Posted on 07/25/2015 9:20:10 AM PDT by don-o
Six Shooter Junction – A Big D barrister assured his client will get a chance to have the probable cause of the charges against him examined at trial prior to a Grand Jury’s scrutiny.
In a favorable ruling on a motion to remove the magistrate who charged Matt Clendennen with the capital conspiracy charge of engaging in organized criminal activity that lead to murder, F. Clinton Broden furthermore assured his client that a new assignment of his case to a court of record for the purpose of an examining trial will be under the control of the Third Judicial Region Administrative Judge, Billy Ray Stubblefield, who sits at Georgetown in Williamson County.
Examining trials are very rare in the twin Criminal District Court jurisdictions of McLennan County, according to courtroom arguments made by First Assistant District Attorney Michael Jarrett.
During a tense hearing before retired visiting Judge Joe Carroll of Belton, he said that in five years of local criminal prosecution, he has seen only one examining trial prior to indictment. He also remarked that his associate, Assistant District Attorney Mark Parker, has seen only two in 27 years of experience as a prosecutor in McLennan County.
Judge Carroll acknowledged in remarks as he opened the hearing that in hearings such as the one in which he presided on Thursday morning, July 23, “The rules of evidence are fairly relaxed.”
He told both Jarrett and Broden, “I’ll be glad to hear whatever you have to say.”
As the hearing unfolded, he reminded both advocates several times that his assignment as ordered by Judge Stubblefield was to rule solely on whether Justice of the Peace Pete Peterson should remain on the case in an examining trial tentatively scheduled for August 10.
“These cases can actually be brought on affidavits,” he added. A ruling may be made on the basis of those affidavits prior to a presentation to a Grand Jury.
Jarrett replied to the judge, saying, “We would allow the defendant to take leave of this court to seek his hearing in any other court.”
Broden countered his statement, saying “That ship has sailed…” He explained that “I don’t want to be running around at this late date looking for another Court to file this (case for an examining trial)…”
The rules governing such examining trials allow they may be heard in any court of record, including Municipal Courts, the Judge agreed.
As it turned out, the proceeding was mistakenly filed in the Precinct 1 Justice Court, said Jarrett.
Broden agreed, saying that a person in the District Clerk’s office told him the case for the examining trial must be filed in the Magistrate’s Court in which charges were filed.
Jarrett sought to explain how a clerk could make such an error. There are so few of them sought, and even fewer of those are granted, he said.
“Once you have an indictment, there’s no more examining trial,” said Judge Carroll. Broden said that though there are many examining trials held in Dallas, where he normally practices criminal defense law, “I have heard of judges refusing to hear examining trials.”
Judge Carroll said examining trials are governed by the Rules of Civil Procedure. Rules 520 through 528 require the reasons an examining trial may be denied, and that they should be filed in the nearest court of record.
Broden then sent an associate attorney out of the courtroom to the office of Judge Hensley, which is located right next door. When he returned, he told the Court he had learned that Judge Hensley would be available on the date scheduled for the examining trial, but she would immediately recuse herself.
Broden again spoke on behalf of his client, a member of the Scimitars Motorcycle Club who, unarmed, ran away from the sounds of a gunfire and hid inside the Twin Peaks Restaurant as soon as a scuffle between Cossacks and Bandidos that led to the shooting deaths of 9 and wounding of 20 broke out on May 17. He fled as soon as he heard the first gun shot, and has been described by his attorney as a “witness to something he never saw.”
Broden told the Judge, “You are not Judge Johnson. You can’t give me permission to file for an examining trial in his court.”
Judge Carroll remained resolute.
He said, “I have to make a ruling on the case before me. What happens after that doesn’t concern me.”
He granted the motion for the recusal of Judge Pete Peterson, making reference to the exhibits attached to the motion detailing his improprieties by speaking to the media about the allegations contained in charging instruments he signed.
“Based on that, I’m gong to grant the recusal and turn it over to the Regional Administrative Judge (Billy Ray Stubblefield).”
All attorneys and the defendant in the unindicted case of State v. Matthew Clendennen remain under a gag order until further notice.
