Posted on 06/25/2015 4:33:52 PM PDT by Prolixus
The city of Waco is seeking to quash a subpoena issued to the former Waco Twin Peaks franchise holder for video of the May 17 shootout that left nine bikers dead and 20 wounded.
Dallas attorney Clint Broden, who represents Matthew Alan Clendennen, a member of the Scimitars Motorcycle Club, obtained a subpoena after speaking with Patrick Keating, a Dallas attorney who represents the Twin Peaks franchisee.
Broden said he sought the video to help him prepare for an Aug. 10 examining trial set in Clendennen’s case in McLennan County Justice of the Peace W.H. “Pete” Peterson’s court.
The subpoena for the video was issued on Monday. On Thursday, Assistant City Attorney Judith Benton filed a motion asking 54th State District Judge Matt Johnson to throw out the subpoena, saying that Broden was trying to “circumvent the criminal discovery rules by seeking records in a criminal case from a non-party.”
“It is troubling that the city of Waco would go to such lengths to suppress this video,” Broden said in a release Thursday. “The Waco police have repeatedly given the public contradictory information about the events at Twin Peaks and have said that the video will support its current version of the facts, yet they have now taken this extraordinary measure to interfere with the subpoena process.”
Broden said Keating had previously agreed to accept service of the subpoena on behalf of his client and to produce the video in compliance with the subpoena by 9 a.m. Friday.
“It is important to note that this video is the sole property of the Waco Twin Peaks franchisee and does not belong to the city of Waco, the Waco police nor McLennan County,” Broden said.
Benton said Thursday she was contacted by Twin Peaks representatives about the subpoena, prompting her motion to quash. Her motion claims Broden’s subpoena is contrary to the rules of discovery governing criminal cases.
“On its face, the subpoena at issue exceeds the scope of any legitimate purpose and is an obvious attempt to conduct pretrial discovery. Therefore, it should be quashed,” the motion says.
Broden says in a response to the city’s motion that the video would support Clendennen’s defense that he did not “participate in nor encourage any violence” at Twin Peaks.
“The video would therefore support Mr. Clendennen’s argument that there is no probable cause in his case and that he should not be held on restrictive bond conditions,” Broden’s motion argues.
The Tribune-Herald has filed a Public Information Act request seeking to obtain the video. The city of Waco has opposed that request, arguing that it is not subject to disclosure at this time because of the ongoing investigation. The matter has been sent to the Texas Attorney General’s Office for a ruling.
Of course not. His lawyer is challenging the probable cause on which the arresting office based his arrest of Clendennen. The lack of probable cause to arrest and incarcerate 177 people is one of the violations of the Constitution that occurred in Waco on 5/17.
Broden said he would be at the courthouse in downtown Waco Friday morning, along with lawyers for Twin Peaks, to either get a copy of their video as promised, or to have hearing on the City of Waco’s motion to quash the subpoena for the footage.
from
http://www.kcentv.com/story/29410760/bikers-subpoena-quashed
It is interesting that, according to Broden, the TP attorney has custody of a video that the police could not get their hands on.
“video would show that he did not conspire”
Wondering how the video could show he did not “conspire”?
“video would support Clendennen’s defense that he did not “participate in nor encourage any violence” at Twin Peaks.”
But for probable cause for conspiracy, he need not be alleged to have personally committed a criminal act.
Don’t blame me or the cops or the DA, that is the law under which he was charged.
Also note that the Cossacks and Scimitars need not have been previously listed as an organized criminal gang for the conspiracy charge. The requirement is three or more etc., not three or more from an organization on a specified list.
I have said before, I am no fan of RICO-type statutes, and deem they would not be necessary in a civilized free society in which there were no organized criminal gangs preying upon innocent citizens and society. The modus operandi of criminal gangs themselves made it seem necessary for legislation to reach persons inside the criminal organization and bring them to justice.
Not liking the law itself is one thing. Legitimately wondering how it might be applied to the events at Waco is another thing.
I am interested in any light which can be shed on the later.
You’re right. The conspiracy piece is worded in such a way that wearing certain patches is conspiring. So, perhaps I was wrong in guessing what Broden wants to do with the video toward exonerating his client.
After all, The DA can keep them all on the hook for 90 days while they investigate this massive conspiracy that 177 cooked up to meet on a Sunday morning and murder people under the watchful eyes of the Waco PD, the BATF and the Texas DPS.
