Case Information
*1 WR-83, 719-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/14/2015 12:43:04 PM Accepted 9/14/2015 2:24:37 PM ABEL ACOSTA CLERK TEXAS COURT OF CRIMINAL APPEALS _________________________ CASE NO.
WR-83,719-01 _________________________ IN RE STATE OF TEXAS EX REL. ABELINO REYNA Relator ________________________________ Trial Cause No. 2015-1955-2 th In the 54 District Court, McLennan County
Honorable Matt Johnson, Presiding Appellate Cause No. 10-14-00235-CR th 10 Court of Appeals
Waco, Texas ________________________________ BRIEF OF REAL-PART-IN-INTEREST MATTHEW ALAN CLENDENNEN ________________________________ F. CLINTON BRODEN TX Bar No. 24001495 Broden, Mickelsen, Helms & Snipes, LLP 2600 State Street Dallas, Texas 75204 (214) 720-9552 (214) 720-9594(facsimile) Attorney for Matthew Alan Clendennen *2 IDENTITY OF PARTIES AND COUNSEL Relator: Abelino Reyna
Counsel for Respondent: McLennan County District Attorney
219 N. 6th St Waco, Texas 76701 Real Party in Interest: Matthew Alan Clendennen Counsel for Real Party in Interest: F. Clinton Broden
Broden, Mickelsen, Helms & Snipes 2600 State Street Dallas, Texas 75204 Respondent: Court of Appeals for the Tenth District
501 Washington Ave. Waco, Texas 76701
INTRODUCTION
Relator, Abelino Reyna, claims to seek mandamus in this case in order to preserve “the paramount importance [of] the trial rights of Mr. Clendennen....” See Petition for Writ of Mandamus and Motion for Stay of Writ of Mandamus (“State’s Pet.”) at 13. The government’s claim of altruism is eerily similar to the oft-suspect phrase, ‘trust me I am from the government and I am here to help you!’ The Tenth Court of Appeals quickly and unanimously saw through Relator’s canard. Now Relator tries to persuade this Court of his benevolence. [1]
This case began after 177 motorcyclists were rounded up using “fill-in-the- name complaints” where the alleged probable cause was based almost exclusively on the exercise of the right of freedom of association. Next, the Waco Police and the Relator himself held multiple press conferences before local, national and international media designed to scare the public with horror stories of roving “biker gangs.” Then, Relator’s office requested a gag order limiting the right to free speech [2]
*4 by Mr. Clendennen and his representative. Moreover, in a perfectly orchestrated plan, Relator’s office requested the gag order ten minutes before a totally unrelated hearing with no notice to anybody so that the State’s statements to the same media groups it had no problem speaking to for several weeks about “biker gangs” could go unchallenged. [3]
It is only through the strong protection of free speech rights and the “sunlight” provided by the media that Waco and McLennan County citizens can fully evaluate what occurred at Twin Peaks, the tax dollars it cost, and the actions of their elected officials. Likewise, it is only through robust debate that these citizens can determine whether, in light of the across the board $1,000,000 bonds set in this case by a non- lawyer justice of the peace in order to “send a message,” the citizens are satisfied [4]
with the law providing that justices of the peace need not have any formal legal training or whether they believe the legislature should be lobbied to require justices of the peace to have law degrees. Only the strong protection of free speech and a strong media will provide citizens with the background to make these types of *5 evaluations that are imperative to democracy. Indeed, unlike the State which believes the enormity of this case, albeit one of its own making, justifies keeping the public in the dark (except for the “facts” Relator wanted the public to hear in the days following the incident), Mr. Clendennen believes that the enormity of this case and the issues involved counsel strongly against the gag order. [5]
In sum, it should be obvious to even the casual observer (and was likely apparent to the Court of Appeals) that what the State sought to do in this case was to fill the public’s mind with pictures of “outlaw biker gangs” and, only when it believed that it sufficiently accomplished that task, requested a gag order. It now seeks to delay the vacating of the gag order as long as possible.
*6 TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL.............................................................2 INTRODUCTION......................................................................................................3 TABLE OF CONTENTS...........................................................................................6 TABLE OF AUTHORITIES.....................................................................................9 STATEMENT OF THE CASE................................................................................12 STATEMENT REGARDING ORAL ARGUMENT..............................................14 ISSUES PRESENTED.............................................................................................15 STATEMENT OF FACTS......................................................................................16
I. The State’s Publicity Machine..................................................................16
A. Patrick Swanton.............................................................................16 B. District Attorney Abelino Reyna...................................................17 C. Police Chief Brent Stroman...........................................................17 II. The Gag Order Motion.............................................................................17 III. The Gag Order........................................................................................18 IV. What the Gag Order Does Not Cover....................................................19 V. State Actors Keep Right on Speaking Despite the Gag Order so Only Mr. Clendennen is Effectively Silenced by Judge Johnson’s Gag Order.....20 VI. Th State’s “Statement of Fact” Presented to this Court.........................21 *7 SUMMARY OF THE ARGUMENT......................................................................24 ARGUMENT...........................................................................................................27
I. The Texas Supreme Court’s Holding in Davenport v. Garcia, 834 S.W.2d 73 (1992) Should be Applied to Gag Orders in Criminal Cases..................27
A. Introduction...................................................................................27 B. Davenport - Imminent and Irreparable Harm Standard.................28 C. Federal Law...................................................................................30 D. Conclusion.....................................................................................31 II. The Findings Supporting the Gag Order in this Case are Not Sufficiently Specific..........................................................................................................31 III. The Tenth Court of Appeals’ Conditional Grant of Mandamus Relief is Supported by the Law and Facts of this Case...............................................32
A. Introduction...................................................................................32 B. Texas Gag Order Cases.................................................................33 1. Davenport v. Garcia, 837 S.W.2d 72 (Tex. 1992)..............33 2. In re Benton, 238 S.W.3d 587 (Tex. App. - Houston) [14 th District] 2007]...........................................................................34 3. In re Graves, 217 S.W.3d 744 (Tex. App. - Waco 2007)...35 th
C. United States v. Ford, 830 F.2d 596 (6 Cir. 1987) and United States v. Wilson, 925 F.Supp.2d 410 (E.D.N.Y. 2013)......................36 D. Instant Case...................................................................................38 *8 1. The Findings Supporting the Gag Order in this Case are not Sufficiently Specific..................................................................38 2. The Tenth Court of Appeals’ Conditional Grant of Mandamus Relief is Supported by the Law and Facts of this Case...........................................................................................40 A. The Threshold Test as to the Danger of Pretrial Publicity Needed in Order to Impose a Gag Order Was Not Met in this Case.......................................................40 B. This Instant Gag Order Does Not Meet the Least Restrictive Means Test...................................................41 C. The Gag Order is Overbroad, Vague and Unworkable.....................................................................44 D. Conclusion................................................................46 IV. The District Court Did Not Have Jurisdiction to Enter the Gag Order in the First Place................................................................................................47 PRAYER..................................................................................................................49 CERTIFICATE OF SERVICE................................................................................50 CERTIFICATE OF COMPLIANCE.......................................................................51
TABLE OF AUTHORITIES Page Cases
Bridges v. California, 314 U.S. 252 (1941) ............................................................ 33 Casso v Brand, 776 S.W.2d 551 (Tex. 1989)..........................................................29 Cf. Vance v. Universal Amusement Co., 445 U.S. 308 (1980)...............................45 Channel 4, KGBT v. Briggs, 759 S.W.2d 939 (Tex. 1988).....................................29 th Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7 Cir. 1975), cert. denied
sub nom.................................................................................................................... 30 Clendennen v. Chavez, et al., No. 150CV0173 (W.D. Tex.)..................................20 Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995).........................................48 Cunningham v. Chicago Council of Lawyers, 427 U.S. 912 (1976)......................30 Davenport v. Garcia, 837 S.W.2d 73 (Tex. 1992)........................................... passim DC Waco Restaurant, Inc. /D/b/a Don Carlos Restaurant vs. Peaktastic Beverage, LLC D/B/A Twin Peaks Restaurant, et. al., No. DC-15-05787...............................20 Dickens v. Second Court of Appeals, 727 S.W.2d 542 (Tex. Crim. App. 1987)....27 Ex Parte Clear, 573 S.W.2d 224 (Tex. Crim. App. 1978)......................................48 Ex Parte Port, 674 S.W.2d 772 (Tex. Crim. App. 1984)........................................48 Gentile v. State Bar of Nev., 501 U.S. 1030 (1991)..........................................32, 47 th In re Benton, 238 S.W.3d 587 (Tex. App. - Houston [14 District]
2007)......................................................................................................34 , 35, 41, 44 *10 In re Graves, 217 S.W.3d 744 (Tex. App. - Waco 2007).....................28, 34, 35, 36 In re Houston Chronicle Pub. Co., 64 S.W.3d 103 (Tex. App. - Houston [14 th Dist.] 2001)..................................................................................................34, 38, 40 th In re Russell, 726 F.2d 1007 (4 Cir. 1984)............................................................31 th
Levine v. United States District Court, 764 F.2d 590 (9 Cir. 1985)...............30, 37 Operation Rescue - Nat’l v. Planned Parenthood of Houston & SE. Tex., Inc., 975 S.W.2d 546 (Tex. 1998)...........................................................................................31 O’Quinn v. State Bar of Texas, 763 S.W.2d 397 (Tex. 1988).................................29 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980)................................................................................................................37 San Antonio Express-News v. Roman, 861 S.W.2d 265 (Tex. App. - San Antonio 1993)........................................................................................................................28 Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86 (Tex. 2003).................................31 th United States v. Brown, 218 F.3d 415 (5 Cir. 2000).............................................30 th
United States v. Ford, 839 F.2d 596 (6 Cir. 1987)..............................30, 36, 41, 43
United States v. Irvin, 87 F.3d 860 (7 Cir. 1996)..................................................22 th rd
United States v. Scarfo, 263 F.3d 80 (3 Cir. 2001)...............................................30 United States v. Schroeder, 6:93-cr-00046 (W.D. Tex.).........................................46 United States v. Skilling, 561 U.S. 358 (2010)........................................................43 th United States v. Tijerina, 412 F.2d 661 (10 Cir. 1969).........................................31
United States v. Tsarnaev, No. 1:13-cr-10200 (D. Mass.).....................................46 *11 United States v. Wilson, 925 F.Supp.2d 410 (E.D.N.Y. 2013).............36, 38, 39, 43
Other Authorities Journal of the Constitutional Convention 62 (1875)....................................................29 Louis D. Brandeis, Other People’s Money - and How Bankers Use It (1914)............32 United States Constitution, Amendment I............................................................. passim Texas Constitution, Article 1, Section 8................................................................ passim Tex. R. of Prof’l Conduct Rule 3.07............................................................4, 18, 34, 46
STATEMENT OF THE CASE As noted above, Matthew Alan Clendennen was arrested, along with 176 other motorcyclists, at Twin Peaks restaurant in Waco, Texas on May 17, 2015 based upon a “fill in the name” criminal complaint. See State’s Appx. 1. [6]
Mr. Clendennen later sought, via a subpoena duces tecum , to obtain a copy of Twin Peaks’ own surveillance tape by filing a motion with the District Court. The subpoena was sought, inter. alia ., in connection with motions by Mr. Clendennen to amend his bond conditions. It was sought under the District Court case number which was assigned only in connection with Mr. Clendennen’s original Application for Writ of Habeas Corpus Seeking Bail Reduction from his $1,000,000 bond which had previously been granted. [7]
The McLennan County District Attorney’s Office filed a motion to quash the subpoena and approximately ten minutes before the start of the hearing requested a comprehensive gag order be entered. See State’s Appx. 3. Ultimately, the District Court ordered the video to be produced to the defense but entered the comprehensive gag order prepared by the McLennan County District Attorney’s Office. See State’s Appx. 4.
