McLennan County District Attorney Abel Reyna is asking to postpone a Feb. 29 trial setting in the first Twin Peaks shootout case, saying that analysis of some evidence likely won’t be completed for a year.
In a 19-page motion for continuance filed late Tuesday afternoon, Reyna asked 54th State District Judge Matt Johnson to postpone the engaging in organized criminal activity trial of Matthew Alan Clendennen, 30, a member of the Scimitars motorcycle group from Hewitt.
Clendennen was arrested the day of the shootout that left nine people dead and at least 20 others wounded.
“As our Legislature has mandated, ‘It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done,’ ” Reyna’s motion says. “They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”
Several attorneys for the 106 bikers indicted Nov. 10 on identical charges, including Clendennen’s attorney, Clint Broden, have pushed for speedy trials for their clients.
But prosecutors have opposed such demands, saying they are not prepared for trial because evidence is still be processed by state and federal agencies.
Reyna’s motion cites prosecutors’ obligations under the Michael Morton Act, which requires full disclosure of state’s evidence — good and bad — to the defense.
Houston attorney Paul Looney, who pushed for a speedy trial for his client, Cody Ledbetter, a member of the Cossacks group from Waco, said at a hearing earlier this month that the trial delay is causing Ledbetter “serious and long-standing harm.”
Looney said Reyna’s office is “completely missing the boat” in its interpretation of the Michael Morton Act.
Prosecutors and defense attorneys are not required to postpone a trial while waiting for evidence that “might come about in the future,” Looney said.
If the state has provided the defense with all the evidence it currently possesses, then it is in compliance with the Morton Act and can go to trial as long as both sides realize other evidence could be forthcoming.
“I don’t know any judge around the state of Texas who would put up with that crap,” Looney said. “The DA has a right to wait as long as they want to go to the grand jury. But when they go to the grand jury, they need to be ready to give a person their trial. No one should be indicted and held in limbo. I hope the judges there won’t put up with that, but it appears that they are going to. A person has the absolute right to be acquitted and then go on about their life and business. If you don’t have the evidence to convict, then you just don’t need to bring an indictment.”
Reyna did not respond to phone messages Tuesday.
As of Jan. 14, the state has inventoried and provided to defense lawyers 189 audio files, 1,938 video files and 18,348 documents and photographs in three rounds of discovery, the motion states.
The state anticipates at least two more rounds of discovery to be issued and is waiting for testing and analysis of ballistics, including bullet and fragment comparison, by the Bureau of Alcohol, Tobacco, Firearms and Explosives in Walnut Creek, California. The earliest possible completion date for that is in March, the motion says.
Also, firearm DNA analysis sent to the ATF in Washington, D.C., is expected to take up to one year to complete, the motion says.
“A tremendous amount of swabs were taken from the firearms,” according to the motion.
Other evidence to be analyzed includes:
• Nonfirearm DNA (swabs of nonfirearm weapons and other items of tangible evidence) submitted to the Department of Public Safety lab in Waco and possibly other DPS labs — expected to take up to one year to complete.
• Cellular phones in various stages of unlocking, processing and analyzing by Cellbrite and the Waco Police Department forensic team — unknown amount of time to complete.
• Social media analysis. More than 100,000 pages of communications via social media made by defendants and suspects, ongoing analysis by multiple agencies — unknown amount of time to complete.
• Grand jury testimony. Part of the ongoing grand jury investigation will be witnesses giving grand jury testimony — undetermined amount of time based on number of witnesses and prior non-compliance with grand jury subpoenas, which may necessitate the issuance of writs of attachment to compel witnesses to appear before the grand jury.
The term of the grand jury that returned indictments against 106 bikers in November was extended through March to continue the Twin Peaks investigation.
No date for its return has been set.