Dallas attorney Clint Broden has been loudly skeptical of the repeated and clumsy lies official Waco has been telling the public since nine men were murdered outside the Twin Peaks restaurant on May 17. Broden has been sending out daily press releases and holding news conferences on the case for two weeks. Today State District Judge Matt Johnson, at the instigation of District Attorney Abel Reyna, forbid Broden from discussing the Twin Peaks Massacre publically.
Johnson issued the order at a subpoena hearing. Broden had subpoenaed video shot by the Twin Peaks restaurant on May 17 in order to better defend his client, a Scimitar Motorcycle Club member named Matt Clendennen. Johnson told Broden he could have the video but he could only show it to Clendennen and any experts he night hire.
The gag order is not a surprise. Reyna has been threatening defense attorneys with it for at least a fortnight. When contacted by telephone, a representative of Broden’s Dallas law firm, Broden, Mickelsen, Helms & Snipes, tersely explained that the gag order also forbids anyone at the firm from discussing the gag order or the process under which the gag order may be appealed.
Nevertheless, it is a matter of public record that Broden intends to appeal the gag order and hopes to release the video. Numerous officials in Waco have already discussed the video publically and have, apparently, lied about its contents. The gag order seems intended to protect public and police officials from being confronted with their own lies. Johnson said he was forbidding discussion of the evidence because he was concerned about contaminating the jury pool. The standard reason for issuing gag, or “protective,” orders is to protect a person’s right to a fair trial. Considering the extent to which Waco officials, particularly Waco police propagandist W. Patrick Swanton, have already prejudiced most of the world against the defendants in this case, Johnson’s argument seems absurd.
There is no certainty that the gag order will eventually be overturned but it seems likely that it will be.
Gag orders oppose the people’s right to know and in numerous cases they are opposed by large and rich news gathering organizations like The Associated Press but in this case, the AP has already seen the video Broden subpoenaed this morning and publically described it. Since a case titled Nebraska Press Ass’n v. Stuart, courts have been forbidden from restraining what the press may say or to whom it may talk. But only the lawyers in Waco are being restrained. Restrictions on lawyer speech are usually justified by the claim that attorneys are officers of the court and thus are more subject to court-imposed limits to preserve the “fairness” of a trial.
A Tale Of Two Reynas
Next the Twin Peaks video will be “discovered” to every other lawyer in the case and all of those lawyers will be subject to the same gag order the judge issued this morning. When that happens, coverage of the Twin Peaks Massacre will, for all practical purposes, cease.
The constitutionality of gag orders is unresolved and subject to considerable debate. Constitutional scholar Erwin Chemerinsky has argued that defense lawyers should be no more subject to gag orders than the press is. In court this morning, Broden offered Judge Johnson a cogent and ironic argument against the gag order imposed on him.
Broden cited a March 2007 by Texas 10th Court of Appeals that said a similar gag order issued by state district Judge Reva Towslee-Corbett was overly broad and was “a clear abuse of discretion.” The author of that decision was Judge Felipe Reyna. Reyna found that Towslee-Corbett’s gag order was a prior restraint of free speech that is “presumptively unconstitutional,” without specific evidence that the gag was necessary to prevent “imminent and irreparable” harm to the outcome of the trial and without proof that the gag order was the “least restrictive means” to prevent that harm. Judge Reyna is the father of the McLennan County District Attorney who requested and got this morning’s order against Broden.