seems to me that if the DA office doesn't have it/copy of it, it's because they don't want to have it... and if they do, don't they have to turn it over to the defense during discovery?
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.
Probably aren’t hiding anything. They just know if they don’t do what the city wants, they (and their patrons) are going to be in for a hard time.
...wonder why the protest? Is it because their video is so valuable that they can’t risk it leaking to the public? Cash value? Get out of jail free value?
Btw, for newcomers to this situation: click on the Waco keyword above to view the posting history.
Their best argument is the only one they need to make. We don’t have the evidence, the government has it. Rock solid, no contempt possible. The “contempt or jail” language is boilerplate, not personal.
Well, this is odd. Broden said that the Twin Peaks management had their videos and were, in fact, willing to turn them over to him, before the City of Waco intervened.
Wonder why those were not seized as well. Maybe off site backups or something?
I agree with that.
I think this subpoena is to Don Carlos, not Twin Peaks.
I get subpoenaed from time to time, not as a party, and it’s unusual if the subpoena doesn’t demand production of evidence not in my possession. So, that’s part of my production, “I don’t have that.” Total non-issue. It’s weird that this response complains about difficulty, “hours of time to review, blah blah blah,” just give the requester everything, and make them review it. Automakers do similar, giving CD’s full of “everything they have,” and they don’t do so out of spite or to bury evidence, it’s just not fair to make them both produce and search against a specific request for evidence, across hundreds of lawsuits.
Theft of private property? Why couldnt the BATFE have just been given a copy of the HD?
Why shouldnt DC just have a stack of DVDs to hand out to interested cliential?
Somehow,Broden got something from Twin Peaks.
Yep. They will be getting a Health Department inspection every 10 minutes. And in between the 10 minutes, Code Enforcement, the Fire Marshall, and the gas company will be inspecting. They know what the City expects them to do.
I don’t understand what you are driving at with that question. Please elborate.
seems to me that if the DA office doesn't have it/copy of it, it's because they don't want to have it... and if they do, don't they have to turn it over to the defense during discovery?
All we are getting in this story is the response from Don Carlos. Defense puts out multiple demands for production, and it likely asked for the same thing (videos in possession) of the DA and the PD.
Welcome to the new matrix. I've just acquired various cams to monitor my property and as long as I'm not in view or hearing, I'll make it public in a heartbeat, as appropriate.
Don Carlos is working up a lawsuit against Twin Peaks. Don't know how that might play into this opposition to give the video over to this attorney.
They do own the evidence, but "voluntarily" surrendered it to law enforcement. If they don't have a copy, then that's that; meaning they can't produce what they don't have. At some point they get their property back.
As for having video available for the general public, certainly there is no duty to provide that, even if the requester is willing to pay for it, and there are good business reasons to keep your recordings as your (private) property, subject of course to judicial process as is all evidence.
Sure they do. But, we are not at discovery, if I understand it correctly. Broden is prepping for an Examining Trial and he’s trying to gather what evidence he can to challenge probable cause.
don-o guesses.
Criminal defendants have a right to pretty much all evidence. The fact that there is a separate civil suit using the same evidence can't be used to deny a criminal defendant access to evidence. Even if Don Carlos had an argument that giving the evidence to the criminal defendant would harm its chances in a civil suit (which seems a stretch), the criminal defendant has a right to the most vigorous defense.
Don Carlos asserts two reasons for withholding production. They don't have the evidence in their possession (which is the only argument they need); and production imposes an undue burden on them because they have to search hundreds of hours of video from multiple cameras in order to isolate material relevant to this defendant. That argument is specious if they had the evidence, as they can produce what they have easily, without searching, and argue burden if the court orders them to search it and isolate the relevant parts.
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