Posted on 08/09/2015 1:25:12 PM PDT by don-o
Waco – Court observers will see a rare occurrence on Monday, August 10, at 2 p.m. in Precinct One Justice Court, Place Two – the examining trial of one of the Twin Peaks defendants on the first degree felony offense of engaging in organized criminal activity, a capitol offense that led to the murder and/or aggravated assault of numerous victims.
According to a veteran prosecutor who oversees Grand Jury scheduling and criminal filings, the scheduling of trials and such, only two have been held in his past 27 years of experience serving in the McLennan County Criminal District Attorney’s Office.
Texas prosecutors and judges are reluctant to allow defendants and their lawyers the pre-trial discovery technique of the examining trial.
It is formally known as “The Commitment or Discharge of the Accused,” Section 16 of Title 1, Texas Code of Criminal Procedure.
As such, it’s a lot like the system of pre-trial hearing employed in many states in which an accused offender is bound over for trial based on an extensive hearing as to the state’s evidence – an examination of probable cause in open court in which an attorney is allowed to cross examine witnesses, rather than an inquisition that takes place withing the confines of a secret proceeding, the Grand Jury.
The chief difference is that in a Grand Jury session, the attorney of an accused must remain outside the room. If an offender is questioned by the prosecutor or members of the Grand Jury, he must leave the room in order to consult with his attorney, then return to answer the question.
In the Examining Trial, as outlined in Article 16.01 of the Texas Code of Criminal Procedure, the accused may make a statement prior to the start of presentation of evidence and testimony, but may not make a statement following, either of assertion or rebuttal.
There is no way an accused person may be subjected to the kind of treatment involving embarassing questions such as, “Is it true you have since stopped beating your wife?,” then be required to leave the room to talk to his lawyer if he requires legal advice on how answer such a question, before returning to answer.
In fact, in the examining trial, an accused offender need not say a word, but should any word be uttered, it will be recorded verbatim by the Court Reporter, and may then be entered into evidence in the case in chief. As in a criminal trial, a defendant may not be compelled to testify against himself. Should he offer testimony, he may be cross examined by opposing counsel.
The rules of court and the rules of evidence apply, as in a criminal trial.
Furthermore, under this system, defense attorneys are able to engage in the time-honored practice of venue shopping, since the judge hearing the evidence is sitting as a magistrate. In Texas, a magistrate may be any judge – any judge at all, including anyone so charged by honor of their position, from the Chief Justice of the Supreme Court of Texas or Associate Justices; and member of the Court of Criminal Appeals; an apellate judge of the intermediate District Courts of Appeals; District Judge, either sitting or visiting; County Court-at-Law Judge; Justice of the Peace; or Municipal Judge.
If the Judge acting as Magistrate in the examining trial should find insufficient probable cause to hold a trial on the charges specified, and thus examined, he may immediately discharge the accused, or, should he enter no order within 48 hours, the charges are automatically dismissed, the defendant thereby discharged, and the evidence related to the offense will go untried.
The reason this almost never happens is that prosecutors and judges usually drag their feet until the Grand Jury docket revolves to the case of the defendant, an indictment is returned, and by that act of prosecution, the possibility of an examining trial is precluded by the Code.
The 177 defendants under prosecution for the identical charge of engaging in organized criminal activity, an offense which could net a defendant a sentence of from five years to life confinement, fall into two broad categories. Either they were involved in the violent melee, the shooting and fighting that took place in the parking lot, or they fled to the interior of the buidling to wait it out.
Matthe Clendennen is in the second category of defendants. His attorney has described his status as that of someone who is a “witness to something he did not see.”
The examining trial of Matthew Clendennen has been hard won by his Dallas attorney, F. Clinton Broden, through extensive pre-trial publicity, vigorous advocacy through motions and an unprecedented level of activity in what is in most cases a sluggish, rather lethargic pace of events. McLennan County Criminal District Attorney Abel Reyna is on record calling it “riding the docket” in press interviews. He says defendants use it to their advantage, opting to do a significant portion of their time in the air conditioned comfort of the McLennan County Jail, rather than insisting on a speedy trial and a quick transfer to the farms operated by the Institutional Division of the Texas Department of Criminal Justice.
Broden’s client Matt Clendennen is a family man, the proprietor of a lawn maintenance service and a Baylor University graduate who in his enthusiasm for motorcycle riding, joined an associate motorcycle club of the national organization, the Cossacks Motorcycle Club.
He is on record saying in a press conference held at his mother and father’s residence that he attended a meeting of the Confederation of Clubs at Twin Peaks Restaurant on Sunday, May 17, arrived early and seated himself on the patio where he ordered a bottle of water and waited for the meeting.
He was not armed, had no idea what the exact agenda would be, and was actually just out for a lark with friends who had planned to ride on following the adjournment of the Confederation of Clubs meeting, a function in which the Cossacks and their associates had previously found themselves unwelcome.
One item on the meeting agenda was a discussion of the status of numerous proposed bills regarding open carry of handguns under consideration in the Texas Legislature. Asked if he was interested in that item, Clendennen told newsmen at the press conference that he was unaware that there was an agenda, or that handgun legislation was on it.
When he saw the first sign of trouble, heard the first gunshot ring out, he fled the area for the interior of the building, and remained there until police entered, ordered everyone to lay prone on the floor, and was arrested and transported to the Waco Civic Center, where he remained in zip tie handcuffs until the pre-dawn hours of Tuesday morning when he was transported to the McLennan County Jail, charged by Judge Pete Peterson, his bail set at $1 million dollars, and then transferred to the Jack Harwell Detention Center next door.