*13 On August 7, 2015, the Tenth Court of Appeals entered its unanimous opinion conditionally granting a Writ of Mandamus in this case in the event the District Court did not withdraw the unconstitutional gag order by August 14, 2015.
On August 13, 2015, this Court stayed the Court of Appeals’ Writ of Mandamus and ordered the parties to brief the three questions set forth in the Statement of Issues Presented (Issues I-III) infra .
STATEMENT REGARDING ORAL ARGUMENT The gag order in this case was put into effect more than two months ago.
Nevertheless, a gag order will normally entitle an aggrieved party to “emergency relief.” Davenport v. Garcia , 837 S.W.2d 73 (Tex. 1992).
Every delay in lifting the gag order continues to deprive Mr. Clendennen of his free speech rights under Article 1, Section 8 of the Texas Constitution and the First Amendment to the United States Constitution and plays directly into the State’s strategy of filling the public’s mind with pictures of “outlaw biker gangs” and misinformation and then demanding Mr. Clendennen’s silence.
In light of these practicalities, oral argument is waived.
ISSUES PRESENTED I. Whether the Texas Supreme Court's holding in Davenport v. Garcia , 834 S.W.2d 4 (Tex.1992) is applicable to gag orders in criminal cases.
II. Whether the findings supporting the gag order in this case are sufficiently specific.
III. Whether the Tenth Court of Appeals' conditional grant of mandamus relief is supported by the law and facts of this case.
IV. Whether the District Court had jurisdiction to enter the gag order in this case.
STATEMENT OF FACTS I. The State’s Publicity Machine
A. Patrick Swanton
On the day of the incident resulting in Mr. Clendennen’s arrest at the Twin Peaks restaurant as well as on the following day, the Waco Police held at least five different press conferences before local, national and international media painting the indelible image that all members of motorcycle clubs were actually members of “biker gangs” and that those in Mr. Clendennen’s position were “gang members.” For example, Patrick Swanton, the Waco Police spokesperson, told the media:
• If you looked at the motorcyclists on that day “you would know they were not people you wanted to be around.”
• The motorcyclists were not at Twin Peaks to “drink beer and eat barbeque.”
• The motorcyclists all participated one way or the other in what happened at Twin Peaks.
• The motorcyclists came to Twin Peaks with “violence in mind.” In fact, Officer Swanton repeatedly told the hordes of media that this was the worst crime scene he and other member of law enforcement had witnessed in their careers that spanned several decades. Also, he described the incident as starting inside the Twin Peaks, however, that claim was later shown to be absolutely false when the Associated Press obtained a copy of the Twin Peaks video and reported on its *17 contents. See State’s Appx. 5 (videos B-D).
B. District Attorney Abelino Reyna
Not to be outdone, on May 21, 2015, Relator Abelino Reyna gave an eighteen minute television interview featuring sound bites in which he told the media:
• Based on what he saw, nothing was telling him that all 177 motorcyclists were not guilty.
• The motorcyclists were guilty because they were not “acting like victims.”
• “I'll bet on our own gang before I bet on their gang."
• The motorcyclists were not at Twin Peaks “just to eat lunch.” • The motorcyclists would not get away with what they did “not in this county, not on my watch.”
Id. (Video A).
C. Police Chief Brent Stroman
Keeping up, on June 12, 2015, Waco Chief of Police Brent Stroman gave a press conference in which he repeatedly reiterated that the police had probable cause to arrest the 177 motorcyclist, that he had seen the video of what happened and he wanted it released to the public because “it would show what happened.” Id . (Video E).
II. The Gag Order Motion
As noted above, the State filed its Motion for a Gag Order minutes before a *18 hearing on a motion to quash Mr. Clendennen’s subpoena duces tecum to Twin Peaks to produce a copy of its surveillance video. The entirety of the State’s argument in that motion was as follows:
The State further moves that the court impose a gag order on all parties as the defendant, through his attorney has stated that his intent is not limited to legal proceedings. In a KCEN television interview on June 25, 2015, Attorney Clinton Broden said, “if and when he gets the video, he will make it public. That’s the plan,” said Broden. The State requests that the Court order all parties involved in this case to strictly adhere to the letter and spirit of the Texas Disciplinary Rules of Professional Conduct governing Trial Publicity. Specifically all attorneys shall refrain from making “extrajudicial statements that a reasonable person would expect to be disseminate by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.” Tex. R. Prof’l Conduct Rule 3.07
See State’s Appx. 3. The only media attached to the motion was the KCEN article referenced in its motion. [8]
III. The Gag Order
The District Court’s gag order, prepared by the District Attorney’s Office, took judicial notice of:
1) the usually emotional nature of the issues involved in the case; *19 2) the extensive local and national media coverage the case has already generated; and
3) the various and numerous media interviews with counsel for the parties that have been published and broadcast by local and national media.
See State’s Appx. 4. Based upon this alone the District Court ordered a complete gag order on 1) the parties in the Clendennen case; 2) the attorneys in the Clendennen case; 3) law enforcement as it relates to the Clendennen case; and 4) any witnesses in the Clendennen case that previously made statements to law enforcement or the District Attorney’s Office.
IV. What the Gag Order Does Not Cover
What the gag order did not cover is almost as important as to what it did cover.
First, it did not cover:
1) the parties in the 176 other motorcyclist cases;
2) the attorneys, including the District Attorney’s Office, in the 176 other motorcyclist cases; [9]
3) law enforcement as it relates to the 176 other motorcyclist cases; and 4) any witnesses in the 176 other motorcyclist cases that previously made statements to law enforcement or the District Attorney’s Office.
*20 Next, the gag order did not cover the parties in the various civil litigation related to the Twin Peaks incident. [10]
V. State Actors Keep Right on Speaking Despite the Gag Order So Only Mr. Clendennen Is Effectively Silenced by Judge Johnson’s Gag Order After the entry of the gag order, McLennan County sat its grand jury that would consider Mr. Clendennen’s case and/or the actions of law enforcement in relation to the Twin Peaks incident. See Respondent’s Appendix 1. The foreperson of that grand jury is Waco Police Detective James Head who claimed he was “‘not really’” involved in the investigation including Mr. Clendennen’s case. Id At the time of the seating of this grand jury, Mr. Clendennen and his counsel were subject to the gag order entered by Judge Matt Johnson and could not publicly speak to this matter of th grave public concern to the justice system. Nevertheless, the Judge of the 19 District Court, Ralph Strother, gave media interviews in which he basically lauded Detective Head’s selection. Id . (“Who is better qualified in criminal law than somebody who practices it all the time?”).
*21 In that same news article Relator Abelino Reyna also went right on speaking despite the fact that his office requested the gag order. He told the media: “That’s the system. He was chosen totally at random, like the law says.” Id .
On or about July 28, 2015, an attorney hired by McLennan County to represent Justice of the Peace W.H. “Pete” Peterson made extensive comments to the Waco Tribune Herald regarding the possible appointment of an out-of-county judge for Mr. Clendennen’s examining trial following a finding that Judge Peterson must be recused. See Respondent’s Appendix 2. So again, while Mr. Clendennen and his counsel were subject to the gag order entered by Judge Johnson, the agent for Judge Peterson was permitted to give statements to the press at will.
VI. The State’s “Statement of Fact” Presented to this Court
The State’s Petition to this Court actually purported to give this Court “facts” of the case that it claimed are “facts” simply because these “facts” are “what [is] “commonly known through press reports....” See State’s Pet. at 7. The State then cited press conferences held by state actors to support these alleged “facts.”
