The DA Who Is Trying To Shut Up 177 Arrested Waco Bikers Won't Shut Up

The prosecutor's verboten public comments illustrate why comprehensive protective orders like this one are, and should continue to be, disfavored.

Abel Reyna should have been careful of what he wished for.

Reyna, the McLennan County, Texas District Attorney who requested a sweeping gag order following the the arrest of 177 bikers at a shooting at the Twin Peaks restaurant in Waco, has had a hard time complying with that order himself.

On June 30, Judge Matt Johnson issued the order at the request of his former law partner, current District Attorney Abel Reyna. In August, the 10th Court of Appeals found that Judge Johnson abused his discretion and vacated Johnson’s order. DA Reyna appealed. On August 13, the Texas Court of Criminal Appeals issued a stay on the intermediate court’s order to vacate, pending the high court’s review of the appeal on the merits — meaning that the gag order remains in place unless and until the CCA says otherwise. This Wednesday, October 7, the appeal was submitted to the CCA.

The Texas Court of Criminal Appeals, the state’s highest court in criminal matters, must now decide whether the extraordinary order covering 177 Waco bikers, as well as officials, attorneys, and witnesses to the May 17 shooting, passes constitutional muster.

Gag orders, even in criminal cases, are presumptively unconstitutional prior restraints on free speech. They stifle the expression of litigants and witnesses, hog-tie journalists trying to hold the justice system accountable, and intentionally keep the concerned public in the dark. Only in dire circumstances, where a criminal defendant’s Sixth Amendment right to a fair trial will be compromised if the court employs less restrictive means, are gag orders permissible under the First Amendment. Courts must find alternatives such as vigilant voir dire, juror sequestration, and changes of venue insufficient to protect the process.

McLennan County District Attorney Abel Reyna argues in the state’s brief that the forced silencing will protect the constitutional rights of criminal defendants in cases related to the Twin Peaks shooting.

The real party in interest in the case on appeal to the CCA is Matthew Alan Clendennen, who was among the many motorcycle enthusiasts arrested on May 17. In his brief, Clendennen’s lawyer, F. Clinton Broden, argues that the gag order is ineffective protection of the integrity of the process, after Waco officials aggressively spun the story of the Twin Peaks shooting to the press in the days following the incident. Moreover, the court overlooked other ways of ensuring an impartial jury and a fair trial.

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Neither Reyna nor Judge Johnson, both authorized under Texas Rules of Criminal Procedure to push to move the Waco bikers’ trials out of McLennan County, suggested a venue change.

Counsel for 33 of the other criminal defendants themselves, the Texas Criminal Defense Lawyers Association, and the Reporters Committee for Freedom of the Press and 24 media organizations side with Clendennen.

Shutting Up Is Hard To Do

The same person who requested the gag order in the first place has had a hard time following the gag order since Judge Johnson issued it.

You can read the full gag order here. Notice that item 2 of the order provides,

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“All attorneys, their staffs, and law enforcement officers involved in this case shall not discuss this case with the media.”

Yet District Attorney Reyna has released statements to the media on several occasions since the June 30 order.

On July 8, Reyna gave a press interview defending the selection of a 26-year Waco police veteran as foreperson for the next grand jury. Although the pool of potential jurors was assembled through the state’s new method of random selection, 19th State District Judge Ralph Strother picked police detective James Head to serve as the foreman once the grand jury was impaneled. Reyna assured the media, “He was chosen totally at random, like the law says.”

On September 18, KWTX News in Waco reported that Reyna issued a brief statement to the media in response to the Associated Press receiving leaked incident reports. Reyna told the press:

“Someone violated their ethical and legal obligations in making the material available to the AP. Our focus in the Twin Peaks matter will remain on the facts and the law and not the ridiculousness that is occurring all around it.”

On September 21, Broden then filed an emergent motion with the Texas Court of Criminal Appeals, asking that the stay of the gag order be vacated because Reyna, in violating the same gag order he was pursuing on appeal, was coming to the court with unclean hands.

Perhaps Abel Reyna didn’t quite get the meaning of the gag order he had asked for. Perhaps he was trying to enact his own version of the Liar’s Paradox.

In any case, Abel Reyna sent a press release to a local TV news outlet in response to Broden’s motion. The statement said:

“The allegation that I violated the gag order in any form or fashion is just another example of the ridiculousness I referred to in my statement.”

Gag Others As You Would Have Them Gag You

Even seen in a charitable light, Reyna’s verboten public comments illustrate why comprehensive protective orders like the one in this case are, and should continue to be, disfavored.

The scope of Judge Johnson’s order is massive. The order covers, in effect, hundreds of people. The order is broader than the minimums suggested by even the stingiest of past court decisions, such as the Fifth Circuit’s U.S. v. Brown, a case that the state mistakenly seems to think is favorable to their cause.

In Brown, the court sustained a gag order but argued that the order was sufficiently narrow because “the district court did not impose a ‘no comment’ rule, but instead left available to the parties various avenues of expression, including assertions of innocence, general statements about the nature of an allegation or defense, and statements of matters of public record.”

Johnson’s order makes no such exceptions.

DA Reyna might have appreciated a narrower gag order when Clendennen supplemented his filing with the CCA to include the unclean hands argument.

A person’s desire to speak to media about a case can be, and often is, born of good faith, with no intent to defraud, or deceive, or subvert the interests of justice. An attorney, a criminal defendant, a civil litigant, or a witness may want to respond plainly and publicly to a recent case development. A person involved in a case may want to clarify a misconception, or simply communicate basic information they believe the public ought to know. This is not always a stratagem or sophistry, even if it’s not entirely neutral or objective.

Unethical people can be deterred or punished without gag orders. Attorneys not bound by a gag order are nonetheless bound by rules of professional responsibility, and sometimes by law. A court concerned with a party’s or a witness’s mendacity with media can pursue perjury, obstruction of justice, or contempt of court charges, depending upon the specific facts.

Our adversarial justice system inevitably leads to different actors advocating for different views, and a person on one side of a conflict will frequently object to the characterizations made by the other side. In all but the most inherently imbalanced situations, however, each side can counter the other by offering their version to the public too. At least, they can publicly deny or disclaim the opposing picture of things.

In most criminal cases, as elsewhere in society, more speech, not forced silence, does the trick.

Let’s hope the Texas Court of Criminal Appeals agrees.

Earlier: The Reason You Haven’t Heard More About The 177 Bikers Arrested In Waco


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.