A retired state district judge from Travis County has been asked to preside over the examining trials of 20 bikers arrested in the May 17 Twin Peaks shootout after reports that a local judge questioned whether she could be impartial and declined to hear the cases.
Judge Billy Ray Stubblefield, administrative judge of the 26-county 3rd Judicial Region, said Friday evening that he is waiting to hear back from the judge to see if he will agree to hear the examining trials.
The judicial appointment becomes necessary after senior Judge Joe Carroll, of Bell County, recused McLennan County Justice of the Peace W.H. “Pete” Peterson last week from presiding over the examining trial of Hewitt biker Matthew Clendennen.
Stubblefield said it would have been “normal procedure” for Dianne Hensley, Peterson’s fellow Precinct 1 justice of the peace, to be appointed to hear the cases in Peterson’s place.
But Dallas attorney Clint Broden represented to Judge Carroll last week that Hensley told Waco attorney Robert Callahan that she would recuse her office because she was not sure if she could be impartial.
Hensley said this week that she does not recall saying she could not be impartial and said if Stubblefield decides to appoint her to preside over the examining trials, she would “have to do some research,” but would hear them.
Neither Hensley nor Peterson ever has conducted an examining trial, which normally is used by defense attorneys to get an early glimpse of prosecution evidence and to seek a determination that there was not probable cause to arrest their clients.
Hensley said she was in the middle of hearing some debt claim cases last week when Callahan came in and asked if she was going to be in town Aug. 10 if Clendennen’s case was transferred to her court.
“I told him I worked very closely with Judge Peterson and I hear all the gossip going around in the courthouse, so I don’t think I would be their first choice to hear the case,” Hensley said. “I would be afraid that there would be a perception that I would not be fair because I do work closely with Judge Peterson. But if Judge Stubblefield assigns it to me, I will hear it.”
Callahan said Tuesday he remembers Hensley telling him she would recuse herself if she got the appointment.
“She was very professional,” Callahan said. “But the only words I specifically remember she said was that she would recuse herself. She did have some sort of qualification or clarification, but I don’t remember what it was. It was something to the effect that she could not be impartial.”
No matter what Hensley told Callahan, it is clear that Broden told Carroll that Hensley said she would recuse herself because she thinks she could not be impartial. But Carroll has no authority to appoint Hensley or anyone else. That authority belongs to Stubblefield.
Stubblefield, of Georgetown, said his order will appoint the judge to preside over the Clendennen examining trial, but also gives him the authority to hear 17 other cases scheduled in Peterson’s court and those set in the courts of Justice of the Peace David Pareya and Waco Municipal Judge Chris Taylor.
Stubblefield said he did not seek a judge outside of McLennan County because of the widespread criticism of the way Waco police and McLennan County officials have handled the chaotic, complex case in which nine people were killed and 177 bikers were jailed on identical engaging in organized criminal activity charges under $1 million bonds.
‘Trying to be efficient’
“Not really,” the judge said. “I haven’t heard any negative comments or criticisms. It was just a matter of trying to be efficient with the use of the court’s time. The closer I got looking into it, the more I realized that this was a justice of the peace acting as a magistrate rather than as a justice of the peace. So I thought it would be most appropriate to handle it like we would any other recusal.”
Broden complained that Peterson set unreasonably high bonds and said he was doing so to “send a message” about the gravity of the incident. He also complained that Peterson signed off on what Broden and others have called “cookie-cutter, fill-in-the-blank warrants” for the bikers’ arrests.
Waco attorney David Deaconson was hired by the county to represent Peterson and to assist with Twin Peaks-related motions, subpoenas and other legal matters. He also is serving as liaison between biker defense attorneys, the courts and Stubblefield.
He suggested to Stubblefield that an out-of-town judge might quell more criticism about what the bikers and their supporters are calling the unfair McLennan County justice system.
“If the administrative judge has graciously offered to give us assistance as far as a judge on all of this, I just think if we bring in one who can devote his time, we can get the process on the examining trial side done much more efficiently and there isn’t any concern, be it from the media, or the public or whomever, that the county is totally trying to scheme against these people,” Deaconson said.
Deaconson, a former McLennan County prosecutor, said there have been maybe three or four examining trials conducted in McLennan County in the past 30 years. He added that with the Michael Morton Act, which requires prosecutors to provide defendants and their attorneys with all evidence, including favorable evidence, against them, examining trials are not needed unless defendants are in jail and seeking another way out.
Only three of the 177 bikers arrested remain jailed, and they have charges from other counties pending.
The following bikers arrested after the May 17 shootout at Twin Peaks in Waco have filed to have examining trials:
Matthew Clendennen, Hewitt
Daniel Pesina, San Antonio
Mitchell Bradford, Gordon
Juventino H. Montellano, San Antonio
Joseph Ortiz, San Antonio
Richard R. Donias, San Antonio
Lawrence Garcia, San Antonio
John Guerrero, San Antonio
Tom M. Mendez, San Antonio
John R. Wilson, Waco
Clayton D. Reed, Burleson
Matthew R. Folse, Dallas
Morgan J. English, Brenham
William H. English, Brenham
James A. Venable Jr., Mart
Royce Van Vleck, San Antonio
Drew David King, Dripping Springs
William C. Aikin, Talco
Jimmy Lee Pond, Austin
Thomas P. Landers, Georgetown