This was a member of the Scimitar gang. There is support of the Cossacks. Of course, he knows nothing and saw nothing.
Well, the video will make clear whether he ran and hid as soon as the trouble started. All we have to do is look at that.
No, wait, that is part of what the cops, judges, and prosecutors are hiding, isn’t it?
Why else didn't Clendennen or a full two thirds -- 117 "criminal bikers" -- of the criminal gang members arrested have prior records?
Either the cops in Texas are wholesale idiots ...
OR criminal bikers are incredibly smart and clever ...
OR the vast majority of the bikers arrested at Waco were innocent witnesses subjected to jackbooted thuggery on the part of the cops.
Rhino, you must think Texas police are wholesale idiots or that bikers are brilliantly smart, to commit crimes freely such that a full two thirds of them don't even have arrest records. Man -- those cops must be mighty lame, or else the criminals are Einsteins compared to the cops' Joe Bidens.
Whether he ran away or not, the prosecution will say he was still part of a group of bikers engaged in a criminal conspiracy.
Lack of courage when the time comes is not a legal excuse...
It makes perfect sense too, on brief reflection.
MOST of the time, a person arrested is arrested with probable cause. That person exposes his defense strategy at an examining trial, so typically skips the examining trial.
A person arrested WITHOUT probable cause is usually released quick enough to not justify further legal action.
Arrest WITHOUT probable cause, and with extended jail time, are exceptional, maybe unprecedented. The legal history for this sort of event is apt to be sparse or flat out non-existent.
The evidence is what it is. The courts are going to have to deal with it, to the extent the parties are willing to push it.
I wonder if Texas procedure allows for an appeal from Examining trial. I believe it does, as a matter of principle, because the ONLY issues at examining trials are matters of law. The question is, is the allegation sufficient?
“Well, the video will make clear whether he ran and hid as soon as the trouble started. All we have to do is look at that.”
I have seen cases where a person engaged in a robbery ran when the shooting started and his partner killed and he was still charged with murder.
Judge Carroll said examining trials are governed by the Rules of Civil Procedure.That's true for civil cases, but not for criminal cases. The Texas Code of Criminal Procedure also covers Examining Trials, and has it's own section numbering, which differs from the section numbering in Texas Civil Procedure.
Art. 2.11. EXAMINING COURT. When the magistrate sits for the purpose of inquiring into a criminal accusation against any person, this is called an examining court. ...CHAPTER 11. HABEAS CORPUS
Art. 11.56. EFFECT OF DISCHARGE BEFORE INDICTMENT. Where a person, before indictment found against him, has been discharged or held to bail on habeas corpus by order of a court or judge of competent jurisdiction, he shall not be again imprisoned or detained in custody on an accusation for the same offense, until after he shall have been indicted, unless surrendered by his bail. ...Art. 11.64. APPLICATION OF CHAPTER. This Chapter applies to all cases of habeas corpus for the enlargement of persons illegally held in custody or in any manner restrained in their personal liberty, for the admission of prisoners to bail, and for the discharge of prisoners before indictment upon a hearing of the testimony. Instead of a writ of habeas corpus in other cases heretofore used, a simple order shall be substituted. ...
CHAPTER 16. THE COMMITMENT OR DISCHARGE OF THE ACCUSED
Art. 16.01. EXAMINING TRIAL. When the accused has been brought before a magistrate for an examining trial that officer shall proceed to examine into the truth of the accusation made, allowing the accused, however, sufficient time to procure counsel. In a proper case, the magistrate may appoint counsel to represent an accused in such examining trial only, to be compensated as otherwise provided in this Code. The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case. If the accused has been transferred for criminal prosecution after a hearing under Section 54.02, Family Code, the accused may be granted an examining trial at the discretion of the court.
Art. 16.17. DECISION OF JUDGE. After the examining trial has been had, the judge shall make an order committing the defendant to the jail of the proper county, discharging him or admitting him to bail, as the law and facts of the case may require. Failure of the judge to make or enter an order within 48 hours after the examining trial has been completed operates as a finding of no probable cause and the accused shall be discharged.
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