Posted on 07/02/2015 4:37:18 PM PDT by don-o
Houston – Lawyers who represent the manager of a neighboring restaurant next door to Twin Peaks say an attorney for a defendant in a shootout on May 17 is threatening contempt and arrest if their clinet does not comply with a request for surveillance video.
Labeling a subpoena for the surveillance video from the cameras of Don Carlos Mexican Restaurant a “fishing expedition,” lawyers for the restaurant’s management termed “threatening…with orders of contempt and arrest” a request by a Dallas attorney in advance of an examining trial set for August 10 in Precinct 1 Justice Court by Judge Pete Peterson.
F. Clinton Broden, an attorney representing one the 177 defendants in the shootout at Twin Peaks on May 17, issued a subpoena for what two lawyers from the Buzbee Law Firm of Houston called “overbroad as it will unduly burden the non-party from reviewing hundreds of hours of surveillance footage from sixteen (16) different positions in order to comply.”
In a motion the attorneys stated “the manager of DC Waco Restaurant, the party Matthew Clendennen’s attorney is threatening to have arrested, is no longer in possession of the physical hard drive containing the surveillance footage requested.”
All copies were taken by “Waco Law Enforcement Agents” during the crime scene investigation, according to Bret Griffin and Ryan S. Pigg in a motion to quash the subpoena filed with the Justice Court.
At least one of the 9 persons killed by gunfire in a deadly shootout that erupted after a dispute between members of the Cossacks and Bandidos Motorcycle Clubs on May 17 in the parking lot between Twin Peaks and Don Carlos was found dead on a sidewalk at the Don Carlos location next door, according to Sheriff Parnell McNamara, who spoke candidly shortly after the gunfight.
Broden has argued in pre-trial motions before the 54th Criminal District Court and in an appeal for mandamus relief in the 10th District Court of Appeals that surveillance video will prove his client, Clendennen, was inside the restaurant during the shooting. He maintains, as has Clendennen in remarks before media outlets, that he was on the patio when the first shot rang out, then took refuge inside the building until the Waco police entered and told he and a large number of other motorcycle enthusiasts who were there for a Confederation of Clubs meeting to lay on the floor and await further instructions prior to the mass arrest.
Broden hopes to prove this allegation to Judge Peterson in order to gain a dismissal of the charge. Peterson served as magistrate in charging Clendennen with engaging in organized crime, a first degree felony punishable by 5 years in the penitentiary or up to life imprisonment. He set his bond, along with all other 176 defendants, at $1 million in order to “send a message.”
The Dallas attorney won release of the video from surveillance cameras at Twin Peaks restaurant in a hearing held on Tuesday, June 30 in 54th District Court. Judge Matt Johnson placed he and all other attorneys involved with the Clendennen case under a gag order precluding all public pronouncements or statements about the case for the duration of the litigation.
DC should make the data available for their patrons, as a courtesy and a warning.
That's a good point.
Maybe not as a technical point as far as the word "discovery" is used (e.g., maybe the rules of procedure don't call it "discovery" until after an indictment), but the right to evidence and the discovery process are ongoing. Parties can argue they don;t have to produce, and parties are obliged to produce new material as it comes into their possession. The subpoena to the DA and the PD probably (and should) include a demand for all witness statements that mention this defendant.
The state typically plays games with its obligation, forcing defendant to move for production and get a court order, but that's just the way the game is played. The state is interested in convictions, not justice.
It doesn't, so the patrons recourse is limited to doing business there or not.
Don Carlos doesn’t want to be associated with this for obvious reasons. They are prepping a civil suit because their business has been down since the shooting. I think best hope for DC will be if the Twin Peaks parent company demands all Twin Peaks signage, and markings come down immediately.
DC could also be making a case against all levels of their govts for any loss of business.
Here’s a fairly shoddy article that says the “State of Texas” quashed - does not name a court or a judge.
http://www.kcentv.com/story/29462119/biker-attorney-tries-to-obtain-don-carlos-surveillance-video
Hahahahaha. I was thinking the same thing. Maybe they used to get overflow biker business. That suit against the government is doomed, the government doesn't have any affirmative duties.
As for the proposed/maybe suit against Twin Peaks, that's a stretch too. Running a nuisance? The nuisance is gone, Twin Peaks is no more. Twin Peaks is culpable for the actions of the bikers? That puts every business that takes unsavory customers in a pickle. Sometimes your neighbor brings your property value down. Unless the neighbor does something that is legally actionable, you just have to take it in the shorts.
It’s certainly difficult to identify a potential winner in this Waco business.
Many things don't have an upside, just a "cut your losses" optimization.
Except the lawyers, judges, and support industries (prisons, parole officers, bailbondsmen) benefit when things go badly.
