Defense lawyer takes a base on balls in Twin Peaks pitchers’ duel

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Mano a Mano proceeds – Prosecutor Michael Jarrett chats with  defense lawyer F. Clinton Broden following recusal of Judge Pete Peterson

Six Shooter Junction – A Big D barrister assured his client will get a chance to have the probable cause of the charges against him examined at trial prior to a Grand Jury’s scrutiny.

In a favorable ruling on a motion to remove the magistrate who charged Matt Clendennen with the capital conspiracy charge of engaging in organized criminal activity that lead to murder, F. Clinton Broden furthermore assured his client that a new assignment of his case to a court of record for the purpose of an examining trial will be under the control of the Third Judicial Region Administrative Judge, Billy Ray Stubblefield, who sits at Georgetown in Williamson County.

Examining trials are very rare in the twin Criminal District Court jurisdictions of McLennan County, according to courtroom arguments made by First Assistant District Attorney Michael Jarrett.

During a tense hearing before retired visiting Judge Joe Carroll of Belton, he said that in five years of local criminal prosecution, he has seen only one examining trial prior to indictment. He also remarked that his associate, Assistant District Attorney Mark Parker, has seen only two in 27 years of experience as a prosecutor in McLennan County.

Judge Carroll acknowledged in remarks as he opened the hearing that in hearings such as the one in which he presided on Thursday morning, July 23, “The rules of evidence are fairly relaxed.”

He told both Jarrett and Broden, “I’ll be glad to hear whatever you have to say.”

As the hearing unfolded, he reminded both advocates several times that his assignment as ordered by Judge Stubblefield was to rule solely on whether Justice of the Peace Pete Peterson should remain on the case in an examining trial tentatively scheduled for August 10.

These cases can actually be brought on affidavits,” he added. A ruling may be made on the basis of those affidavits prior to a presentation to a Grand Jury.

Jarrett replied to the judge, saying, “We would allow the defendant to take leave of this court to seek his hearing in any other court.”

Broden countered his statement, saying “That ship has sailed…” He explained that “I don’t want to be running around at this late date looking for another Court to file this (case for an examining trial)…”

The rules governing such examining trials allow they may be heard in any court of record, including Municipal Courts, the Judge agreed.

As it turned out, the proceeding was mistakenly filed in the Precinct 1 Justice Court, said Jarrett.

Broden agreed, saying that a person in the District Clerk’s office told him the case for the examining trial must be filed in the Magistrate’s Court in which charges were filed.

Jarrett sought to explain how a clerk could make such an error. There are so few of them sought, and even fewer of those are granted, he said.

Once you have an indictment, there’s no more examining trial,” said Judge Carroll. Broden said that though there are many examining trials held in Dallas, where he normally practices criminal defense law, “I have heard of judges refusing to hear examining trials.”

Judge Carroll said examining trials are governed by the Rules of Civil Procedure. Rules 520 through 528 require the reasons an examining trial may be denied, and that they should be filed in the nearest court of record.

Broden then sent an associate attorney out of the courtroom to the office of Judge Hensley, which is located right next door. When he returned, he told the Court he had learned that Judge Hensley would be available on the date scheduled for the examining trial, but she would immediately recuse herself.

Broden again spoke on behalf of his client, a member of the Scimitars Motorcycle Club who, unarmed, ran away from the sounds of a gunfire and hid inside the Twin Peaks Restaurant as soon as a scuffle between Cossacks and Bandidos that led to the shooting deaths of 9 and wounding of 20 broke out on May 17. He fled as soon as he heard the first gun shot, and has been described by his attorney as a “witness to something he never saw.”

Broden told the Judge, “You are not Judge Johnson. You can’t give me permission to file for an examining trial in his court.”

Judge Carroll remained resolute.

He said, “I have to make a ruling on the case before me. What happens after that doesn’t concern me.”

He granted the motion for the recusal of Judge Pete Peterson, making reference to the exhibits attached to the motion detailing his improprieties by speaking to the media about the allegations contained in charging instruments he signed.

Based on that, I’m gong to grant the recusal and turn it over to the Regional Administrative Judge (Billy Ray Stubblefield).”

All attorneys and the defendant in the unindicted case of State v. Matthew Clendennen remain under a gag order until further notice.

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