No. 2015-1955-2 THE STATE OF TEXAS, ) 54™ DISTRICT COURT ) Plaintiff, ) MeLENNAN COUNTY, TEXAS ) % ) ) MATTHEW ALAN CLENDENN! ) ) Defendant. ) a) OBJECTION TO GRAND JURY It was reported in the Waco Tribune Herald that a grand jury has recently been selected in McLennan County and that the foreperson of that grand jury is Waco Police Detective James Head, who has served with the Waco Police Department for twenty-four years.' The Waco Tribune Herald further reported that Detective Head’s grand jury may consider Mr. Clendennen’s case as well as the 176 related Twin Peaks’ cases. Detective Head has given no indication that he will recuse himself if those cases are considered by the grand jury over which he presides. The Waco Tribune Herald quotes Detective Head as saying he was “not really” involved in the Twin Peaks case. Putting Detective Head’s non-answer as to his involvement in the Twin Peaks case, it in fact, does appear that he was actively involved in executing search warrants in connection with the case. Likewise, upon information and belief, Detective Head may have been at the Waco Convention Center on May 17, 2015 and questioned defendants * http://www. wacotrib.com/news/twin-peaks-biker-shooting/waco-police-detective-named- foreman-of-grand-jury-that-may/article_ae193514-fab-518: Tafe454d0351.html Objection to Grand Jurywhose cases might come before the grand jury The Court of Criminal Appeals has stated in Muniz v. State, 573 S.W.2d 792, 796 (Tex. Crim. App. 1978) that a grand jury array “must be challenged at the first opportunity.” Therefore, out of an abundance of caution, Mr. Clendennen objects to having his case considered by Detective Head’s grand jury as a violation of his right to due process and due course of law under the Texas Constitution. As noted by former Supreme Court Justice Sandra Day O*Connor, albeit when talking about petit juries: While each case must turn on its own facts, there are some extreme situations that would justify a finding of implied bias. Some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction. Smith v. Phillips, 435 U.S. 209, 222 (1982). This is known as the “implied bias” doctrine. See, e.g, Brooks v, Dretke, 444 F.3d 328 (5" Cir. 2006) Indeed, the very concept of the grand jury is eviscerated by Detective Head’s presence in the grand jury room. As one court noted: The purpose of the grand jury is “to provide a fair method for instituting criminal proceedings.” The grand jury serves an important constitutional function as a check on prosecutorial power; it is “a protector of citizens against arbitrary and oppressive governmental action.” Its issi to clear the innocent, no less than to bring to trial those who may be guilty.” In order to perform its role, the grand jury must remain both independent and informed. United States v, Dorman, 532 F. Supp. 1118, 1131 (N.D. Ill. 1981). ‘The Detective Head grand jury is reminiscent of an old J Love Lucy episode in which the ? Mr. Clendennen himself is unsure whether Detective Head questioned him. Objection to Grand Jurysame police officer who stopped Ricky for speeding in a small Southern town was also the judge and jury at his trial on the speeding ticket. It also brings to mind the following comic: A cat killer? Is that the face of a cat killer? Cat chaser maybe. But hey—who isn’t?” The reason, of course, that the / Love Lucy episode is funny is because its premise is so ridiculous. Unfortunately, however, the prospect that Mr. Clendennen might be indicted for a capital felony and his only “check” is a grand jury led by a police officer, who worked for 24 years with the investigating agency and who participated in the investigation is hardly a laughing matter. Indeed, it would lead any reasonable person to be flabbergasted. Mr. Clendennen, of course, recognizes the holding in Williams v. State, 321 S.W.2d 72, Objection to Grand Jury74 (Tex. Crim. App. 1958) that peace officers are not prohibited in serving on grand juries. Nevertheless, the peace officer in Williams was a night watchman and he was not involved in the case at bar. Williams also predates the concept of “implied bias.” How could a grand jury led by Detective Head “provide a fair method for instituting criminal proceedings” against Mr. Clendennen and other motorcyclists? It offends due process and the due course of laws that this is the “check” MeLennan County offers Mr. Clendennen against police overreaching and “arbitrary and oppressive governmental action.” Likewise, the citizens of MeLennan County deserve to have confidence in the decisions made by it grand juries and know that its grand juries truly do function to “clear the innocent, no less than to bring to trial those who may be guilty.” For the foregoing reason, if the Detective Head grand jury is going to consider Mr. Clendennen’s case, he objects.” * In light of the fact that District Attorney Abelino Reyna made comments to the Waco Tribune Herald regarding Detective Head’s grand jury and given that Mr. Reyna is subject to the Court’s gag order in State v. Clendennen, Undersigned Counsel contacted the District Attorney's Office to determine if there was a gag order violation After this motion was drafted, Counsel was informed by the District Attomey’s Office that it was “fairly certain” that this grand jury would nor be considering any of the motorcyclist cases. If that is the case then “grand jurygate” is much ado about nothing. Nevertheless, in the even that does not prove to be the case, Mr. Clendennen believes it necessary to file this objection out of an abundance of caution. Objection to Grand JuryObjection to Grand Jury Respectfully submitted, F. Clinton Broden ‘TX Bar 24001495 Broden, Mickelsen, Helms & Snipes LLP 2600 State Street Dallas, Texas 75204 214-720-9552 214-720-9594 (facsimile) Attomey for Defendant Matthew Alan ClendennenCERTIFICATE OF SERVICE 1, F. Clinton Broden, do hereby certify that, on this 10" day of July, 2015, 1 caused a copy of the foregoing document to be served on McLennan County District Attorney's Office, 219 N 6th St Waco, TX 76701 by first class mail, postage prepaid. F. Clinton Broden Objection to Grand Jury