The surveillance footage is no longer in Don Carlos' possession due to the ongoing investigation. "To require a non-party to disseminate this information would be unfair and prejudicial and potentially in conflict with the gag order.
That video has already been turned over to authorities, so the defense lawyer is threatening contempt and arrest for material the third party doesn't have.
thx...
If Clendennen gets cut loose on the ‘gang’ charge, what happens to all the others charged the same way on those blanket arrest warrants?
If the law was working as it's designed to, each case where the prosecutor is unable to recite a particular (personalized) allegation results in release.
The DA is loathe to make specific allegations, because the defense then asks, in front of the judge, particular questions. Like, "do you have evidence that this person intended to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang?" If the DA answers "no," he and the judge are in a box. The defendant can also inquire, assuming the DA answers "yes" to the intent question, "what crime did defendant conspire to commit?", in addition to the handful of specific questions involved in the intent element.
This case stands for the proposition that evidence of association constitutes probable cause for committing the crime of organized conspiracy.
If so, then the police and DA ought to incarcerate all gang members, not just MC members, but ALL of them, big and small, Crips, Bloods, MS-13, and so on down the list. The reason they don't, is that the law, if followed, does not admit it.
So ‘association’ is sufficient to arrest and indict, but a trial and conviction would require an additional and specific criminal charge since the burden of evidence for the state changes from indictment to trial.
(Please excuse me if I’m getting this a bit sideways since I’m trying to frame this within my own limitations.)
The mass arrest only works unilaterally then: the group can be arrested en masse for association, but individual adjudication is required for release if no additional charges can be found.
If Clendennan is released, then legally it has no bearing on what happens to the other folks arrested.
Perceptually though, it could have a major impact on the political theatre so it will be interesting to see what happens.
Thank you for the explanation!
Association is not sufficient, as a matter of law.
The criminal prosecution process goes through phases - investigate, arrest, pretrial, trial. The burdens on the state vary as this process moves along, but all steps involve something referred to as "evidence."
The amount of evidence required to support investigation is fairly small, but not zero. To deprive a person of their liberty against their will, to arrest them, requires probable cause that the person committed a crime. At some (hopefully reasonably short) time, the state is required to formally make its accusation. This is called indictment or charging. The weight of evidence can be minuscule, but the allegation has to be complete, and each element has to have some evidence associated with it. Trial is where the evidence is subjected to the "proof beyond a reasonable doubt" standard, and by the time a case gets to trial, it is well established that evidence exists for every element of the alleged crime.
-- The mass arrest only works unilaterally then: the group can be arrested en masse for association, but individual adjudication is required for release if no additional charges can be found. --
There is no legal justification for the mass arrest. The state violated due process for most of the accused. Association is not enough evidence to support even probable cause a crime has been committed. Correcting this violation of rights will take time, and I expect the courts will perpetrate or continue the violation. If the court followed the law (it won't) it would have released Clendennan unconditionally, no bail, no ankle bracelet. The state has failed to support its allegation that Clendennan committed a crime.
-- If Clendennan is released, then legally it has no bearing on what happens to the other folks arrested. --
Generally correct. The state has the opportunity to present its evidence for every accused.
>>> There is no legal justification for the mass arrest. The state violated due process for most of the accused. Association is not enough evidence to support even probable cause a crime has been committed. <<<
I guess that’s pretty much the bottom line, isn’t it?
Now we know why we’re hearing nothing from the DA: “When you’re up to your nose in excrement, don’t open your mouth!”
Again, thank you for your patience and consideration.
In this incident, most of the arrested were not in the vicinity of the shootings, and for those people, the only way to justify holding them is to have evidence they conspired. Absent being able to make specific allegations that hold water (have some evidence in support), the "just" thing to do is release the person arrested; and if the judge finds absence of probable cause for arrest, the arrest ought to be expunged from the record, too. The cops and DA (and the judges) are just being pricks, because the so-called "justice system" enables and rewards pricks.
FWIW, this sort of denial of due process is common. This incident catches attention because so many people are swept up in the same incident. For the 140 unjustified arrests here, with multi-month incarceration of an innocent, there are probably 1,400 individuals and small groups caught up in the same oppressive process. The window into this is appellate decisions, and probably 1 out of 1,000 incidents get that far. Most people just walk away after the mistreatment. You can fight city hall, but it's expensive, time consuming, and there is NO reward at the other end other than to be able to say, "see, I was right."
What about a class action lawsuit in the amount of $500 million? Attorneys walk away with 33% and the plaintiffs get the rest. They could go after the state, county, and town of Waco.
It seems to me someone needs to not only pay but also lose their jobs for making this kind of wrongheaded decisions in the first place.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.