But those laws were intended to be applied to criminals who had already done criminal acts or ordered others to do criminal acts. We know that 115 of the 177 arrested on 5/17 had no convictions, so in the law's eyes they are not criminals.
There is a guide from a Texas DA on when the Texas Organized Crime law may and may not be ADDED to other charges. In every example. it is an added charge. Seems to me that Waco got the cart before the horse. Charge everyone with conspiracy and no one with anything else.
Three’s the key … but you’ll need more
It is this very fact that bothered me from the very start and continues to do so.
“First, how do you prove intent, and secondly, whose intent must you prove?” from your link.
Which to me, brings us back to the point: what were the Cossacks and their affiliates DOING at Waco? What was the organized entity’s INTENT in showing up at Twin Peaks?
Not to attend the Confederation meeting at 1pm presumably, since the Cossacks are not members; and they arrived at ~11 am.
To peaceably parley with the Bandidos? Yet they are seen presumably checking their weapons on the patio as a group of Bandidos (including that Club President) rolled in. The altercation started as soon as the Bandido President and his Sgt at Arms etc. rolled in.
So apparently the Cossacks were prepared for armed conflict, if not “expecting” it. So the Cossacks can be said to have “intended” to use firearms, at a restaurant in broad day light with civilians and LE present, if “they” deemed it “necessary”. 1% ers consider it necessary to fight against “disrespect”, to a Club President, to a Prospect, to any member who is threatened. Being prepared to use a firearm in those conditions goes beyond what civilians consider self-defense. One does not lawfully kill another person for “disrespect.”
Then, what did the individuals riding with the Cossacks to Waco intend? Some of them knew of and agreed with the intention above to prepare for use of deadly force.
Some such as this Scimitar claim they knew nothing about any imminent confrontation and did not agree with or intend either to commit or support any violent act, and presumably would not have agreed with it had they known.
So why DID they ride with the Cossacks that day? Not to attend the Confederation meeting because their groups were not members.
They were riding in some force — 60 to 70 of them. Just for a Sunday ride to Twin Peaks from other places in Texas to have Sunday brunch in Waco? Why Waco? If not because the Bandidos were meeting in Waco, why? It was no coincidence.
Was it a mandatory run? If so, the individual’s “intent” was to ride with the Cossacks because they were told to. This alone could be argued to show “agreement” with the group intent. “Ours not to reason why, ours but to do or die” - Charge of the Light Brigade.
Following orders of the gang leaders. One rode with the Cossacks, and it didn’t matter WHY they were called to ride to Waco in force — they would do it anyway, because as members they “agree” they can be asked / told to support the club without knowing specifically why they are called to do so.
So there you would have individual intent and agreement, aid and support (riding in numbers to support the Cossack intention). OR?
If the above passes legal scrutiny (which I don’t know), what about the rider who was innocent in his heart and conscious personal “intention” to do no harm? It seems to boil down, then, to why is he a Scimitar? Riding in support of a gang is like flying around and running into fly paper: you are stuck, along with all the other flies on the fly paper. Due to the nature of gang operation; due to the grasp of RICO-type laws.
No doubt in the individual hearings and trials, the individual’s previous record, character, etc. would be an important mitigating factor. But I don’t see how that makes the conspiracy charge itself inappropriate, nor the probable cause stated.
One does not have to “like” that —
And the answer to that question given at the link is based on putting the additional organized crime charge on those who had commuted the crime of rape. DONE THE CRIME.
Which to me, brings us back to the point: what were the Cossacks and their affiliates DOING at Waco? What was the organized entity’s INTENT in showing up at Twin Peaks?
The ones who were DOING crimes - knifing, punching, shooting, etc are, perhaps, legitimate candidates for the organized crime charge. Those seen fleeing or pulling up in the parking lot....no way.
When it's boiled to "guilt by association"I suspect the prosecution will have a huge task convincing a jury that it's even remotely related to the concept of "innocent until proven guilty."
Sorry, I'm calling BS on this. You are trying to deflect this by claiming serious felonies.
In Texas, all felonies go to a grand jury. And in this particular case, the charge in question is indeed a felony.
As someone else has posted: A prosecutor may immediately seek an indictment, if someone exercises their right to an examining trial. But, that means the prosecutor must "show their hand" to a grand jury, and will have to show the evidence against Clendennen, individually.