For example, despite the fact that Mr. Clendennen belongs to the Scimitars Motorcycle Club , the State cited its own repeated press conferences in order to allow it to repeatedly refer to these “clubs” as “five outlaw biker gangs.” See State’s Pet.
at 1. Indeed, the word “gang” appeared in the State’s Petition ten times in an apparent attempt to prejudice this Court, just as the State initially attempted to prejudice the public against Mr. Clendennen. [11]
Not content to simply label the “clubs” to be “gangs,” the State also told the Court that it was a “fact” that “law enforcement intelligence had discovered that a ‘green light’ had been given by certain criminal organizations to take retribution *23 against law enforcement and/or members of rival gangs.” See State’s Pet. at 1, 8. Nevertheless, the only thing the State cited for this alleged “fact” was its own press conferences!
SUMMARY OF THE ARGUMENT I. The Texas Supreme Court's Holding in Davenport V. Garcia , 834 S.w.2d 73 (Tex. 1992) Should Be Applied to Gag Orders in Criminal Cases.
In announcing the gag order test in Davenport , the Texas Supreme Court performed a searching review as to the origins of Article I, Section 8 of the Texas Constitution and also consulted the opinions of this Court. Generally speaking and certainly on the facts of this case, which arises out of an incident producing both criminal and civil litigation, there is no sound justification for imposing a different standard on parties and attorneys in criminal cases than has been imposed on parties for the past twenty-three years under Davenport .
II . The Findings Supporting the Gag Order in this Case Were Not Sufficiently Specific .
The findings supporting the gag order in this case were not specific at all because they were copied by the State from an order entered in a completely unrelated case from almost fifteen years earlier. Moreover, there is no indication as to why the gag order in this case was necessary to prevent the interference “with the defendant’s right to a fair trial by an impartial jury” nor was there any indication whatsoever that the District Court considered less restrictive means to entering a “no-discussion-of- the-case” gag order.
III. The Tenth Court of Appeals' Conditional Grant of Mandamus Relief Is Supported by the Law and Facts of this Case.
*25 First, regardless of the constitutional test used, the dangers of any media coverage in this case do not rise to the extraordinary level of justifying a complete gag order for the purported purpose of protecting “the defendant’s right to a fair trial by an impartial jury.” Moreover, Relator’s claim that he sought the gag order to protect the rights of Mr. Clendennen and/or other motorcyclists strains credulity.
Second, there is absolutely no indication that the District Court in this case considered any less restrictive means of preserving the rights to a fair trial- a trial that would be at least a year in the future- instead of imposing blanket restrictions on free speech rights. For example, there is no indication that the District Court considered whether a change of venue; trial postponement; a searching voir dire ; emphatic jury instructions; emphatic warnings to the press and parties; an anonymous jury; and/or sequestration of jurors could be employed instead of a comprehensive gag order.
Third, a gag order in a case involving 177 defendants in different courts, involving related civil litigation in state and federal court, and involving judges who give their own press interviews is unworkable as a practical matter. Moreover, the gag order in this case which is of unlimited duration is overbroad and, by the State’s own concession, is also vague.
IV. The District Court Did Not Have Jurisdiction to Enter the Gag Order in this Case.
Mr. Clendennen has yet to be indicted and this case remains pending by *26 criminal complaint in the justice court. In order to secure a reduction of his $1,000,000 bond designed “to send a message,” Mr. Clendennen was forced to file a Writ of Habeas Corpus with the District Court and later sought modification of bond conditions. Under the precedent of this Court, the District Court was not vested with the authority to enter a wholesale gag order completely unrelated to the bond conditions which were the only proper subject matter of its Writ jurisdiction.
ARGUMENT [12] I. THE TEXAS SUPREME COURT'S HOLDING IN DAVENPORT V.
GARCIA , 834 S.W.2D 4 (TEX. 1992) SHOULD BE APPLIED TO GAG ORDERS IN CRIMINAL CASES
Mr. Clendennen initially notes that the State did not challenge the use of the Davenport standard in relation to the instant gag order in either its briefing before the Waco Court of Appeals or in its Petition to this Court.
A. Introduction
Gag orders, of course, are not restricted to civil case nor are they restricted to criminal cases and it would be truly odd if the free speech rights of a party and his or her attorney(s) depended upon the type of case being litigated. In fact, the Twin Peaks incident at issue here is the subject of both criminal and civil litigation and it would be perplexing, and likely unworkable, to allow parties to the various civil cases to discuss the incident with the media while disallowing parties to the criminal cases to discuss the incident with the media. Indeed, if the tests were different it would lead to a situation where, even though some individuals and lawyers are involved in both the criminal litigation and civil litigation arising out of the Twin Peaks incident, there are different gag order tests applied to those individuals with respect to the civil *28 litigation and criminal litigation.
The Texas Supreme Court seemed to recognize the danger of having different gag order tests in civil cases versus criminal cases when deciding Davenport . It specifically noted the dangers that might occur when there are “conflicting methods of constitutional interpretation in our unusual system of bifurcated highest courts of appeal.” Davenport , 843 S.W.2d at 14. In fact, it took pains to consult decisions by this Court when announcing its holding. Id . (citations omitted)
Likewise, lower courts have been guided by the Davenport test when considering gag orders in criminal cases and have noted that “the Court of Criminal Appeals often relies on the decisions of the Supreme Court of Texas when addressing matters of state constitutional law.” In re Graves , 217 S.W.3d 744, 749 (Tex. App.- Waco 2007) (Applying Davenport analysis to gag order in criminal case); San Antonio Express-News v. Roman , 861 S.W.2d 265, 268 (Tex. App.-San Antonio 1993) (“The application of Davenport to a criminal proceeding is appropriate as a means of protecting the public's right of access to criminal trials and proceedings and free speech through the dissemination of public information.”)
B. Davenport - Imminent and Irreparable Harm Standard
Davenport was a unanimous opinion by the Texas Supreme Court and contains an extensive analysis of the developing history of the free speech clause contained in *29 Article I, Section 8 of the Texas Constitution. Moreover, as the Davenport Court recognized, its holding that the Texas Constitution provided even greater protection than the Federal Constitution was hardly a unique conclusion:
Consistent with this history, we have recognized that in some aspects our free speech provision is broader than the First Amendment.
O'Quinn v. State Bar of Texas , 763 S.W.2d 397, 402 (Tex. 1988) (noting that “Texas' free speech right [has been characterized] as being broader than its federal equivalent,” the court concluded that “it is quite obvious that the Texas Constitution's affirmative grant of free speech is more broadly worded than the first amendment”); Channel 4, KGBT v. Briggs , 759 S.W.2d 939, 944 (Tex. 1988) (Gonzalez, J., concurring) (the state provision is “more expansive than the United States Bill of Rights”).
See also Casso v. Brand , 776 S.W.2d 551, 556 (Tex. 1989) (“our state free speech guarantee may be broader than the corresponding federal guarantee”).
Davenport , 834 S.W.3d at 8.
Davenport noted that the drafters of the 1876 Texas Constitution explicitly rejected a proposal to replace the existing free expression provision from the 1836 Texas Independence Constitution with alternative language more similar to that of the First Amendment of the United States Constitution. Id ., citing , Journal of the Constitutional Convention 62 (1875). Ultimately Davenport held that a gag order will only survive constitutional scrutiny under Article I, Section 8 of the Texas Constitution where there are specific findings supported by evidence that :
(1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute; and
(2) the judicial action represents the least restrictive means to prevent that harm.
Id . at 10 (emphasis added).
C. Federal Law
Complicating any attempt to impose a First Amendment federal standard in Texas for gag orders in criminal cases is the fact that the federal courts themselves disagree on the federal standard. For example, the United States Court of Appeals for the Seventh Circuit requires a showing of a “serious and imminent threat” to justify a gag order. Other courts of appeals require a showing of a “clear and present [13]
danger” to the proceedings in order to justify a gag order. The United States Court [14] of Appeals for the Fifth Circuit requires a showing of a “substantial likelihood of prejudice” before permitting a gag order but even then it acknowledges that “there may conceivably be occasions in which we evaluate restrictions placed on speech by attorneys under a different standard than speech by parties. Still other federal [15]
*31 appellate courts require only a “reasonable likelihood of harm.” [16]
D. Conclusion
In sum, the Davenport Court performed an extensive examination of the free speech provision of the Texas Constitution versus the federal constitution in order to arrive at its “immiment and irreparable harm” test. Moreover, it has conservatively rejected attempts to expand the Davenport into areas not involving the prior restraint of speech. See, e.g., Tex. Dep't of Transp. v. Barber , 111 S.W.3d 86, 105–06 (Tex.
2003); Operation Rescue–Nat'l v. Planned Parenthood of Houston & SE. Tex., Inc ., 975 S.W.2d 546, 557–60 (Tex. 1998). Meanwhile, the various federal appellate courts apply at least four different standards. While Mr. Clendennen acknowledges the bifurcated high court system in Texas, there is simply no sound justification for imposing a different test on parties and attorneys in criminal cases than has been imposed on parties for the past twenty-three years under Davenport . Moreover, even if there was such a justification, this case provides an unstable vehicle in which to do so in light of the fact that there are numerous criminal and civil cases that have arisen and will continue to arise out of the Twin Peaks incident.
II. THE FINDINGS SUPPORTING THE GAG ORDER IN THIS CASE ARE NOT SUFFICIENTLY SPECIFIC.
*32 III. THE TENTH COURT OF APPEALS' CONDITIONAL GRANT OF MANDAMUS RELIEF IS SUPPORTED BY THE LAW AND FACTS OF THIS CASE.
A. Introduction
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 incident. Nevertheless, as Justice Brandeis said: “Publicity is justly commended as a remedy for social and industrial diseases.
Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Louis D. Brandeis, Other People’s Money-and How Bankers Use It (1914).
This sentiment is still recognized today. “[T]he criminal justice system exists in a larger context of a government ultimately of the people, who wish to be informed about happenings in the criminal justice system, and, if sufficiently informed about those happenings, might wish to make changes in the system.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1070 (1991).
The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations . “[I]t would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.” Public vigilance serves us well, for “[t]he knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power....
Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account.” As we said in Bridges v. California , 314 U.S. 252 (1941) limits upon public comment about pending cases are “likely to fall not only at a crucial time but upon the most important topics of discussion....[“]
Id . at 1035 (citations omitted) (emphasis added).
B. Texas Gag Order Cases
1. Davenport v. Garcia , 837 S.W.2d 73 (Tex. 1992) As noted above, the Texas Supreme Court in Davenport held that, to justify a gag order, it must be shown (1) that, without the gag order, an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm. Davenport , 834 S.W.2d at 10. In fact, with regard to the first prong, the Supreme Court made clear that the harm must be “imminent” and “severe.” Ultimately, the Davenport court found that a gag order providing:
1. Counsel in this case, present and former, are expressly ORDERED to refrain from discussing or publishing in writing or otherwise, any matters of this case with any persons other than their clients, agents, or employees in the necessary course of business in this case.
2. Counsel is ORDERED to refrain from any public comment, casual or otherwise concerning the facts of this case or the conduct of counsel in this case other than in a court hearing.
violated the right to free expression guaranteed under the Texas Constitution. Id . at 11. (“‘[T]he argument of convenience can have no weight as against those safeguards *34 of the constitution which were intended by our fathers for the preservation of the rights and liberties of the citizen.’” (citation omitted)).
Following the Texas Supreme Court’s Davenport case, there were two other Texas cases where gag orders were challenged by a criminal defendant that are on point. The first was In re Benton from the Fourteenth Court of Appeals and the second is In re Graves from the Tenth Court of Appeals. [17]
2. In re Benton, 238 S.W.3d 587 (Tex. App.-Houston [14 District] 2007) th
Benton involved a gang fight in Houston. Benton , 238 S.W.3d at 588. The State requested a gag order and, much like here, alleged that the defense made “extra judicial statements to the media” that violated the Texas Disciplinary Rules of Professional Conduct. Id . at 951. After the District Court entered a comprehensive gag order, the defendant sought mandamus and argued that the gag order violated her free speech rights under the Texas Constitution and the United States Constitution and that the evidence was insufficient to establish the likelihood of the required level of prejudice to the integrity of the judicial process or the imminence of any such *35 harm. Id . at 592.
The Benton court ultimately determined that the gag order was unconstitutional even under the “substantial likelihood” First Amendment test because the trial court’s findings when imposing the gag order did not “establish, as a ‘constitutional minimum,’ that the order was narrowly-tailored to avert a substantial likelihood of material prejudice.” Id . at 597. It first noted that the gag order “primarily focused on relator's right to a fair trial and an impartial jury.” Id . It then noted that the district [18]
court “presumed that publicity is inherently prejudicial to a criminal defendant.” Id .
3. In re Graves , 217 S.W.3d 744 (Tex. App .-Waco 2007) Graves dealt with the following findings in connection with a gag order: 1. The prior proceeding in this cause of action, and other related actions of which the Court takes judicial notice;
2. The pre-trial publicity which has already occurred in this case, which includes local and national newspaper coverage, of which the Court takes judicial notice;
3. The rulings and opinions which set out the inherent power of the Court to control its own proceedings, and to assure that a fair trial is provided for the State and the Defendant in this cause;
4. Whereupon the Court does find that it is necessary to enter this Restrictive Order to protect and provide for a fair and impartial trial in this cause of action.
*36 Id . at 746. Like Mr. Clendennen, “Graves at least implicitly dispute[d] that pretrial publicity in his case ha[d] risen to the level that it pose[d] ‘imminent and irreparable harm’ to a ‘fair and impartial trial.’” Id . at 752 Ultimately, the Tenth Court of Appeals concluded that the Respondent trial judge “ failed to make ‘specific findings’ detailing the nature or extent of the pretrial publicity in Graves's case or how the pretrial publicity or the record from his prior prosecution will impact the right to a fair and impartial jury” and vacated the gag order. Id . at 752-53. th
C. United States v. Ford , 830 F.2. 596 (6 Cir. 1987) and United States v.
Wilson, 925 F.Supp.2d 410 (E.D.N.Y. 2013)
Observations made in the federal case of United States v. Ford are also applicable here . In Ford , an indicted congressman sought to vacate a “no discussion-of-the-case” gag order imposed in connection with his criminal trial.
Ford , 830 F.2d at 597-98. The United States Court of Appeals for the Sixth Circuit began by making the following observations:
[S]uch broadly based restrictions on speech in connection with litigation are seldom, if ever, justified. Trial judges, the government, the lawyers and the public must tolerate robust and at times acrimonious or even silly public debate about litigation. The courts are public institutions funded with public revenues for the purpose of resolving public disputes, and the right of publicity concerning their operations goes to the heart of their function under our system of civil liberty. The courts have available other less restrictive approaches for insuring a fair trial. They may, for example, consider a change of venue or the sequestration of the jury or a searching voir dire examination of the jury.
Id. at 599 (emphasis added). Moreover, the Sixth Circuit noted that these principles are even more forceful in the area of criminal proceedings. “A criminal defendant awaiting trial in a controversial case has the full power of the government arrayed against him and the full spotlight of media attention focused upon him.” Id . Finally, in finding the gag order at issue overbroad, its opinion contained language on point to the instant case:
It is true that permitting an indicted defendant like Ford to defend himself publicly may result in overall publicity that is somewhat more favorable to the defendant than would occur when all participants are silenced. This does not result in an “unfair” trial for the government, however.
It is the individual defendant to whom the Sixth Amendment guarantees a fair trial. See Levine v. United States District Court , 764 F.2d 590, 596 (9th Cir.1985), cert. denied , 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986). It is the public to whom the First Amendment guarantees reasonable access to criminal proceedings. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). And it is individuals, not the government, to whom First Amendment interests attach. To the extent that publicity is a disadvantage for the government, the government must tolerate it. The government is our servant, not our master.
If the combined workings of these constitutional guarantees, coupled with the operation of reasonable restraints of professional responsibility applicable to the attorneys in a case, should result in an atmosphere that threatens the ability of the government to try the defendant in a “fair” forum, the trial court still would have available other remedies suggested above.
Id . at 600 (footnote omitted) (emphasis added).
Meanwhile, another federal court recently denied a defense request for a gag order in a death penalty case noting:
Before the court may impose any sort of “gag order,” it must, among other things, determine whether “other available remedies would effectively mitigate the prejudicial publicity.” These possible measures include a change of venue; trial postponement; a searching voir dire; emphatic jury instructions; emphatic warnings to the press and parties; an anonymous jury; and sequestration of jurors.
Wilson , 925 F.Supp.2d at 412 (citations omitted).
D. Instant Case
1. The Findings Supporting the Gag Order in this Case Are Not Sufficiently Specific.
Even a cursory review of the findings by the District Court in imposing the gag order in this case reveal that they are not sufficiently specific. Indeed, they are not specific to this case at all but, rather, they are identical to the conclusory findings made by a court in the Andrea Yates case fourteen years earlier. Houston Chronicle , 64 S.W.3d at 109. How can the findings in a 2015 case of alleged “gang violence” by 177 motorcyclists be identical to the findings in a 2001 case involving a woman in Houston with severe psychological difficulties who killed her five children? Much like its fill-in-the-name criminal complaints, the State apparently believes fill-in-the- name gag orders without any individualized considerations are constitutionally sufficient. Indeed, in the State’s haste to get a gag order in place after its myriad of *39 press conferences, the State has ignored the need for specific findings by simply plagiarizing the findings made in a totally unrelated case from a decade and a half earlier.
With all of that said, Mr. Clendennen is reluctant to play into the State’s hand wherein the case is remanded for more specific findings and the case takes another tour of the various courts and the vindication of his free speech rights is further delayed. Still, in light of the Court’s question to the parties, Mr. Clendennen makes several observations regarding the findings copied in this case from the Andrea Yates case.
First, the District Court offered no explanation at all as to why it was entering a gag order, over the defendant’s objection, in order to prevent the interference “with the defendant’s right to a fair trial by an impartial jury (emphasis added to District Court’s gag order).”
Second, although the order parrots the phrase that “no less restrictive means exist[ed]” to imposing a gag order, there is absolutely no indication that the District Court actually considered any other alternatives such as a “change of venue; trial postponement; a searching voir dire ; emphatic jury instructions; emphatic warnings to the press and parties; an anonymous jury; [and/or] sequestration of jurors.” Wilson , 925 F.Supp.2d at 412 (citations omitted). To the contrary, the District Court’s order *40 implies that it imposed a gag order in order to prevent the necessity of a venue change. [19]
Third, as noted above, the only media presented to the District Court in this case before it entered its gag order was one interview. In that interview, Mr. Clendennen’s counsel indicated that he might release a surveillance video that had been described to the press by the Chief of Police more than a week earlier. Moreover, the District Court could and did address that specific concern by imposing a protective order prohibiting the release of the video.
2. The Tenth Court of Appeals' Conditional Grant of Mandamus Relief Is Supported by the Law and Facts of this Case.
a. The Threshold Test as to the Danger of Pretrial Publicity Needed In Order to Impose a Gag Order Was Not Met in this Case
Although it is unclear what threshold standard was actually used by the District Court when entering Relator’s gag order, whether this Court adopts the Davenport standard or one of the slightly less stringent federal standards, the fact remains that the dangers related to media coverage in this case do not justify the extraordinary *41 measure of imposing a gag on the free speech rights of Mr. Clendennen and his counsel. It appears the State believes that it is consistent with constitutional principles for it to be allowed to give repeated interviews designed to portray 177 member of motorcycle clubs to be “gang members” who came to Twin Peaks on May 17, 2015 only with “violence in mind” and not “just to eat lunch.” Then the State believes that ten minutes before an unrelated hearing it can, for the first time, complain about the publicity that casts its previous accounts of what occurred at Twin Peaks into serious doubt. The unvarnished truth of the matter is that the State had absolutely no concern with “the paramount importance of the trial rights of Mr. Clendennen” ( see State’s Pet. at 13) when it held its repeated press conferences earlier in this case and certainly its concern now for “the defendant’s right to a fair trial by an impartial jury” is transparently hollow.
