A Dallas attorney who represents Hewitt biker Matthew Clendennen filed an emergency appeal Wednesday seeking to lift a gag order a judge imposed in Clendennen’s case Tuesday.
Clint Broden, in his emergency petition for writ of mandamus filed with Waco’s 10th Court of Appeals, argues that because his client has not been indicted, 54th State District Judge Matt Johnson had no jurisdiction to impose a gag order, which bars Broden, prosecutors, witnesses and police officials from publicly discussing Clendennen’s case.
The gag order violates Clendennen’s right to free speech, and the judge’s findings to adopt the gag order are “insufficient to establish that any unidentified pretrial publicity in this case has risen to the level that it poses an imminent and severe harm to a fair and impartial trial,” Broden’s petition says.
Given the unique nature of the case, “which has 176 identical companion cases,” a gag order is likely to be ineffectual and is not the least restrictive means to prevent harm, Broden’s petition says.
“Whether real or perceived, there is a noxious odor surrounding the investigation by the Waco police and the McLennan County District Attorney’s office with regard to the Twin Peaks shooting and the wholesale arrest of 177 motorcyclists based on identical, fill-in-the-name criminal complaints,” Broden claims in his petition.
The petition charges that Johnson abused his discretion by imposing the gag order.
Release of video
While Broden argues that Johnson has no jurisdiction in the case, his appeal contains no jurisdictional questions regarding the judge’s granting of his request for a copy of video from the Twin Peaks franchisee of the May 17 shootout, in which nine bikers were killed and 20 others were wounded.
But the judge placed the release of the video under a protective order, preventing Broden from making the video public.
Broden complains in his emergency petition that Johnson’s gag order does not cover the parties in the other 176 biker cases; the attorneys, including the DA’s office, in those cases; law enforcement as it relates to the other 176 cases; and witnesses in those cases.
Also, Broden’s motion says, the gag order is not clear whether it covers statements relating to a federal civil rights lawsuit Clendennen filed in Waco’s U.S. District Court and does not cover a Dallas County lawsuit filed by Don Carlos restaurant against Twin Peaks over loss of business after the shootout.
In response to Clendennen’s emergency appeal, the 10th Court could:
• Deny the petition outright;
• Seek a response from all interested parties, giving them time to file their responses; and/or,
• Issue a temporary order to instruct the judge not to enforce the gag order until the court considers the responses and rules.
If the 10th Court denies the petition, Clendennen then has the option of filing similar pleadings with the Texas Court of Criminal Appeals in Austin.