“Seems to me that Waco got the cart before the horse. Charge everyone with conspiracy and no one with anything else.”
I hear you.
There are nine deaths ruled homicide. Homicide was committed.
Does the statute allow for someone to be charged with conspiracy to engage in organized criminal activity, without specifying who committed the homicides? Asking, hope someone knows . . .
One of the Bandidos according to Ledbetter, murdered two Cossacks. He is possibly the Bandido who was himself killed and if so, cannot be charged. Cannot his fellow Bandidos still be charged with conspiracy even though HE cannot be charged with murder because he is dead? His would be the specific criminal act to which they were conspirators . . .
“The ones who were DOING crimes - knifing, punching, shooting, etc are, perhaps, legitimate candidates for the organized crime charge.”
Yes, engaging in organized criminal activity.
But what about conspiracy to engage in organized criminal activity?
Not in any way trying to hound you; I don’t know but someone has to know, and maybe that person can answer these questions.
“As someone else has posted: A prosecutor may immediately seek an indictment, if someone exercises their right to an examining trial. But, that means the prosecutor must “show their hand” to a grand jury, and will have to show the evidence against Clendennen, individually. “
Only if he is indicted. That is standard discovery process.
I think you are asking the right question, and I don't pretend to authoritatively know the answer. But, I think there's a clue in the statute:
I see two possibilities:
(d) "Criminal street gang" means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.
Is wearing a patch sufficient to prove agreement to "conspire to commit a crime"? How high is the bar on "continuously or regularly associate in the commission of criminal activities"? As others have posted, the Bandidos are the only group classified as "outlaw" by the DoJ. Does Texas have a different list?
don-o posted an interesting article from the Texas DA Association, and it appears to address some of these points. I haven't tried to parse and digest the entire thing.
This case just gets more and more interesting. I have a feeling it is going to set some precedents, when all is said and done. My only question is whether they will be good or bad precedents.
Let's say that at least three people agreed (conspired) to commit murder or do some illegal act of intimidation on 5/17, and at least one did indeed commit murder; and the murder charge is proven. (Perhaps all three are charged with the same murder - that is beside the point.) There is the overt act. All three are guilty of conspiracy (and perhaps murder).
If I am following you, you are thinking (hoping?) that merely coming to a location where the conspirators carry out their conspiracy and murder is sufficient probable cause to charge them all with conspiracy?
“If I am following you, you are thinking (hoping?) that merely coming to a location where the conspirators carry out their conspiracy and murder is sufficient probable cause to charge them all with conspiracy? “
Yes. From the statute:
“An agreement constituting conspiring to commit may be inferred from the acts of the parties.”
Spot on!
The sheer magnitude of what the DA bit off is still mind boggling to me.
“The sheer magnitude of what the DA bit off is still mind boggling to me.”
Seems to me he didn’t ‘bite off’ anything. It was dumped in his lap.
“that merely coming to a location where the conspirators carry out their conspiracy and murder is sufficient probable cause to charge them all with conspiracy?”
Not merely coming to the location, or being there, but coming in an organized group in order to meet there with other members of the organized group. Said travel to said location being pretty convincingly in order to make a “show of force” rather than hold a picnic.
I am wondering. Why would I be hoping?
“An agreement constituting conspiring to commit may be inferred from the acts of the parties.”
Sorry, no. As I posted above, simply showing up at the restaurant doesn't mean anything unless you can prove that the accused knew that was the intent.
The fact that a crime occurred isn't sufficient proof. You have to show prior knowledge of the intent to commit a crime.
And, as the article posted from the Texas DA association explains: you have to show a participation in "a continuing course of criminal activity", not a "single spontaneous episode".
Because of your often repeated laments that the problems around criminal biker gangs is so massive and ominous that the presumption of innocence gets very short shrift. Rather - again my hearing - let's go to any lengths necessary to broaden the concept on "intent" to make sure we can catch 'em all. Because they just might someday do a criminal act.
They have not been able to convict 115 of those charged with committing any crime before 5/17. Why does that NOT raise a red flag?
No, a grand jury has the power to subpoena witnesses and review the evidence. Whether they choose to do so is up to them.
But, as Sol Wachtler (in)famously claimed: "district attorneys now have so much influence on grand juries that "by and large" they could get them to "indict a ham sandwich."
It will be interesting to see if this grand jury takes their job seriously, or just rubber-stamps the indictments.
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