The ornate double-dome stained glass ceiling of five-pointed stars
Waco- In remarks before the appeals court today, the attorney representing Matthew Clendennen vowed that he would call District Attorney Abel Reyna to the witness stand to testify about his decision to have police arrest everyone at the bloody scene of a gunfight between bikers that resulted in 9 deaths and 20 wounded by gunshots fired not only by bikers but by police, while 177 faced identical charges on May 17, 2015.
Said F. Clinton Broden, when questioned by the Court, that he would call Reyna as a witness because “Due process says my client has a right to.”
At one point, Chief Justice Tom Gray hinted that evidence could be suppressed and the case dismissed.
As courtrooms go, the 10th District Court of Appeals is gaudier than most with its 14 veined marble Corinthian columns, guilded cornices and individual padded leather chairs arranged in a semicircle before the three-judge panel.
If looks alone count, one knows that this is an expensive place to air one’s grievances against the state.
The questioning led by Chief Justice Tom Gray into the matter of whether Matthew Clendennen, a member of the Scimitars Motorcycle Club on May 17, 2015, who sat down at a patio table, ordered a hamburger, and immediately took a position on the floor when shooting broke out was denied his right to due process of law became incisive and at one point testy.
F. Clinton Broden of Dallas, who has practiced criminal law now for 30 years, refused to be swayed from his central point, that District Attorney Abel Reyna lied from the witness stand when he said that he admonished Detective Manuel Chavez to make dead sure he could testify to every part of the allegations of complaint in an identical affidavit of arrest he had drafted by an assistant prosecutor for Chavez to sign.
When recalled to the witness stand, Chavez said he had not talked to Reyna at any point during the day of May 15.
Broken said, “There is some reason why Abel Reyna is lying about these proceedings.”
Justice Gray then said, “I don’t approve of the characterization of Abel Reyna’s testimony as lying.”
Visibly shocked, Broden replied, I’ve never in 30 years had occasion to do so…” He added that when he quizzed Reyna on the witness stand about his exposure to liability for that very complaint when he took over a police investigation and persuaded Waco’s top cop to let him charge everyone with the same offense, Reyna lied when he said his employer’s insurance coverage would indemnify him for any error or omission at law.
But his insurance attorney, pointed out Broden held otherwise. There are 15 federal denial of civil rights cases pending in U.S. District Court at Austin. According to legal representatives of the insurance carrier, only a small part of the potential exposure for damages is indemnified by the McLennan County insurance policy.
Therefore, he has a huge financial interest in obtaining convictions in the cases as charged for identical offenses of engaging in organized criminal activity.
None of the Chief Justice’s questions could shake Broden up. He steadfastly answered all challenges as voiced by Sterling Harmon of the District Attorney’s staff with the rejoinder, “We still have Reyna being the only one to explain why Clendennen went from being a witness to being a defendant.”
By logical extension, the same is true of most of the 177 persons so arrested and charged on that date, their bail set a $1 million to “send a message.”
Mr. Harmon said, “There has been a misconception as to what a District Attorney’s job is…” According to him, the DA has broad and sweeping powers to determine the proper charge and set plea bargains. He gave a long list of such tasks as defined by a recent court decision involving a legal case on point with the question involving the Twin Peaks cases.
Said Gray, “The one that doesn’t seem to be in that laundry list is arrest.”
Harmon replied, “I can assure you the DA of McLennan County did not arrest anybody.”
But Broden countered that argument when he got a chance to rebut Harmon’s statement to the Court.
He said that Reyna never told the Chief of Police Brent Stroman, who was vacationing with family in Baltimore, what charge he intended to file. In an earlier hearing, Stroman testified, “I never knew.”
Harmon had argued that “materiality” would pull the iron of the fire on that pesky problem because, “As long as you’re within the four corners of that arrest affidavit…”
Asked the Judge, “How do you get past the fact that the testimony asserted there was a conversation, and the Detective said there was not?”
Associate Justice Rex Davis asked, “If Reyna has to testify, should he be disqualified?”
In a word, Harmon replied, “No.”
He said there is a “plethora” of other witnesses who could testify.
Broden countered by pointing out transcripts from the unsuccessful August hearing before Judge Matt Johnson of 54 Criminal District Court showed that none of the detectives had knowledge of Reyna’s intentions until they became accomplished by the draft of an affidavit of warrantless arrest prepared by Assistant Prosecutor Mark Parker.
In concluding the hearing, Justice Gray said “This case has been submitted for our decision.”
The world awaits that event.