Accepting Relator’s canard, the District Court in this case made the identical error made in Benton . In other words, it simply “presumed that publicity is inherently prejudicial to a criminal defendant.” Benton , 238 S.W.3d at 597. Nevertheless, Mr. Clendennen is in the best position to advocate for his rights in this regard and he declines Relator’s assistance . Ford, 830 F2d. at 600.
Perhaps because Relator’s argument of altruism for Mr. Clendennen strains credulity, he now also claims he sought the gag order to protect the trial rights of the *42 other 176 motorcyclists- none of whom have yet been indicted. See State’s Pet. at 13.
First, the gag order by its own terms only applies to the Clendennen case. Second, no other motorcyclist has requested a gag order be imposed to protect his or her trial rights. Third, if that was indeed Relator’s motivation, why wait until ten minutes before an unrelated hearing without giving any notice before requesting a gag order?
Why not announce to all of the defendants that he was magnanimously requesting a gag order to protect their trial rights? For that matter, why give interviews in the first place describing the motorcyclists as “gang members” who likely must be guilty because they were not cooperating with law enforcement officials?
In short, there has been no showing that the press coverage in this case creates an “imminent and irreparable” harm or even a “substantial likelihood” of harm to a trial that will not take place until sometime in the distant future (and that, of course, assumes that a grand jury indicts Mr. Clendennen for being a motorcyclist merely present at a crime scene involving other motorcyclists. )
b. This Instant Gag Order Does Not Meet the Least Restrictive Means Test In its petition and when discussing whether the gag order in this case was “narrowly tailored” and whether it met the “least restrictive means” test, Relator simply told the Court that it “seems self-evident” as to why the gag order was the least restrictive means to accomplish the goals sought by the gag order. See State’s *43 Pet. at 10.
Nevertheless, as the Waco Court of Appeals implicitly recognized, it is hardly “self evident.” Indeed, it is important to recognize that this appears to be one of only a few cases, if not the only case, in which a gag order was imposed before a defendant was even indicted. As a realistic matter, even if Mr. Clendennen was to be indicted, his trial (along with the trial of 176 others) is at least a year away.
As noted above, although the District Court parroted the words that “no less restrictive means exist[ed]” to impose a gag order in this case, there is absolutely no indication that the District Court actually considered the fact that any jury trial would likely be at least a year away. Moreover, as also noted above, there is absolutely no indication that the District Court considered any less restrictive means such as the various means discussed in Ford and Wilson including a “change of venue; trial postponement; a searching voir dire ; emphatic jury instructions; emphatic warnings to the press and parties; an anonymous jury; and sequestration of jurors.”
In sum, it is not at all “self evident” as to why a gag order is needed to protect a case not even indicted and which will certainly not go to trial in the near future nor is it “self evident” as to why there are not several constitutionally preferable alternatives to a “no discussion of the case gag order.” [20]
*44 c. The Gag Order is Overbroad, Vague and Unworkable
In addition to the above problems, a gag order in this case is unworkable as a practical matter given the State’s decision to charge 177 motorcyclists in identical criminal complaints. As previously noted, the gag order only applies to attorneys and parties in State v. Clendennen . It does not apply to the attorneys and parties in the other 176 cases. For example, by its terms, it does not apply to the State when commenting on the other 176 cases nor does it apply to Mr. Clendennen’s counsel in the two other cases in which he represents similarly situated defendants. Ultimately, the gag order would collapse under the unprecedented action by the State to charge 177 people with the exact same offense.
Moreover, by its terms, the gag order did not, and as a legal matter could not, apply to any of the litigants in the related civil cases. Indeed, Mr. Clendennen was and will soon again be a litigant in a federal court civil rights lawsuit related to the very incident that forms the basis for the criminal complaint under which he is charged.
denial of change of venue in the Enron trial because “unlike cases in which trial swiftly followed a widely reported crime, over four years elapsed between Enron's bankruptcy and Skilling's trial.
Although reporters covered Enron-related news throughout this period, the decibel level of media attention diminished somewhat in the years following Enron's collapse.” (citation omitted)). This was also noted in In re Benton , 238 S.W.3d at 599 (The Court saw “no substantial likelihood of material prejudice when such a significant period of time elapses [6 months] between the statements and the seating of a jury.”).
Moreover, it is clear that the gag order does not apply to the McLennan County judges such as Judge Strother and Justice of the Peace Peterson who made comments to the press after the entry of Judge Johnson’s gag order. See Respondent’s Appendix 1-2.
In addition to being unworkable, the gag order is overbroad. For example, it has no ending date despite the fact that Mr. Clendennen has not even been indicted.
Does it terminate if one grand jury “no bills” Mr. Clendennen? If there is a trial, does it terminate once a jury is selected? Indeed, by its terms, the gag order is unlimited in duration and would appear to be a permanent injunction that forever bars the litigants and their counsel from commenting on a significant case. Cf. Vance v. Universal Amusement Co. , 445 U.S. 308, 316 (1980) (Striking down statute on ground that it restrained speech for period of “indefinite duration”). While a permanent injunction may not have been Judge Johnson’s intent in signing the State’s gag order, the very fact that Mr. Clendennen and his counsel are left to guess at whether and when they can exercise their state and federal free speech rights renders it indefinite and facially defective.
Finally, in addition to be unworkable and overbroad, the gag order is also vague as the State itself pointed out in its Petition. The State’s Petition purported to recognize a distinction in the gag order between “ discussion with the media” and *46 “statements to the media.” See State’s Pet. at 9. Under the State’s reading of the gag order, the parties could make statements to the media as long as it did not violate the Texas Disciplinary Rules of Professional Conduct but they couldn’t have discussions with the media. Apparently, under the State’s reading, it is free to call members of the media and tell them, “Don’t ask me any questions because I can’t have discussions with you, but I can make statements so listen closely.”
d. Conclusion
In his Petition to this Court, Relator warned the Court that “it would behoove the Court” to recognize what the State perceives to be the uniqueness and enormity of this case. See State’s Pet. at 9. Apparently, the irony of that dire warning to the Court was lost on the State. There have, of course, been other incidents like the Twin Peaks incident involving mass deaths and injuries. Nevertheless, in those other [21]
situations the police did not overreact and arrest almost everybody at the scene of the crime whether or not they were simply innocent witnesses such as Mr. Clendennen.
The unprecedented overreaction and civil rights violations using “fill-in-the-name” *47 arrest warrants to arrest and detain numerous innocent individuals is a mess of the State’s own making and the uniqueness and enormity of it is one of the very reasons that a gag order infringes on important free speech rights. Gentile 501 U.S. at 1070 (1991) (“The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations.”).
IV. THE DISTRICT COURT DID NOT HAVE JURISDICTION TO ENTER THE GAG ORDER IN THE FIRST PLACE
While not among the questions for which this Court ordered briefing, Mr.
Clendennen submits that the District Court did not have jurisdiction to enter the gag order in the first place.
This case is currently pending based upon a criminal complaint signed by a Justice of the Peace. See State’s Appx. 1. The gag order was entered in connection with Mr. Clendennen’s attempt to obtain, via a subpoena duces tecum , a copy of Twin Peaks’ surveillance tape. The subpoena was sought, inter. alia ., in connection with motions by Mr. Clendennen to amend his bond conditions. It was sought under the District Court case number 2015-1955-2 which was assigned in connection with Mr. Clendennen’s original Application for Writ of Habeas Corpus Seeking Bail Reduction.
The District Court’s jurisdiction to consider an Application for Writ of Habeas *48 Corpus and later to amend bond conditions set pursuant to that Application did not give the District Court full jurisdiction to impose a gag order in a case pending before a Justice of the Peace. On point is Ex Parte Clear , 573 S.W.2d 224 (Tex. Crim. App.
1978) where this Court held that, when a criminal complaint is pending before a Justice of the Peace, a district court does not have general jurisdiction to enter orders in the case. Indeed, the filing of an indictment is essential to vest a trial court with jurisdiction over a felony offense. See Cook v. State , 902 S.W.2d 471, 475 (Tex.
Crim. App. 1995); Ex Parte Port , 674 S.W.2d 772, 779 (Tex. Crim. App. 1984).
The simple fact of the matter is that the District Court in this case was only allowed to rule on matters related to Mr. Clendennen’s bond conditions pursuant to the Application for Writ of Habeas Corpus he filed. No indictment has been filed against Mr. Clendennen even as of today. Thus, under both Cook and Port , the District Court was not vested with the authority to enter a wholesale gag order completely unrelated to the bond conditions that were the only proper subject matter of its Writ jurisdiction.
PRAYER In light of the uniqueness of this case (which is related to 176 criminal cases and several civil cases where gag orders have not been imposed), Mr. Clendennen submits that this case does not lend itself to this Court setting a standard for gag orders in criminal cases and then applying that standard to the case at bar. Consequently, Mr. Clendennen respectfully submits that the Court’s stay and consideration of this case was improvidently granted and respectfully requests this Court to expeditiously lift the stay it previously imposed.
Alternatively, the Waco Court of Appeals did not “clearly abuse its discretion” in granting its conditional Writ of Mandamus and, therefore, the stay can be expeditiously vacated on that basis as well.
