A judge on Friday rejected a motion from former biker Matthew Clendennen to dismiss the charges against him on a claim his right to a speedy trial has been violated.
Judge Matt Johnson of Waco’s 54th State District Court considered a variety of motions Friday from Clendennen’s attorney, Clint Broden, including a motion to disqualify the McLennan County District Attorney’s Office because it has a tape recording of Clendennen and Broden speaking by phone while Clendennen was still in the county jail.
Broden alleges the DA’s office should be disqualified from the case or the indictment should be dismissed because Clendennen’s right to attorney-client privilege was violated by the jail recording.
Johnson took the motion under advisement, saying he wants to listen to at least a portion of the tape to determine the extent of the damage, if any.
Broden said the existence of the tape was revealed by prosecutors, along with three terabytes worth of other evidence the DA’s office provided to Twin Peaks defendants.
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Prosecutor Michael Jarrett said his office has not listened to the tape. He said once he learned the tape exists, he instructed prosecutors and staff members in his office not to listen to it or those involving other Twin Peaks defendants. Jarrett said there were 8,557 phone calls recorded from Twin Peaks defendants in the weeks and months following the May 17, 2015, shootout that left nine dead and more than a dozen injured.
The judge instructed that the tape recordings from the jail be placed under a protective order from the court that prohibits prosecutors and law enforcement officers from listening to the conversations.
All outgoing calls from jail inmates are recorded, but attorneys can make arrangements to have private phone calls with their clients that are not recorded, a jail official said.
In arguing the speedy trial motion, prosecutor Brody Burks told Johnson that much of the delay in the Clendennen case was caused by Broden, who challenged two of Johnson’s earlier rulings with appeals to Waco’s 10th Court of Appeals. The progress of the case essentially was placed on hold while the intermediate appellate court was deciding those issues, Burks said.
In other issues, Johnson ordered the state to pare down its potential witness list after Broden complained that prosecutors gave him a list with 600 witnesses, plus 60 potential expert witnesses and 150 Twin Peaks co-defendants, from the state.
“That doesn’t really help me very much,” Broden said. “I doubt the state is going to call 600 witnesses and I would really like to have a reasonable number to work with.”
Broden, like an attorney for biker Jacob Carrizal earlier this week, expressed concern over what they said was an overwhelming security presence at the courthouse. He said he doesn’t want his client to be prejudiced in the jury’s eyes the way a Bandidos defendant was recently in Fort Worth. Broden said officers and law enforcement vehicles ringed the courthouse and a tank was parked nearby in the Fort Worth case.
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Johnson told Broden and Casie Gotro, Carrizal’s attorney, that he will discuss security presence with the sheriff’s office and will try not to make the courtroom appear differently than during any other trial.
At Friday’s hearing, 10 deputies, five in plain clothes and five in uniform, were in the courtroom, and more were elsewhere in the courthouse. Johnson suggested the sheriff might increase the number of plain-clothes officers to lessen the visual effect while still maintaining the security level the sheriff deems appropriate.
Prosecutors have said for months that they want to try Carrizal, the 36-year-old president of the Dallas Bandidos chapter, first among the 154 bikers indicted in the shootout.
With last-minute delays in Carrizal’s case, including the recusal of 19th State District Judge Ralph Strother and a failed recusal attempt against Johnson, officials remain uncertain if Carrizal or Clendennen will be tried first. Johnson is now presiding over both cases and has set a pretrial conference Tuesday in Carrizal’s case.
Should officials decide to try Carrizal on Oct. 9, Clendennen will go to trial Nov. 6, officials said Friday. If Carrizal’s trial is postponed again, Clendennen will stand trial Oct. 9.