McLennan County District Attorney Abel Reyna has asked the Texas Court of Criminal Appeals to overturn a ruling by Waco’s intermediate appellate court that lifted a gag order in the case of a Hewitt man arrested in the Twin Peaks shootout.
Reyna filed a petition for writ of mandamus and a motion for stay of writ of mandamus with the state’s highest criminal court Tuesday. Reyna is asking the court to rule that the 10th Court of Appeals was wrong last week when it ordered 54th State District Judge Matt Johnson to vacate a gag order he imposed in the case of Matthew Alan Clendennen.
The 10th Court’s order, issued Friday, gave Johnson seven days to lift the gag order. Johnson had not done so by Tuesday evening.
Clendennen was one of 177 bikers arrested May 17 after nine bikers were killed and 20 others were wounded in the Twin Peaks melee.
Reyna did not return messages left for him Tuesday.
In an emergency petition for writ of mandamus, Clendennen’s attorney, Dallas lawyer Clint Broden, argued that the judge had no jurisdiction to impose a gag order because his client has not been indicted. The gag order bars Broden, prosecutors, witnesses and police officials from publicly discussing Clendennen’s case.
The attorney alleged 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 said.
A number of media outlets and the Texas Criminal Defense Lawyers Association filed briefs with the 10th Court in support of Broden’s motion seeking an order for Johnson to lift the gag order.
Jeopardy to fair trials
In arguing that the gag order be continued, Reyna says the defendants’ rights to fair trials are in jeopardy because of “a danger of prejudice from pretrial publicity.”
“The enormity of the event at Twin Peaks may be unique in the number of victims, the number of co-defendants, the level of violence and its effect on a local community,” Reyna’s petition says. “In determining the propriety of the gag order, it would behoove this court to compare the underlying facts of this case with those of the cases cited in the parties’ brief presented to the 10th Court.
“The scale of the Twin Peaks incident dwarfs those of the cited cases. The trial court was justified in imposing all of the restrictions contained in the gag order.”
In appealing the gag order to the 10th Court, Broden said that 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.
“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 alleged in his petition.