A Hewitt man indicted in the Twin Peaks shootout alleges his confidential relationship with his attorney was violated two years ago when their phone conversation was recorded at the McLennan County Jail.
Dallas attorney Clint Broden, who represents Matthew Alan Clendennen, 32, has filed a motion asking that the indictment against his client be dismissed or that the McLennan County District Attorney’s Office be disqualified from prosecuting the case for the alleged violation of attorney-client privilege.
“In my 30 years of practicing law, it is one of the most egregious violations of the attorney-client privilege that I have ever seen,” Broden said. “The district attorney’s office should be ashamed of themselves.”
McLennan County District Attorney Abel Reyna did not return phone messages Thursday.
Judge Matt Johnson of Waco’s 54th State District Court has scheduled a pretrial hearing in Clendennen’s case for Friday morning. Clendennen, a former member of the Scimitars group, is set for trial Oct. 9, but that trial date could be changed because of the recent postponement of the Twin Peaks case involving Jacob Carrizal.
Reyna has indicated he wants to try Carrizal first and said Wednesday after Carrizal’s trial was postponed that the state’s preparation time thus far has gone toward Carrizal’s case.
“We are ready to go and expecting to go and demanding to go on Oct. 9, and we were promised we were going to go,” Broden said. “We were absolutely told they are bringing in a jury panel on the (Sept.) 29th on this case.”
Broden said he discovered Clendennen’s call to him from the county jail was recorded because a copy of the recording was turned over to him by the DA’s office along with a massive amount of other materials from the Twin Peaks investigations.
“My position is the jail isn’t supposed to turn those recordings over to the prosecution,” Broden said. “This happened in Hunt County, and the Court of Appeals in Texarkana said it is a clear Sixth Amendment violation.”
The Sixth Amendment, among other things, guarantees the right to those charged with crimes to be represented by counsel and the right to a speedy trial.
Another of Broden’s motions also seeks to have the charges dismissed because of a speedy trial violation.
“In short, in the face of a serious breach of the attorney-client privilege, the Hunt County District Attorney’s Office in Woodruff ultimately did the honorable thing and recused itself from Woodruff’s prosecution,” Broden’s motion states. “The district judge even recused himself from presiding over Woodruff’s case to ensure that the attorney-client privilege remained sacrosanct.
“While not expected, Mr. Clendennen hopes that the McLennan County District Attorney’s Office will follow in the footsteps of its brethren in Hunt County and also do the honorable thing now that its breach of the attorney-client privilege has been discovered.”
Baylor law professor Brian Serr, who teaches advanced criminal procedure and criminal law, said dismissal or disqualification normally are not how those matters are resolved.
“Generally speaking, when prosecutors and police officers are involved in evidence gathering that violates constitutional rights, the remedy imposed by the courts is exclusion of the evidence and not dismissal of the prosecution or disqualification of a prosecutor,” Serr said.
Broden said Clendennen called him from jail, and he warned Clendennen at the time that the calls likely were being recorded.
“I assume in most jails that the calls are being taped, but I don’t expect them to turn it over to the DA’s office,” Broden said.
Capt. Ricky Armstrong, McLennan County Jail administrator, said the jail has an attorney phone call system in place. With proper arrangements, attorneys can call into the jail to speak to a client without being recorded. The inmate is set up in a room to speak with the attorney privately, Armstrong said.
Outgoing phone calls from inmates to attorneys are recorded. At the beginning of those outgoing calls, both parties are notified by a recorded message that the phone calls are being recorded, Armstrong said.
Prosecutors sometimes use the content of those recorded phone calls as evidence at defendants’ trials.
Broden also has motions pending seeking to quash the indictments against Clendennen and to suppress evidence from what he contends was Clendennen’s unlawful arrest.