the City of Waco, the McLennan County Sheriff’s Office, and individual police officers. The suit claims that Clendennen’s Fourth and Fourteenth Amendment rights were violated by Waco’s alleged policy decision to indict and hold people with “fill in the name” criminal complaints. He also complains about the seizure of property. Motorcycles, guns, and other property were all seized from the bikers by police. The suit states Clendennen is a recreational motorcyclist, a Baylor University graduate, former fireman, small business owner, and a husband and father. He says he is no criminal, and while he is part of the Scimitars motorcycle club, he simply took cover inside the restaurant when the shooting began. He had been on the patio eating. Burton George Bergman filed a similar civil rights lawsuit.

The motions to recuse the Waco D.A. were filed in the courts where the criminal cases are pending. Mr. Clendennen’s motion was filed in the 54th District Court and Mr. Bergman’s motion was filed in the 19th District Court.

A motion to disqualify has also been filed by another biker, Ray Nelson. Lawyers for the other two bikers point out that Nelson, unlike Clendennen and Bergman, have not actually filed a lawsuit against District Attorney Reyna.

In filling the motions to remove the D.A., Clint Broden, who was recently released from a gag order sought by Reyna and overturned by the court of appeals, announced that, “in pursuing my clients’ prosecution, it is clear that Mr. Reyna is being influenced by his own personal, financial interests, and that these interests compromise the performance of his public duty. Only a true independent prosecutor will be in a position to truly act in the public’s interest and to seek justice. My clients and the citizens of McLennan County deserve a truly independent prosecutor on this case.”

As reported by Breitbart Texas, police characterized the afternoon gathering at the Waco Twin Peaks restaurant as a meeting of criminal biker gangs with violent intent. The bikers call the meeting a legitimate, organized gathering of motorcycle riders to discuss political and other issues. The groups gathered there, the Texas Confederation of Clubs and Independents (CoC&I), hold frequent meetings to discuss biker safety issues, proposed legislation, and other motorcycle issues.

Those at the Twin Peaks restaurant that day included bikers from Christian clubs and veterans, riding clubs (as opposed to motorcycle clubs), and independents (riders not associated with a motorcycle or riding club).

Veterans, independents, Christian bikers, and other bikers, say they are frequently profiled, and even detained to see if they have information about bikers obtained while engaging in a biker ministry, as previously reported by Breitbart Texas.

Bikers in the Waco Twin Peaks cases have been prosecuted using “guilt by association” arguments as reported by Breitbart Texas. They have been fighting the prosecution’s persistent use of terms such as “outlaw bikers,” “biker gangs,” and “outlaw biker gangs” when referring to motorcycle riders and all of the bikers in Waco on May 17th. They have cited legal opinions that prevent such “guilt by association” arguments by the State. The bikers have accused the prosecution of “cit[ing] its own repeated press conferences in order to allow it to repeatedly refer to these ‘clubs’ as “five outlaw biker gangs’” to support its motions filed in Waco courts. The prosecution is also charged with citing the “facts” the State asserted at its press conferences, as “facts” in support of a gag order, and in support of its other communications.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.


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