Respectfully submitted, /s/F. Clinton Broden F. CLINTON BRODEN TX Bar No. 24001495 Broden, Mickelsen, Helms & Snipes, LLP 2600 State Street Dallas, Texas 75204 (214) 720-9552 (214) 720-9594(facsimile) Attorney for Matthew Alan Clendennen *50 CERTIFICATE OF SERVICE I, F. Clinton Broden, do hereby certify that, on this 14th day of September, 2015, I caused a copy of the foregoing document to be served by electronic means, on:
McLennan County District Attorney
219 N 6th St
Waco, Texas 76701
Tenth Court of Appeals
501 Washington Ave.
Waco, Texas 76701
/s/ F. Clinton Broden F. Clinton Broden *51 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Tex. R. App. P.9.4 because this brief contains 8,694 words, excluding the parts of the brief exempted by the rule.
/s/ F. Clinton Broden F. Clinton Broden
TEXAS COURT OF CRIMINAL APPEALS CASE NO.
WR-83,719-01 IN RE STATE OF TEXAS EX REL. ABELINO REYNA Relator
Trial Cause No. 2015-1955-2 In the 54 th District Court, McLennan County Honorable Matt Johnson, Presiding Appellate Cause No. 10-14-00235-CR 10 th Court of Appeals Waco, Texas APPENDIX OF REAL-PART-IN-INTEREST MATTHEW ALAN
CLENDENNEN F. CLINTON BRODEN TX Bar No. 24001495 Broden, Mickelsen, Helms & Snipes, LLP 2600 State Street Dallas, Texas 75204 (214) 720-9552 (214) 720-9594(facsimile) Attorney for Matthew Alan Clendennen
APPENDIX 1
2
Waco police detective named foreman of grand jury that may he ... http://www.wacotrib.com/newsltwin-peaks-biker-shootinglwac ... ~ Power Your Business Seplembt!f \4.201 5 GO Local CUS TOMER SERVIC~ HOME LOC AL BUSINESS OPJNION OBITS SPORTS PHOTOS VIOE.O ENTERTAItl:MEtfT BLOCS AOVER TISE I. . , . . , 8EARS EXTRA CONTESTS DEALS NEWSLETTERS SHQPBRAZOS SPECIAL SECTIONS WACOTRIBJOBS .COM LEGAL NOTlCES Waco police detective named HOH To: Remov e Dark Spot:.. foreman of grand jury that may hear Twin Peaks cases
Story Comments. Image (4) Pnnt FOn! S,z e, [WATCH] TooaV' " cool de.l:Il S32.50 10$ your chotOe of a Che-ml(:;Jj PHI, or Derma p!ane Treatme nt ($6 5 Vo ) SQ 50%0n Ca,.nr Buy." 4 Offered by. ~ co OrganIC Slo:,in Grab this great deal todayl rwn.leftond4oel Buy Thisl 6d:Olh:02m G) WacoTribNOW G.t b ... lklng news, h.adlln •• , ott.ra l'II!m SlM.t'fpholu- Jcr-ry t..""OIl [mat Judge Ralph Strother swears 1'1 potentia l g ra nd jury members Wednesday. A Waco polICe delectfVe ultimately w.liS selected as the grand JUry fore man. ThIS panel may consider Indlc:tmenls rela:ed to the Click Here to Sign Up l TWIn PeaKS shootings.
Submit Your News! PO$tcd: Wcdm',sOuy, Jut)' 8,20 156:01 pm Wc're alwa.y.) interested in hearing By TOMMY W1THERSPOON i1hout m'ws in our lUIIlUlulliry, Let liS twith('_rspoon@wRcotrib.eom know w bat' .... J;n illgon! A Waco police detective \\'as selected Submit 11o"" l Wednesday to presid e over a new Mclennan County gra ndjllry that c.ould be the panel th<'lt considers the Twin Peaks shootings, Editor's Picks The grand jury was selected Ilsi ng th~ nt'''' Jay's big plays: Afrer ~ 1 t\l~m~ndatNt ranoon1 r:1f"'thod. 3-TD game, is this 51,,« photo- Jerry Utr~tI vClcran Lee's breakout ,J ames Heil.d, a 34 ·year police veteran who year'! Patenl lar grand JU ry members walk It'IIO court has spent 26 ye ars \\1th Waco PO, was among Wednesday morning A Waco polICe detecu .... e was selected as lhe grand jury foreman This panel ma y the first 14 on the panel quali fied to serve on consider IndIctments related to the T ..... ' n Peaks Warehouse lofr project t hr grand jury and, beyond that. 19th State shootmgs, wins less downtown District Judge Ralph Strother selected Head 8!Jy Ihis photO Waco TIF money than to serve as the foreman. requesled After the 12 members of the grand jury, plus two aiterntltes, were chosen, Hend, wearing View aU 4 images in gaJlery, Fun while it laslcd: his police badge and service pistol, entered Waco High suffers 1st the grand jury chambers with the oth ers to loss, 47-12 Related Links begin conSidering about .100 crim inal ~s {>s presented by the McLennan County Dis trict A"1aoc! MORE : Complete coverage ot TWIn Peak s Attorney's Office, ,hooling Rei" lOG PHOTOS: Shooting a[ TWIn Peaks In This panel, which will me{>t twice a month .w Waco 1M ne-:< t three month .. , could consider 91l41lS11:0SAM 1 of 4 *55 Waco police detective named foreman of grand jury that may he ... http://www.wacotrib.com/news/tw i n- peaks- bi ker -shooting/wac ...
officers' action s in response to th~ melee that broke Ollt between rival bike r groups thllt day. indictments against the 177 bike-rs arrested in the wake of the May 17 T\ ... in Peaks shoo tollt that left ni ne dead and [20] wounded. Agrandjuf)', at some point, also will r(,view Waco police
~Th('It's th e way it tu rned Ollt," Strother said aft er Head was selectt-d. noting Texas I(lw says the fir st 1'2 pl'ople wh o are qual ified are sele('.ted for the grand jury, "There was nothing to prevent the dt"tective from be ing a qu alified member of the grandjury, just like there is nothing to prevent him from bei ng a Quaiifie,d juror ,~ the judge said. "If there is nothing that chall enges his jrnpMti(llity, he is qualified. We have lawmen who get on jury panels al l the time. \Vho is better qualified in criminal law than somebody who practices it all th e time?" Local Ads McLennan Cou nt}' Distriet Attorney Abel Reyna was present as the gra nd jury was sworn in, NORTHSIDE "That's thesystem,M he sa id. "He was chosen totRlly at random, like the law says.K CH/CHRIST But fo rm er Appea ls Cou rt ,Just ice.Jan Patterson,justice in residence at Baylor Law Sc hool and a former federfl] prosecutor who has yea rs of experience with grand juries, sai d the detect iw 's se rvice could be prob lematic. MARSTALLER MOTORS "Of course, it is lip to the judge, but it would be very difficult for a police officer [0 serve,K she sa id. K All of the cases th e grand jl1 ry considers are criminal cases, and in many ci rcu mslances, a police officer will know the parties, It may be difficult to be impartial, and I woul d think it will be difficult, as well, to appear impartial , wh ich are both im portant fun ctio ns for a grcmd PLEASANT jilt)' GROVE BAPTIST Head , 58, who inves tigates th efts in Waco PD 's Neighborhood Ser\~('es Sectio n, CHURCH ackn owledged his selection to the grandjury "is kind ofunlJ s\la1. ~ "Ou t the judgE' is going to be fair. Th ey are not going to let anyt hing lIlld E'rha nded get by up there," he sa id.
When asked if he had any in volve ment in th~ n1..t~ 1 ... ,.1\-.io Pt"~ks in v t'~tigati() n , Head said, ~Not rea lly," He wou ld not elaboratE' on that an swE'r and deferred additional Quest ions about th e T'.o;in Peaks inciden t to th e Waco City Attorn ey's Office. Jesse's Tortilla Fae .. , Reyna said Wednesday morning that if Head or any of th e grand jurors have a co nOict w'ith what is presentE'd to them , th ey can simply step alit of the grand jury ch<lmbers while the others votE' on or cons ider the case. It takes nine grand jury members to indict (I person (l nd nine members to form a quorum, Find Local Bu.in8U88 "If someth ing comes up that I have worked on or something like that that involved any type of GO appare nt connict, 1 am not going to vote on it," Head said. Poputar Searches J Br0W30 By Category New state law called "pick-a-pal" system,judges se lected four or five co mm iss ioners from II cross section of the cou nty, Those co mmi ss io ners then selected fOllr or fi ve members of the comrnunity, and the fi rst [12] who qualified were selected as gran dju rors. The ra ndom method is thought to improve diversity on grandjllry p;mels in hopes they better reflect the makeup of the community. The grand jurors selected Wedn esday inchld ed five white women, four wh ite men, a black Unde r the old method, someti mes Yf'ar:. the "key-man" method but derided by critics as the woman and a Hispanic man and woman. The two alternates are wh ite men. Legislature, which [75] members was mandated by jury of grand eliminated the optional method IIsed in th e tll1cLennan County S'l~ k'c tion (Qr ollvast the nast random The customer. Cheese House Texas sandwich get one Ch~e free Limit One per Local Offers Buy G 'llied SpeCialty one more View local offers TOP JOBS GeneralHelp Acc ounts Receivable 09.12. 15 I [17] did not show up, More Coverage those, 39 lIsed exempt ions or disqll alitiCtl tions before Wedn esday and were excused, Anot her District Clerk Jon Cimble summoned [100] peopl e from which to select the grand jury_ Of • Updated Ust of Twin PeakS bikers. j. ~ e d. I " ea$~d re"'~ues tall UIcs • TWin Peaks shootOUI dtdn'l dampen robUSI May Bl kef~ attomey riles emergency 81)pe"lIif of gag Of dM • • Family o! slain bIl.er sues Twm Peaks lor neglIgenCe help • Civ[[ nghlSllWo'$Ult dlsl'nI$Wo against City, county: pl.lntl" plans to refile WIth s.ubpocn!1S from TWIn Peak&. shooloul • Co unty hires attorney 10 • Don Ca(1os seeks to blOCk release 01 Shootout surve n<:e Video • Grand jUry extended 2 months to hear TWin Pea'ks bl k.er Case1- • Juoge ptevcnltl publICi relellM 01 Twin Peaks video, Issues gag order • Bail bonet anlde monltO!' COMpanies see bonanzalrem bL er lJTests • Hearing on Twin Peaks Vlde~ 6I.Ibpoen a set lor Tuesday • JUdge reverses order to extend Mclennan County gr,nd /Ury's term ""ilst warrants • W;')Co offiCials seek to quash r.ubpoena Issued lor Twm Peaks \'ldeo • Bamt oos' atlorney. Police acc ount 01 Twin Peaks shooting 'cooki~tte ( • Biker ;t1orney cha!lenges 'damaging' 'faise: \V"CQ ; W" coTribJob:<,CQHI Find j uh:< III 09 11 15 I Insurance Legal Administrative Assistant 09.11. 15 I Admin istratIVe & UNDERWRITING MANAGER Construction Inspector 09, 11 . 15 j Constr uctlon, Mining and Skilled Trades Office W Qt k IU1 ('mploymC'llt ltd PI"D.': [2] of 4 9114115 11:05 AM *56 APPENDIX 2
3 *57 Retired judge sought to hear Twin Peaks bikers ' examining trials ... http: //www.wacotrib.com/news/tw i n- peaks- bi ker-shooti nglreti re ... abreva :~.
