F. Clinton Broden, defense attorney
Waco – Attorneys from throughout central Texas – including flamboyant former DA Vic Feazell – gathered at 9 a.m. in 54th Criminal District Court to watch a masterful performance of pre-trial filings, adroit appeal to public opinion, and a very sincere desire to get the best of a dire situation for a client living a nightmare in the wake of the Twin Peaks shootout of May 17.
As a lead prosecutor for the McLennan County DA’s Office explained, authorities are struggling to process evidence related to 9 dead bodies, 20 wounded by gunshot, and the cases against 177 persons charged with the conspiratorial offense of engaging in organized criminal activity aggravated by capital murder and aggravated assault, their bond originally set at $1 million.
Matthew Clendennen is a Baylor graduate who operates a lawn service franchise employing six workers. He’s a weekend motorcycle enthusiast who favors the V-Twin Harley Davidson and riding in company with others who fly the Scimitars patch.
When he wheeled into the parking lot at the local “breastaurant” and took his place at a patio table, he was there for a political meeting where he was looking for the freedom to associate with others who share his enthusiasms.
When shooting broke out – he never saw between which parties – he fled to the confines of the restaurant, where he hid from flying lead until Waco police officers told he and hundreds of others to prostrate themselves face down and await further instructions. Nearly three weeks later, his attorney, a Dallas lawyer named F. Clinton Broden, persuaded Judge Matt Johnson to lower his bail to $100,000, but Clendennen still struggles with the strictures of electronic monitoring which confine him to traveling only in McLennan County and a nightly curvew of 8 p.m., as well as a cost of $355 for the installation of the device and a $255 monthly user fee.
Clendennen wants relief, and his attorney made a motion to obtain the surveillance video captured by cameras belonging to the former franchise operator of the Twin Peaks location to demonstrate that he clearly participated in no acts of violence.
When attorneys for the City of Waco and prosecutors from the DA’s office arrived to argue their motions to quash a subpoena to discover the content of the video, courtroom dialogue between they and the judge became tense, the clock ticked more slowly, and Judge Johnson sat on the bench for long minutes – as long as a half-hour – in deep concentration as he read legal briefs of both state and federal cases with facts relevant to the discussion.
Broden began his argument by explaining to the judge, that when it comes to the question of “whether they (City of Waco and State of Texas) have standing to quash the subpoena – clearly they don’t…”
He expressed dismay that an Assistant City Attorney referred to “a document or video owned by a third party (Twin Peaks) as a record of law enforcement.”
It is the principle responsibility of the DA, he argued, to seek justice, and he referred to the City of Waco as an “interloper.”
Since there are “no stated cases,” he added, “It’s abundantly clear that interlopers have no standing.”
When the Assistant City Attorney ventured to say that Twin Peaks management has “turned over the evidence,” he pounced, saying he was not asking for evidence, only access to property owned by the former restaurant operators, who had previously and readily agreed to turn it over as of Friday, June 26.
Both attorneys for the city and the state argued that the defense team is “using the subpoena to get exculpatory evidence. They’re using it as a weapon of discovery,” according to Assistant DA Mark Parker. He said that “Our plan is to allow discovery en masse, not piecemeal.”
Parker alleged violation of the Texas Standard of Professional Conduct by Broden’s inclusion of polygraph questions and results, which drew a sharp retort from Broden with a similar counterclaim regarding the same issues of labeling what he terms the property of third party who is willing to turn the item over as evidence.
A fellow prosecutor, Mr. Luce, said “If everyone sees it now, we’ll have no idea whether they’re describing what they saw, or what they saw on the tape.”
Broden countered by saying, “I didn’t hear the city explaining how they have standing. We don’t want the evidence. We want the Twin Peaks property.”
He gave the judge two examples of his reasoning. “The Waco Police Department has video af an armed robbery on its Facebook page on the day it happened. What the state is telling you is just false…It’s like they are saying my client is guilty of a bank robbery and we ask how do you know. They say, ‘It’s on this video,” and when we ask to see it, they say, ‘You’ll just have to trust us.’”
Judge Johnson agreed with the state by saying he believes secrecy is important to “protect the process” of criminal investigation and litigation.
He denied the City of Waco’s motion to quash the subpoena, then ruled that the state’s motion to quash was denied, but granted their demand for withholding the depiction of events from the general public.
“I’m going to impose a protective order for no dissemination in any way.” Only opposing counsel and staff members, as well as expert witnesses may view the video, he ruled.
He further imposed a gag order on all attorneys, ruling the attorneys must remain silent about the case in any public pronouncements, for the duration of the trial, or until he lifts the gag order.
Broden objected, and with genial bonhomie, Judge Johnson said “You can always appeal…The 10th District Court of Appeals is on the fourth floor. I’ve found out it’s not far away,” he said, with a glance at the ceiling, a smile discernible in his tone of voice.