By Tommy Witherspoon
Originally published June 30, 2015
A state district judge ruled Tuesday that a Dallas attorney can have a copy of a Twin Peaks franchisee’s video of the May 17 biker shootout, but the judge barred the release of the video to the public.
Judge Matt Johnson of Waco’s 54th State District Court also granted a prosecution request to place a gag order in the Matthew Alan Clendennen case, preventing attorneys on both sides, law enforcement officers and witnesses from discussing that case only in the media.
In arguing his case for release of the video, Dallas attorney Clint Broden said he needs to review the video to prove his client’s innocence and to help him prepare for an examining trial set for Aug. 10.
Broden told the judge it “boggles my mind” that police and prosecutors can describe what is on the video but his client could not get a copy to help prepare his defense. He also said the Associated Press viewed the video and reported on it.
He argued the city’s contention that release of the video would impede its investigation is not valid because it posts videos of armed robberies on Waco Police Department social media accounts.
“Former Supreme Court Justice (Louis) Brandeis may have said it best, your honor. ‘Sunshine is the best disinfectant,’ ” Broden said.
The judge said he placed the video under a protective order because he is concerned about tainting potential jury pools. Broden said he intends to appeal the protective order and the gag order to Waco’s 10th Court of Appeals.
Waco Assistant City Attorney Judith Benton asked the judge to throw out the subpoena, alleging in her motion that Broden was trying to “circumvent the criminal discovery rules by seeking records in a criminal case from a nonparty.”
Broden said in a motion that the city has no standing to intervene, saying the “video in question belongs exclusively to the Twin Peaks franchisee and that the city of Waco has no ownership interest in the video whatsoever.”
Broden also charged the district attorney’s office with violating the Michael Morton Act, a law that requires prosecutors to disclose evidence in criminal cases.
Prosecutor Mark Parker told the judge that the state has every intention of complying with the rules of discovery but said the case is complex, is still under investigation and forensic testing is ongoing. He said the DA’s office will comply with discovery, but had not intended on doing so in “piecemeal fashion” one case at a time.
Broden countered that the video he was seeking does not belong to the state, but to Twin Peaks.
Parker asked for the protective order, saying Broden intended to disclose it to the media in violation of ethical standards limiting pretrial publicity.
Broden argued against the gag order and cited an opinion written by former Justice Felipe Reyna while he served on the 10th Court of Appeals. Broden noted the irony of citing that case when prosecutors who work for Reyna’s son, District Attorney Abel Reyna, were in court pushing for a gag order.