Septemoe: 14,2015 GO r , Local 1i0ME: LOCAL aU S I ~IESS OPI N:ION OBITS SPORTS PHOTOS 'li0£0 ENTE RTAtN.U::: NT BLOCS T ....... IIIW r ~1!AIIt. e 1nu CONTESTS DEALS NEWSLETTERS SHOPBRAZOS SPECIAL SECTIONS WACOTRI8JOBS.COM LEGAL NOTICES Retired judge sought to hear Twin abreva'= . . ' Peaks bikers' examining trials
Story Comments Image (3) Pnnl Fent S,ze RKOITr'I'Itnd r [61] T'Wftt [9] G+I 0 [11]
Po~I ... "tI : Tue..-.day, July 28, 20155:01 pm By iOMMY WlTHERSPOON A reti red state district judge from Travis exa mini ng trials of [20] bikers a rrested in the whet.hl"r she cOl1 ld be Qllestioned a local judge 17 Twin Peaks shootollt after reports that Cou nty ha s been asked to pres ide over the M~y impartial and declined to hear the cases . twithcr~poon@wfl.ootrlb.COIlI Value) Toda~ ' 5 cool ~ ' S32.5O IOf your dloice [01] il Ch~ cal Peel. or Ownaplane Trea'\rTIent (565 be the cases hearing ImparM ., told another person 8M could not Peaks sh<xHoot aner a defense ,morney says she exa min JuslU;:e of IhO Peace Dia ne He sley Related LI n ks shoollng R~!Od' or Twin Peaks PHOTOS : Shootlng at T'win Peak$ln ~ Ia,oo: MORE : Complete coverage ""<0 I 2Q bikers In lJle TWJn Is of an ested nty, COLI Bell after senior .Judge Joe Carroll, SUtffphoto- Jerry LH,rSOIl, me of Buy this photo not hear the . Judge Billy Ray Stubbl efield, admin istrative judge of the 26-eounty 3rd ,Jud icial Region, it But Dallas attorney Clinl Broden represented hea r the cases in Peterson 's to appointed justi ce of the peace, to be [1] fellow Precinct Pet ~ rs o n's be impal1ia1. Slubbl efieid said biker Matthew Clendennen . is to Judge Carroll last week that Hensley told procedure" for Dianne Hensley, trial of Hewitt would h<,ve been "normal Waco attorney Robert CaJ l<l.han that she eX<l.minjn& w<l.it ing to hear ·~r could she Ir sure back from the judge to see if he will agree to she WlIS not because would recuse her office hear the exa mining trials. he tilt" Thejudicial ap pointment becomes necessary plact.". la~t pre ifling o .. week from fN'lI500 McLen nan COllnty Justice of the slIid Friday evening th<l.t Pe(lcf:' W.H. "Pete" Pete rson wacoTribNOW T~Wlon dNl: 6d :OOh:52m G . .. off.,. [mlli!: ne~dll" get b,...klng new., Editor's Picks Submit Your News! Click Here to Sign Upl Grab this great deal today I al}()ul in ne ll, .. our u.s Let 1,.·f1l1lnluniry. \\'ho t '~ gQj n~ on! hl" ~':S jUkl'l....~h:IJ know Wl.·'re .. ill hcurillj!, by : ~ro OrgR",," Skin On.l. d auy.,.: [4] ... C~ Buy Thisl 50%0" rw 'olO Submit Hens ley said this week that she does not fun while illasted: recall saying she could not be impartial lind said if Stubblefield decides to appoint hl'r to Waco High suffers lSI preside over the examin ing trials, she would "have to do some resea rch ," but would he(!r , loss, 47-12 them. Neither Hen sley no r Peterson eve r has conducted an examining trial, which normally is used Capital murder by defense attorneys to get an early glimpse of prosecution evi dence and to seek a defendant fails in bid for new attorneys dete rmination that there was not probable cause to arrt~s t their dien ts. HEmsley said she wa s in the middl e ofheuing some debl claim in the courthouse, so I don't think told him I worked very closely wit h Judge Peterson and I hear all the gossip going around "1 '"I woul d be Hfrclid that there woul d be a pt." rc.eption that I wou ld not be fair because I do work to her court. f closely \\;th ,Judge Peterson. But if,Judge Stubblefield lIssigns it to me, I will hear it. " would be their first choice to hear th e C<l.se," Hensley s<l.id. [10] she W(lS goin g to be in town Aug. if ca me in and asked last week when Callahan cases jfClendennen's case was transferred ~ Pumped up for Paisley: Counlry star helps kick ;:'ftj Park means tramc problems Growing popularity at Tradinghouse Lake Callaha n sa id Tuesday he remembers Hensley telling him she ..... ollid recuse herself if she got off Baylor football season the appointment. "She W<l.S very professional," CalJahlln said. ~Bllt the only words J spe.ci fically rt'member she
[1] of [5] 9/14/15 11 :08 AM *58 Retired judge sought to hear Twin Peaks bikers' examining trials ... http://www.wacotrib.com/news/twi n-peaks- bi ker-shooti ng/reti re ... said was that she would reCllse he rsel f. She did have some sort of qualification or
clarification, but I don't fe-member what it was. (t was something to t.he effect that she could not be impartial." No matter what Hensley told Callahan, it is clear that Brode-n told Carroillhat He ns ley said she would recuse herself because she thinks she could not be imp artial. But C,1r rol l has no authority to appoint Hensley or anyone else. That authority belongs to Stubblf'field. Stubb lefield, of Georgetown, said hi s order will appoint the judge to preside over th e (,h."I1(1<-nn('n eX<lmining trial , but also gives him the authority to he.ar 17 other cases schedul ed in Pcter::-on's COlirt and those set in the courts of.Jl1sticeofthe Peace David PareY<l and Waco Munic ipal ,Judge Chris Taylor, Stubbl efield said he did nol see k a judge oUlside of McLennan Co unty because of Ihe minion bonds. widespread critidsm of the W(lY Waco police and Mclennan County officials have handled Iht" rhaotir romnlt"x £fl~(" in which nine pe,ople \Vere killed and [177] bikers were jailed on identical I 'Trying to be efficient' engaging in organized cri minal nctivity charges Imder S Local Ads _.... [~!-li~ - . _ ···· .. ___ ·-4 ~OlmUNO£ _ . . not ..,... CWCHRIST NORTHSIDE "Not like we would it would bf" most appropriate to hnndle it thought [1] ajustice of the pe(lce. So magi st rate rath er than as a justice of the peace acting nS a reali7..ed that this was <my I it, got tooking into I The closer time. a matter of trying to be efficient with the lise of the co urt's was just It the judge said ... , haven't heard any negative com menLS or criticisms. really , ~ the. more other recusal." MOTORS MARSTALLER Brodf"n complained that Peterson set llnre:Jsonably high bon ds and said he was dOing so to ",q·nd i1 mt(,9gl! ~ about thf" gravity of the incide nt. He also complaine-d that Peterson signed off on what Broden and others have called ucookie-clltter, fiH-in-the-blank warrants~ ~ bikrr-s" arrests. PLEASANT Waco attorney David Deaconson ....... hirffl by Ihe cOllnt!' to represent Peterson and to assist GROVE BAPTIST with l\'lin Peaks-related mot ions, subpoenas and other legal matters. He also is sf"rving as CI:IURCH liaison between biker defense attorneys, the courts and Stubblefield. He Sllggested to Stubblefield that an out-of·townjudge might qUf"11 more criticism about what the bikers and their supporters are calling the lmfair Mclennan County justice system. "I f the administrative judge has graciously offered to give us assistance as far as ajudge on all examining trial s conducted in McLennan County in the past years. He added that with the. Michael Morton Act, which require.s prosecutors to provide defendants clOd their attorneys with all E'videnre, including favorable evidence, against them, examining trial s are not needed unless defendants are in jail and seeking another way out. Only three of the [177] bikers arrested remnjn jailro. and they have charges from other counties maybe three or fO ll r been [30] pending. of this, I jtlst think if people," Deaconson said. we bring in one who ca n devote his time, we can get the pro cess on the media, or the public or whomever, th at the county is totally trying to scheme against these from the it Deaco nson, a former Mclennan County prosecutor, said there have examining trial side done much mare efficiently and there isn·t any concern, be Find Local BuaineHeIi Search Calegory PopulAr SBard1e!l I Browse By Westview Nurlery & L .. W~ TX7i'710 GO The following bikers arrested after the May 17 shootout at Twin Peaks in Waco Local Offers have filed to have examining trials: Texas Cheese House Buy one SpeCIalty Gnlled Matthew Clendennen. Hev,";tt C h ..... aa ndwich get one free. Umlt One per Daniel Pesina , Sa n Antonio custorner View more local offers Mitchell Bradford . Gordon ,Juve nt ino H. Montellano. San Antonio TOP JOBS Joseph Ortiz, San Antoni o 09.12.15 i Transportation and Malen'al Richard R. Donias, San Antonio Moving Lawrence Garcia, San Antonio NURSING 09.12. 15 I Healthcare .Iohn Guerrero. San Antonio Accounts Receivable 09 ,12 ,15 I General Help Tom M. Mendez, San Antonio ,John R. Wilson, Waco UNDERWRITING MANAGER 09,11.15 I Insurance Clayton D. Reed, Burleson Matthew R. Folse, Dallas Findjo~ ill WHCO : WKcoTJ"lbJoblO-com Pl"'c...· Illl emplorment ",d Morgan J. English , Brenham [2] of [5] 9/14/15 11:08 AM
DECLARATION REGARDING APPENDIX I, F. Clinton Broden, do hereby certify that Appendix 1 is a true, correct
copy of a newspaper article from the Waco Herald Tribune downloaded from:
http://www.wacotrib.comlnews/twin-peaks-biker -shooti ng/waco-po 1 i ce-detective-named-foreman-of-grand-jury-that-may/article _ ae 19351 4-f9ab-518a-9046-7afc454d0351.html
I further certify that Appendix 1 is a true, correct copy of a newspaper article from the Waco Herald Tribune downloaded from:
http://www.wacotrib.comlnews/twin-peaks-biker-shooting/retired-jud ge-sought-to-hear -twin-peaks-bikers-examining -trials/article _ Oa5c3 f5 2-eb8c-5f87-97b8-e27b566654c4.html