He was subsequently released two weeks later after his bail was reduced to $100,000.
His attorney, Broden, won the recusal of Judge Peterson, the magistrate who charged all 177 defendants with the identical capitol offense on fill-in-the-name affidavits of warrantless arrest through vigorous pre-trial litigation.
Those identical, non-specific affidavits allege only that the defendant was a member of a known “motorcycle gang,” was wearing a costume with the colors of a gang’s imprimatur, and were there looking for trouble, as alleged by Detective Manuel Chavez of the Waco Police Department.
So mote it be.
The way I read the press report, what has been filed is a conditional agreement, more like an offer than accepting an offer. If the state agrees to relax bail conditions, Clendennen will waive his right to examining trial.
Broden may be reading the tea leaves the same way I am, that the courts are going to find probable cause no matter what, and he and Clendennen would be satisfied if the bail conditions were dropped, for now. Any civil rights case can be filed later, and better to NOT have a judicial finding of probable cause on the record.
Unless someone really competent at data recovery can get that info, it probably can’t be verified. While it is possible micro SD cards and sim cards were merely duplicated and the originals wiped, (most of the phones I am aware of use micro SD cards to store video) chances are those cards are gone (kept by the LEOs and maybe replaced with blank ones), and the original sim cards (where phone account information and contacts are stored) have been taken as well, with (maybe) new cards generated to make the phone usable.
Source for the comment that you gleaned from Aging Rebel. Says that Broden “filed an agreement” so you were (again) correct.
Examining trial scheduleThe following examining trials are scheduled for bikers arrested in the Twin Peaks incident. Retired Judge James Morgan will preside in the courthouse annex visiting courtroom:
Aug. 17
10:30 a.m. Morgan J. English, Brenham
1 p.m. William H. English, Brenham
3 p.m. Daniel Pesina, San AntonioAug. 19
9 a.m. Clayton D. Reed, Burleson
10:45 a.m. Matthew R. Folse, Dallas
1:30 p.m. Noe Adame, Dallas
3:15 p.m. John Robert Wilson, WacoAug. 24
10:30 a.m. Drew David King, Dripping Springs
1:30 p.m. Dalton Davis, Bowie
3:15 p.m. Lawrence Yager, BudaAug. 26
1 p.m. Richard R. Donias, San Antonio
3:15 p.m. John Guerrero, San AntonioAug. 27
Tom M. Mendez, San Antonio
Lawrence Garcia, San Antonio
Juventino H. Montellano, San AntonioAug. 28
Joseph M. Ortiz, San Antonio
Richard Luther, Garland
Whatever the result of the first one is, I figure the others will be the same. While the facts for each accused is different, the allegations are apt to be the same, and what is tested is the allegation vs. either articulable evidence that a crime was committed, or the Texas magic words that substitute for probable cause.
And the article states the Clendennen has withdrawn his request for an examining trial.
I will make a new thread of the article.
It attributes that claim to Peterson. Other reports were that Broden had filed a conditional agreement, but I haven't seen any report, other than the inference here, that the agreement/offer (get rid of bail conditions and I'll waive my right to examining trial) was accepted by the state. Bail conditions were imposed by a court, and have to be reversed by the court that imposed them.
The "agreement" doesn't appear at Broden's Pleadings / Motions - Waco Biker Justice page.
Spotty reporting, and the courts involved don't publish the filings to the internet. Not that it would make much difference, I doubt I'll ever understand the choice of venue in the lower Texas courts!
DA appeals 10th Court's ruling on Twin Peaks biker's case gag order - WacoTrib.com - August 11, 2015
McLennan County District Attorney Abel Reyna has asked the Texas Court of Criminal Appeals to overturn a ruling by Waco's intermediate appellate court that lifted a gag order in the case of a Hewitt man arrested in the Twin Peaks shootout.Reyna filed a petition for writ of mandamus and a motion for stay of writ of mandamus with the state's highest criminal court Tuesday. Reyna is asking the court to rule that the 10th Court of Appeals was wrong last week when it ordered 54th State District Judge Matt Johnson to vacate a gag order he imposed in the case of Matthew Alan Clendennen. ...
In arguing that the gag order be continued, Reyna says the defendants' rights to fair trials are in jeopardy because of "a danger of prejudice from pretrial publicity."
Judge Peterson releases names of 17 other bikers seeking examining trials - Aug 11, 2015
Court Clerk Victoria Perez insisted she did not know of any such cases [examining trials to be conducted by visiting judge Morgan]. She further refused to give her name, saying she has no knowledge of whether legal instruments are filed with the clerk's office when parties to criminal litigation seek to move the Court to act, or that such documents are public record.When Judge Peterson became available, he insisted that no such information could be obtained because "I have to coordinate with the DA's office, Judge (James) Morgan, the police and the defense lawyers. All that will take time."
Upon learning that the request includes only the names of the defendants seeking examining trials once Judge Morgan becomes available, Judge Peterson relented, directing his clerk to release the information. ...
It was further learned by asking those who are not subject to a gag order imposed by 54th Criminal District Court Judge Matt Johnson on attorneys, the defendant, staff and expert witnesses in the case of Matt Clendennen that discovery is underway in the other cases, including video from 16 video surveillance cameras at the Twin Peaks restaurant where the shooting took place, statements taken from defendants and witnesses, and police reports.
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