A lawyer representing biker Matthew Alan Clendennen argued Wednesday that McLennan County District Attorney Abel Reyna should be disqualified from prosecuting Twin Peaks cases because he lied at a hearing, overstepped his authority and has a financial interest in convicting bikers who have sued him.

Dallas attorney Clint Broden and Assistant District Attorney Sterling Harmon took opposing sides Wednesday during oral arguments in front of the three-judge panel of Waco’s 10th Court of Appeals.

Broden is appealing an October ruling by 54th State District Judge Matt Johnson that denied his motion to disqualify Reyna, who went to the scene and advised Waco police commanders about how to proceed after the deadly May 17, 2015, shootout at Twin Peaks.

Broden is asking the intermediate appellate court to issue a writ of mandamus, which would order Johnson to disqualify Reyna and appoint an “independent and unbiased” prosecutor to take over the case.

Reyna “crossed the line” by ordering the mass arrests of 177 bikers on identical charges that day, Broden argued, usurping the judgment of Waco’s top police commanders with 100 years worth of collective law enforcement experience.

The justices asked Broden if he had any legal precedent to determine exactly where the line is for prosecutors, who routinely give advice to police agencies, assist them with drafting search or arrest warrants and other legal matters.

Broden paraphrased a famous line from former U.S. Supreme Court Justice Potter Stewart, who in 1964 while reviewing an obscenity case, said, “I know it when I see it.”

“This is pornography,” Broden said. “This is so far over the line that it’s ridiculous. That might explain why there is no case law on it.”

Former Waco Police Chief Brent Stroman was out of town on the day of the shootout, and his top commanders were keeping him informed by telephone. The officers had started a capital murder investigation and were identifying the bikers as potential witnesses, not defendants, Broden argued. That changed when Reyna arrived, he said.

Stroman testified at the hearing that it was his ultimate call to arrest the bikers. However, he said he was not clear after speaking to Reyna that they would all be named in identical engaging in organized crime complaints.

“(Stroman) might have said the word yes, but it is clear who was running the show,” Broden said. “It is clear Abel Reyna was the clear puppet master in this. He turned my client, who merely rode a motorcycle to Waco and ordered a hamburger, from a witness into a defendant.”

Harmon countered that it is not unusual for prosecutors to advise police officers on legal aspects of cases and said he thinks Broden has a misconception about what a DA’s job entails.

“The DA has broad-sweeping authorities and powers,” Harmon said.

Broden charged that Reyna lied twice during the October hearing. He said either Reyna or Waco police Detective Manuel Chavez committed perjury at the hearing when they were asked about the preparation of the identical arrest complaints charging each biker.

Reyna testified he spoke to Chavez that night and cautioned him at length to make sure he read over the affidavit carefully. Reyna testified he told Chavez to make sure all “i’s” were dotted and all “t’s” were crossed and that he was comfortable swearing before a magistrate that the information was true.

Chavez testified he never spoke to Reyna that night.

Reyna also said he is indemnified by the county for any damages awarded in the 15 civil rights lawsuits filed against him, Chavez, Stroman and others by bikers in an Austin federal court. An attorney for the county’s insurance company said that is not correct.

“There is some reason why Abel Reyna is lying at these proceedings, and you have to ask yourself why,” said Broden, who charged Reyna with lying on at least three occasions during his 20-minute argument.

The final reference brought a warning from 10th Court of Appeals Chief Justice Tom Gray about what the justice called Broden’s use of disparaging terms to refer to Reyna.

Harmon said Broden was “creating the problem” by his pledge to call Reyna as a witness while seeking his disqualification. There are a plethora of other witnesses who could be called who would testify to the same information that Reyna would, Harmon said.

The justices gave no indication on when they might rule on the issue.

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