VERIFICATION STATE OF TEXAS
COUNTY OF DALLAS
F. Clinton Broden, being duly sworn, under oath says: "The preceding Declaration is true and correct."
F. Clinton Broden SUBSCRIBED AND SWORN 0 BEFORE ME THIS 14th DAY OF SEPTEMBER, 2015.
SARAH E KLEIN
My Commission hpi, •• June 7. 2011
[1] See Brief of Amicus Curiae Texas Criminal Defense Lawyers Association at 13 (“Relator’s refrain that the gagging of his adversary was sought for the charity of the same people his office has publicly denigrated has a cynical, self-serving ring.”).
[2] The complaints for all 177 are identical with the exception of the name of the accused. The arrests arose out of gun fire on May 17, 2015 at the Twin Peaks restaurant in Waco, Texas which resulted in the death of nine motorcyclists and injuries to several others. To this day the gag order has contributed to preventing the public from learning how many of those motorcyclists were killed or injured by law enforcement officials.
[3] See Texas Disciplinary Rules of Professional Conduct 3.07, Comment 3 recognizing the possible necessity of making public comments to “counter the unfair prejudicial effect of another public statement.”
[4] See Respondent’s Appendix 2. Both items in Respondent’s Appendix in this Court were presented to the Tenth Court of Appeals in supplements to Mr. Clendennen’s Emergency Petition for Writ of Mandamus in that court.
[5] For example, the public policy issues involved in this case include: (1) the arrests of 177 people based on “fill-in-the name” criminal complaints without individualized probable cause; (2) $1,000,000 bonds set in all cases to “send a message” by a lay Justice of the Peace; (3) comments by the elected District Attorney equating silence with guilt; (4) numerous civil rights lawsuits; (5) a grand jury headed by a Waco Police detective who apparently participated in the investigation; (6) public comment by a sitting judge lauding the selection of the police detective to the grand jury; (7) the recusal of the justice of the peace who set the bonds and signed the criminal complaints; (8) the appointment of a lawyer by county commissioners to represent the recused judge; (9) numerous group protests by motorcyclists on the streets of Waco; and (11) the cost of the entire incident and the effect the criminal proceedings and civil proceedings will have on the city and county budgets.
[6] References to “State’s App” are to the State’s Appendix filed in this Court in connection with its Petition for Writ of Mandamus and Motion for Stay of Writ of Mandamus.
[7] As of the filing of this brief, Mr. Clendennen has not been indicted.
[8] Paradoxically, the video that was referred to in the KCEN interview that the State expressed concerns about being released is the very same video that Police Chief Stroman announce to the press that he had seen and wanted released because it would show the public “what happened.” See State’s Appx. 5 (Video E). Moreover, the District Court ultimately entered a protective order prohibiting the release of the video.
[9] For example, Mr. Clendennen’s counsel represents two of the other motorcyclists th arrested; one of whom had his Writ of Habeas Corpus regarding bond hearing in the 19 District Court. The gag order apparently does not constrain undersigned counsel’s discussions with the th media in those cases nor would it seem possible for the 54 District Court to even attempt to control cases pending in other courts.
[10] For example, Mr. Clendennen filed his own federal civil rights lawsuit against Abelino Reyna- the very person who has sought to silence him with the gag order although he later dismissed it with the intent to add defendants and refile. See Clendennen v. Chavez , et. al., No. th 15-CV-173 (W.D. Tex.). Likewise, there is a civil lawsuit pending in the 44 District Court of Dallas County between Twin Peaks and a neighboring restaurant over whether the neighboring restaurant loss business as a result of what happened at Twin Peaks. See DC Waco Restaurant, Inc. D/b/a Don Carlos Restaurant vs. Peaktastic Beverage, LLC D/B/A Twin Peaks Restaurant, et. al. , No. DC-15-05787. Finally, other suits have been filed by persons injured or killed at Twin Peaks on the day of the incident.
[11] This tactic was strongly condemned by the United States Court of Appeals for the Seventh Circuit. Gangs generally arouse negative connotations and often invoke images of criminal activity and deviant behavior. There is therefore always the possibility that a jury will attach a propensity for committing crimes to defendants who are affiliated with gangs or that a jury's negative feelings toward gangs will influence its verdict. Guilt by association is a genuine concern whenever gang evidence is admitted.... * * * * This is especially true given the prosecutor's statements during the trial and closing argument. The prosecutor consistently used the term “motorcycle gang,” specifically choosing it over the far less prejudicial term “motorcycle club,” even after the judge instructed him to refrain from using the term “gang.” In addition, he openly mocked the use of the term “club” in his questions, clearly suggesting to the jury that the term was a total misnomer for the group. Most importantly, the prosecutor essentially asked the jury to associate criminal activity with the gang and to draw the improper inference of guilt by association. He argued in closing that there was plenty of evidence that Pastor was guilty, as Pastor was a member of a motorcycle gang that wears “dirty, nasty colors and do[es] things,” and further that it denies common sense that the Diablos are “an upstanding social group” or “club.” This argument was allowed to stand over the objection of the defendants. The prosecutor's obvious attempt to exploit the prejudicial quality of the motorcycle gang evidence almost certainly heightened any impact the improper gang testimony had on the jury's verdict against Pastor. th United States v. Irvin , 87 F.3d 860, 865-66 (7 Cir. 1996) (emphasis added).
[12] This Court applies “the clear abuse of discretion” standard for reviewing the mandamus action of a court of appeals. Dickens v. Second Court of Appeals , 727 S.W.2d 542, 549-50 (Tex.Crim.App.1987).
[13] Chicago Council of Lawyers v. Bauer , 522 F.2d 242, 249 (7th Cir. 1975), cert. denied sub nom. Cunningham v. Chicago Council of Lawyers , 427 U.S. 912 (1976).
[14] See, e.g., United States v. Ford, 830 F.2d 596, 600-02 (6th Cir. 1987) ; Levine v. United States District Court , 764 F.2d 590, 596 (9th Cir. 1985).
[15] th United States v. Brown , 218 F.3d 415, 427-28, 428 n.16 (5 Cir. 2000). See also United rd States v. Scarfo , 263 F.3d 80, 93 (3 Cir. 2001) (Applying “substantial likelihood test).
[16] See, e.g., In re Russell, 726 F.2d 1007, 1010 (4th Cir. 1984) ; United States v. Tijerina, 412 F.2d 661, 666–67 (10th Cir. 1969).
[17] These two cases can be immediately distinguished from In re Houston Chronicle Pub. th Co ., 64 S.W.3d 103 (Tex. App.–Houston [14 Dist.] 2001) one of the only state cases upholding a gag order and a case on which Relator heavily relies. In Houston Chronicle, “the prior restraint on speech was not the subject of a constitutional challenge from any individual who was the subject of the order.” Benton , 238 S.W.3d at 601, n. 25. Moreover, in Houston Chronicle , the defendant had been indicted and the parties warned about prejudicial publicity prior to the entry of the gag order. Houston Chronicle , 64 S.W.3d at 105.
[18] This is similar to the instant gag order which purports to be concerned with “pre-trial publicity that will interfere with the defendant’s right to a fair trial by an impartial jury.”
[19] For example, in Houston Chronicle the record established that the District Court did first engage in less restrictive alternatives such as admonishing counsel not to give interviews which would potentially jeopardize the defendant’s trial rights. Houston Chronicle, 645 S.W.3d at 110.
[20] As the United States Supreme Court noted in United States v. Skilling, 561 U.S. 358 (2010), the prejudicial effect of media coverage dissipates over time. Id . at 383 (Upholding
[21] To put the gag order in this case, which was entered only a month after Mr. Clendennen’s arrest, into perspective, a review of the docket sheets in the other infamous Waco case- the Branch Davidian case- reveals that a “gag order” was not entered until approximately eight months after charges were filed and just shortly before trial. See United States v. Schroeder , 6:93-cr-00046 (W.D. Tex). Moreover, in the recent “Boston Bomber” case there does not appear to have been any gag order entered. See United States v. Tsarnaev , No. 1:13-cr-10200 (D. Mass.).