A supplemental pleading to the 10th District Court of Appeals cites those remarks as evidence a gag order is unconstitutional and unworkable, according to the lawyer who filed the court papers.
“Mr. (Matthew) Clendennen and his counsel are subject to the gag order entered by the Judge of the 54th District Court, Matt Johnson, and cannot publicly speak to this matter of grave public concern to our justice system. Nevertheless, the agent for Judge Peterson is permitted to give statements to the press at will,” wrote F. Clinton Broden, his attorney.
Waco attorney David Deaconson said in a news story about the search for Peterson’s replacement following his recusal in an examining trial to discover probable cause in Clendennen’s case that there is a belief that “the county is totally trying to scheme against these people” is unfounded and that “examining trials are not needed unless defendants are in jail and seeking another way out.”
On the contrary, Broden wrote, Clendennen is seeking an examining trial so that “an innocent person can be promptly cleared of criminal charges wholly lacking in individual probable cause.”
Judge Peterson charged the 177 defendants arrested on a “fill-in-the-blank” affidavit of warrantless arrest in which only the person’s name differered from any of the others. The only allegations of probable cause are that the person so charged is a member of a “motorcycle gang” and was wearing distinctive “colors” identified by the Department of Public Safety as those of an outlaw gang. Clendennen is a member of the Scimitars, a Cossacks support club that is not listed in the DPS manual published at Texas A&M University.
He declared that “this is yet another example of why the gag order in this case is unworkable and one that has arisen since the filing of the Original Petition” because “McLennan County judges (Judge Strother and Judge Peterson through his agent) are not bound by the gag order entered by Judge Johnson and continue to make statements to the media.”
Clendennen is “denied free speech rights to address why he is seeking an examining trial despite the fact that he is not ‘in jail and seeking another way out.’”
At the time when the first shot rang out at the Twin Peaks Restaurant on May 17, Clendennen ran from the patio area and hid inside the building during a bloody melee that left 9 dead, 20 wounded, and is one of 177 persons charged with the identical offense of engaging in organized criminal activity that led to capital murder and/or aggravated assault.
A first degree felony, the offense is punishable by a possible minimum of 5 years imprisonment or a maximum of a life term upon conviction.
“For the reasons set forth in the Petition and for the foregoing reasons, Mr. Clendennen submits that Judge Johnson’s gag order is unconstitutional and unworkable and that the Writ of Mandamus should be issued.”