Citing “pervasive, prejudicial, and inflammatory” publicity Waco defendant Matt Clendennen and his lawyer, Clint Broden, filed a change of venue motion in the 54th District Court in Waco today. Clendennen is currently scheduled to stand trial later this month. He is charged with being part of a criminal conspiracy to commit murder and assault.
In a most amusing, 19 page motion, Broden singled out McLennan County District Attorney Abelino Reyna, Waco Police spokesman Patrick Swanton, Justice of the Peace W.H. Peterson, Texas Governor Greg Abbott, Waco Mayor Malcolm Duncan Jr. and the Waco Tribune-Herald for prejudicial statements and coverage that created “a reasonable probability that an impartial jury cannot be empaneled” to try Clendennen or the other defendants.
For example, shortly after the arrests Reyna gave a television interview in which he stated: “I know this. I know the motto of the Cossacks is to take care of your own. So if you are showing up with those colors, you’re backing your brother. And if your brother is out there shooting a gun, and you are taking care of your own, and as many weapons as were found out there, they weren’t out there just to eat lunch. They weren’t out there just to have their little meeting. They meant business and they fall under the definition of criminal street gang. They were engaging in organized criminal activity and at this point, that’s what the evidence to us points.”
In that interview, Reyna made repeated references to “gangs.”
Broden writes, “The calculated use by all state actors of the term ‘biker gangs’ when speaking to the media presumed guilt and was highly prejudicial.”
He cites a case titled U.S. v. Irvin from the Seventh Circuit in the which the Appeals court ruled: “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…. 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….”
In the same interview, Reyna stated, “I can tell you that, again, if someone is claiming that they were a victim and they decided to put on their, their jacket or whatever, and they said they’re going to be a member of this gang or what have you, I can tell you this, that if you are a victim of this, then I would fully expect that you would act like a victim and I just say I’m not seeing that.” Brodin points out that in decision well established in case law, titled Doyle v. Ohio, the Supreme Court ruled that a lack of cooperation with the police is not evidence of guilt.
Broden thinks, “The guilt presuming comments by Reyna made on local television alone would be enough to justify a change of venue in this case.”
Brodin points out that “Waco Police Spokesman Patrick Swanton held at least six press conferences,” using “his time in the limelight to plant the seeds for his entry into the 2016 race for the office of Sheriff of McClennan County.”
In his first press conference, Swanton “used the term ‘gang(s)’ approximately seventeen times in nineteen minutes.”
In another, Swanton “used the term ‘gang(s)’ approximately seventeen times in seventeen minutes. Indeed, Swanton would have made a communications professor proud. In the early press conferences most reporters properly referred to the motorcycle groups as ‘clubs,’ but as the press conferences go on and after having been indoctrinated by Swanton most reporters also began referring to the motorcycle groups as ‘gangs.’”
“When he was challenged by a reporter on the use of the prejudicial term ‘gangs’ and asked if they were actually ‘clubs,’ Swanton quickly responded: ‘If anybody told you it was a biker club, they lied. They are a criminal gang and they are a biker gang. We know exactly who they are and they are criminal element…a bunch of criminal element biker members that came to Waco and tried to instill violence in our society.’”
The Waco Paper
Brodin also thinks coverage in the Waco Tribune-Herald was prejudicial. So far, the newspaper has run “219 news stories about ‘Twin Peaks’ and 71 editorials/letters about ‘Twin Peaks.’”
The paper headlined stories: “Police Believe Five Motorcycle Gangs Involved in Deadly Twin Peaks Shootout” and “Brutal Violence at Twin Peaks Exposes Fault Lines in Motorcycle World.”
The Tribune-Herald quoted widely discredited, former ATF agent Jay Dobyns who said: “I think, as a society, and to a large extent even in law enforcement, we fall into the sense that these guys are these big, rough-looking teddy bears that do blood drives and toy runs and are harmless. These are people that have used the motorcycle culture as camouflage.”
“You look at crime syndicates,” Dobyns continued. “They come to America from other places. But the biker culture? That is America’s export to the…world of crime syndicates.”
The paper editorialized: “Critical details about the deadly shootout that erupted between rival biker gangs Sunday at Twin Peaks will bubble to the surface in days, weeks and months to come, but the hard evidence so far is grim: heavily armed motorcycle gangsters getting into a high-noon brawl near families dining out after Sunday service. Nine biker-gang members dead, 18 injured, more than 170 incarcerated on charges of organized crime with bonds of $1 million each.”
Another local editorial began, “Some might say that the dead of a motorcycle gang linked with drug trafficking, prostitution and violence rate no special consideration.”
And the paper published numerous prejudicial letters to the editor. Like the one that read: “I just looked at most of the mug shots of the motorcyclists involved in the mess in Waco. What a bunch of losers. I haven’t seen such dirty, sloppy-looking men in my life: hair dirty, clothes dirty – some looked like they were on drugs/alcohol. I bet none of them had an IQ above 90, if that. I can’t imagine the management of Twin Peaks allowed them in there. They should be arrested for giving the bikers a place to meet.”
“If there was ever a case in which the ‘publicity was pervasive, prejudicial, and inflammatory’” Broden concludes, “this is the case. If there was ever a case in which the release of the prejudicial information is connected to ‘government officials,’ this is the case. If there was ever a case that demanded a change of venue, this is the case. District Attorney Reyna and Police Department Spokesman Swanton made concerted and repeated efforts to taint the McLennan County jury pool. Consequently, the legitimacy of any verdict returned without a change of venue would be forever questioned.”