WR-83, 719-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
September 14, 2015 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
In the 54th District Court, McLennan County
Honorable Matt Johnson, Presiding
Appellate Cause No. 10-14-00235-CR
10th 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
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
2
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.”2 Then, Relator’s office requested a gag order limiting the right to free speech
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
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,”4 the citizens are satisfied
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
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.
4
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 issues5 involved counsel strongly against the gag order.
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.
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.
5
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
6
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) [14th
District] 2007]...........................................................................34
3. In re Graves, 217 S.W.3d 744 (Tex. App. - Waco 2007)...35
C. United States v. Ford, 830 F.2d 596 (6th Cir. 1987) and United
States v. Wilson, 925 F.Supp.2d 410 (E.D.N.Y. 2013)......................36
D. Instant Case...................................................................................38
7
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
8
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
Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th 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
In re Benton, 238 S.W.3d 587 (Tex. App. - Houston [14th District]
2007)......................................................................................................34, 35, 41, 44
9
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 [14th
Dist.] 2001)..................................................................................................34, 38, 40
In re Russell, 726 F.2d 1007 (4th Cir. 1984)............................................................31
Levine v. United States District Court, 764 F.2d 590 (9th 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
United States v. Brown, 218 F.3d 415 (5th Cir. 2000).............................................30
United States v. Ford, 839 F.2d 596 (6th Cir. 1987)..............................30, 36, 41, 43
United States v. Irvin, 87 F.3d 860 (7th Cir. 1996)..................................................22
United States v. Scarfo, 263 F.3d 80 (3rd 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
United States v. Tijerina, 412 F.2d 661 (10th Cir. 1969).........................................31
United States v. Tsarnaev, No. 1:13-cr-10200 (D. Mass.).....................................46
10
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
11
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.
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.
12
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.
13
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.
14
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.
15
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
16
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
17
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;
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.
18
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.
9
For example, Mr. Clendennen’s counsel represents two of the other motorcyclists
arrested; one of whom had his Writ of Habeas Corpus regarding bond hearing in the 19th District
Court. The gag order apparently does not constrain undersigned counsel’s discussions with the
media in those cases nor would it seem possible for the 54th District Court to even attempt to
control cases pending in other courts.
19
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
grave public concern to the justice system. Nevertheless, the Judge of the 19th 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?”).
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.
15-CV-173 (W.D. Tex.). Likewise, there is a civil lawsuit pending in the 44th 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.
20
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.
21
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
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.
United States v. Irvin, 87 F.3d 860, 865-66 (7th Cir. 1996) (emphasis added).
22
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!
23
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.
24
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
25
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.
26
ARGUMENT12
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
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).
27
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
28
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
29
(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.13 Other courts of appeals require a showing of a “clear and present
danger” to the proceedings in order to justify a gag order.14 The United States Court
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.15 Still other federal
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
United States v. Brown, 218 F.3d 415, 427-28, 428 n.16 (5th Cir. 2000). See also United
States v. Scarfo, 263 F.3d 80, 93 (3rd Cir. 2001) (Applying “substantial likelihood test).
30
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.
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).
31
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....
32
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
33
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
[14th District] 2007)
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
17
These two cases can be immediately distinguished from In re Houston Chronicle Pub.
Co., 64 S.W.3d 103 (Tex. App.–Houston [14th 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.
34
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.18 It then noted that the district
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.
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.”
35
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.
C. United States v. Ford, 830 F.2. 596 (6th 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.
36
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).
37
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
38
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
39
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
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.
40
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
41
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
42
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
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
43
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.”).
44
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
45
“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.21 Nevertheless, in those other
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”
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.).
46
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
47
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.
48
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
49
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
50
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
51
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 ...
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Waco police detective named HOH To: Remov e Dark Spot:..
foreman of grand jury that may hear
Twin Peaks cases
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[mat l'II!m
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
Wednesday morning A Waco polICe detecu.... e was has spent 26 ye ars \\1th Waco PO, was among
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
shootmgs, t hr grand jury and, beyond that. 19th State Warehouse lofr project
District Judge Ralph Strother selected Head wins less downtown
8!Jy Ihis photO Waco TIF money than
to serve as the foreman.
requesled
After the 12 members of the grand jury, plus
View aU 4 images in gaJlery, two aiterntltes, were chosen, Hend, wearing
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
1 of 4 91l41lS11:0SAM
Waco police detective named foreman of grand jury that may he ... http://www.wacotrib.com/news/tw i n- peaks- bi ker-shooting/wac ...
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
officers' action s in response to th~ melee that broke Ollt between rival bike r groups thllt day.
~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?"
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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
"Of course, it is lip to the judge, but it would be very difficult for a police officer [0 serve,K she MOTORS
sa id. All of the cases th e grand jl1 ry considers are criminal cases, and in many ci rcu mslances,
K
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
jilt)' PLEASANT
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 chin Re the State of Texas Ex Rel. Abelino Reyna, Relator v. Court of Appeals for the Tenth District
Combined Opinion