Posted on 08/07/2015 5:32:18 AM PDT by don-o
McLennan County Justice of the Peace W.H. “Pete” Peterson, who has been a lightning rod for criticism in the wake of the May 17 Twin Peaks shootout, said Thursday he has changed his mind about presiding over examining trials for 16 bikers and will allow a retired judge to hear them.
Senior State District Judge James Morgan, who formerly presided over the 220th Judicial District of Bosque, Comanche and Hamilton counties, was appointed earlier this week to hear the examining trial of Hewitt resident Matthew Clendennen because another judge recused Peterson last month.
Peterson, a former state trooper, said earlier this week that Morgan would hear Clendennen’s examining trial and that of Drew David King, a biker from Dripping Springs, who also filed a motion to recuse Peterson, but that he would hear the other 16 examining trials filed in his court.
But on Thursday, Peterson said he decided to allow Morgan to hear those cases. He declined comment on why he changed his mind.
Clint Broden, a Dallas lawyer who represents Clendennen, filed a judicial complaint against Peterson and has been openly critical of Peterson’s involvement in the wake of the May 17 shootout that left nine bikers dead and 18 wounded.
Broden complained that it was inappropriate for Peterson to say he set bonds for 177 bikers arrested at $1 million to send a message about the gravity of the incident.
Arrest warrants
He also was critical of Peterson issuing arrest warrants that relied on what Broden called “fill-in-the-blank” arrest warrant affidavits that Broden claims included insufficient probable cause and identical allegations for every biker.
In his order appointing Morgan to hear the Clendennen examining trial, Judge Billy Ray Stubblefield, administrative judge of the 26-county 3rd Judicial Region, also gave Morgan authority to hear any of the 19 other cases involving bikers who have requested examining trials.
Bikers had examining trials set to be heard Friday in Waco’s Municipal Court and in Waco’s 19th State District Court. But the request for an examining trial in Municipal Court was withdrawn Thursday, and the hearing in 19th State District Court was postponed until Aug. 28.
Justice of the Peace David Pareya, of West, had two examining trials set in his court, but one was postponed last month and the other withdrew the request, Pareya said Thursday. No date has been set to hear the case that was postponed, he said.
Examining trials are rare in McLennan County. They are held, primarily, when a defendant can’t post bond and challenges the sufficiency of evidence to support his arrest and to allow his attorney to get an early glimpse of the evidence against him.
The state’s burden of proof in examining trials is much less than in a trial, where a defendant’s guilt must be proved beyond a reasonable doubt.
If a judge rules there was insufficient cause for an arrest, a defendant is not bound over for trial and is relieved of the responsibilities and restrictions of his or her bond, if the defendant no longer is in jail.
Only two of the 177 bikers arrested remain in the McLennan County Jail. Both have charges pending from other counties.
Nine bikers died in this shootout. Supposedly the bullets were recovered. Did the bullets come from police weapons or biker weapons?
Almost three months later and that info has not been shared. Why do you think that is?
Biker withdrawal from the case that had been scheduled for today could be the result of consultation between Broden and other lawyers, allowing Broden to take the lead and see what the state's position is going to be. The bikers who have valid civil rights claims will face a tougher battle on the civil rights claim, if their case history includes a judicial finding of probable cause.
And just to repeat my general point of view, the real reason for a judicial decision is not always "the law," and is often outcome-based. In this case, it behooves the state to find probable cause, and the judges are tools of the state, not tools of or for the accused.
But, there is still the excessive bail piece.
And just to repeat my general point of view, the real reason for a judicial decision is not always "the law," and is often outcome-based. In this case, it behooves the state to find probable cause, and the judges are tools of the state, not tools of or for the accused.
And it is good to be reminded of that. It tempers any optimism that I might start to entertain and gets me back to BOHICA.
A judicial finding of probable cause doesn't preclude prevailing on a civil rights claim, it just makes the argument tougher, and that on a case-by-case basis.
The accused that don't take an examining trial, and aren't charged, their civil rights claim can point to arrest, detention, and assert absence of probable cause. The state has to defend that, without the benefit of having a judicial decision.
The accused that have a judicial finding of probable cause can still file civil rights claims, but the state will bring up precedents that appear to hold that judicial findings of probable cause can't be attacked, or are held to a high standard for reversal. IOW, the presence of a finding of probable cause makes the argument "different," but not necessarily any more of a loser.
I speculate that both types of case will end up in federal court on civil rights (41 USC 1983) claims; and probably in Texas civil courts on false arrest claims.
Since Peterson knows NOTHING about the law and should be brought up on charges himself, this was the only move he had.
Delay after delay after lie after lie from the WPD. Yep, pretty much a slam dunk on who killed those men in cold blood.
If the autopsy reports show the bikers were all killed by police issued M4s, that would be trouble. Bikers usually pack concealed pistols, and some could have legally done so.
Not to mention the gunshot wounds of the injured.
Manslaughter.
“If the autopsy reports show the bikers were all killed by police issued M4s, that would be trouble. “
““The video clearly shows Bandidos executing Cossacks and Cossacks executing Bandidos, some at point-blank range,” Jarrett said.”
How many? Three? Four? Nine? What kind of bullets? DA knows. Why the wall of silence?
Just in time for examining trial action. Sort of. The 10th District Court of Appeal gave Johnson 7 days to vacate his gag order, and if he doesn't do it by then, the appeals court will.
I guess the request for oral argument wasn't granted. The opinion isn't up at the court website yet.
Boom!
This is the entirety of it, in plaintext.
IN THE
TENTH COURT OF APPEALS
No. 10-15-00235-CR
IN RE MATTHEW ALAN CLENDENNEN
Original Proceeding
MEMORANDUM OPINION
Relator's Petition for Writ of Mandamus was filed on July
1, 2015. Without recitation of the facts of the case and
discussion of the applicable law, of which the parties are well
aware, based on this Court's opinion in In re Graves, and the
authorities cited therein, Respondent abused its discretion by
issuing its June 30, 2015 gag order. In re Graves, 217 S.W.3d 744
(Tex. App.-Waco 2007, orig. proceeding). Accordingly, we
conditionally grant Relator's Petition for Writ of Mandamus. A
writ will issue only if Respondent fails to vacate its gag order
issued on June 30, 2015 and notify this Court in writing that it
has done so within 7 days from the date of this opinion.
Relator's motion for stay is dismissed as moot.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Davis concurring without an opinion)
Pet. conditionally granted
Motion dismissed as moot
Opinion delivered and filed August 7, 2015
Do not publish
“How many? Three? Four? Nine?”
If we take him literally ... at least four.
Why yhe five days to implement?
Broden asked for an order from the appellate court. It said it will conditionally grant the order - if Johnson doesn't reverse himself in seven days. The way that plays out is the lower court rescinds the order, and Broden does NOT get the order he asked for - but so what, he doesn't need the order any more.
The calendar week is also a courtesy, so Johnson doesn't have to rush.
I read the link and did a text search. Who is Jarrett? Valerie Jarrett?
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