One of the bikers arrested as a result of the Twin Peaks restaurant shoot-out has filed an objection arguing that it would be a conflict of interest to allow a Waco Police Department detective to preside as grand jury foreman over his criminal case. The objection includes a copy of the Gary Larson cartoon shown above.
In urging his objection to the grand jury, the biker’s lawyer also invoked another comic.
The lawyer for biker Matthew Clendennen, Clint Broden from Dallas wrote, “The Detective Head grand jury is reminiscent of an old I Love Lucy episode in which the 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.”
Broden continues, “The reason, of course, that the I 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.”
As reported by Breitbart Texas, a twenty-four-year Waco PD police detective, James Head, has recently been named foreman over a newly-selected grand jury in McLennan County, Texas. This grand jury could end up determining the fate of some, or all, of the 177 bikers arrested at the Twin Peaks restaurant. The shoot-out killed nine bikers and wounded twenty others on May 17th.
The Waco Tribune-Herald reported that Detective James Head told the hometown paper his being selected as grand jury foreman, “is kind of unusual.”
“If something comes up that I have worked on or something like that that involved any type of apparent conflict, I am not going to vote on it,” the detective said. The detective arrived at the grand jury selection wearing his police badge and sidearm.
When asked by the Tribune-Herald whether he had any involvement in the massive Twin Peaks investigation, Head was reported to have said, “Not really.” The paper also reported that the detective “would not elaborate on that answer and deferred additional questions about the Twin Peaks incident to the Waco City Attorney’s Office.”
The objection filed on behalf of the Twin Peaks biker states that the detective was involved in executing search warrants, and may also have been present at the city’s convention center when people were being processed. He urges that “having his case considered by Detective Head’s grand jury [is] a violation of his right to due process and due course of law under the Texas Constitution.”
Christopher J. Downey is a former Harris County prosecutor who worked in the Civil Rights Division of the Harris County District Attorney’s Office. The now criminal defense lawyer has both presented numerous shooting cases to grand juries, and defended police officers on shooting investigations. As a prosecutor he investigated whether any laws were broken or civil rights violations occurred during a police shooting. He is of counsel to a police union, the Coalition of Police and Sheriffs (C.O.P.S.). His job now is to go out on calls when a member shoots someone.
Downey told Breitbart Texas, “The role of any grand jury is to review the assertion of law enforcement that there is probable cause to justify prosecuting an individual. Grand jurors enjoy the unique privilege of total secrecy in their deliberations but in that unique privilege is the assumption that the grand jurors are unbiased.”
“Selecting a grand juror in any case who has prior knowledge of the facts of the case, or allowing a police officer to serve as foreman in a matter that involves allegations of police misconduct, invites unnecessary allegations of bias. It undermines the integrity of the system. To do so in this case, in a case with national attention, is patently absurd,” said Downey.
On June 18th, Governor Greg Abbott signed House Bill 2150 into law. It amends the Code of Criminal Procedure to change how grand juries are selected in Texas. Grand juries have been selected under a system wherein criminal court judges appoint commissioners who nominate individuals to serve as grand jurors. The system, called the “key man” and “pick-a-pal” system, has received much media attention for the absence of racial diversity and the connection between the judges and the grand jurors.
A columnist with the Houston Chronicle, Lisa Falkenberg, received a Pulitzer Prize last year for her writings about the “corrupt and abusive” grand jury system in Texas.
One of Falkenberg’s columns reported that the grand jury that indicted Alfred Dewayne Brown intimidated a witness who could have exonerated him. The grand jury included a former Houston Police Department officer – Brown was indicted for the murder of a Houston police officer.
Brown was released from death row in June 2015.
Waco Judge Ralph Strother placed Detective Head on the grand jury, and named him as foreman. He told the Waco paper, “There was nothing to prevent the detective from being a qualified member of the grand jury, just like there is nothing to prevent him from being a qualified juror.” The judge reasoned, “If there is nothing that challenges his impartiality, he is qualified. We have lawmen who get on jury panels all the time. Who is better qualified in criminal law than somebody who practices it all the time?”
Grant M. Scheiner, a Houston-based Board Certified lawyer in criminal law told Breitbart Texas, “If the foreperson participated in any aspect of the investigation, he should recuse himself from participating in the grand jury investigation of the case.” He continued, “However, even if the detective didn’t participate in the investigation, there’s at least the appearance of impropriety. Judges and lawyers should strive to appear fair and honest in every aspect of the justice system. When we fail to do that, it erodes public confidence in the legal profession.”
Scheiner concluded, “If the foreperson won’t step aside, it is up to the judge to do something about it.”
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She is a former prosecutor and associate judge. Follow her on Twitter @LanaShadwick2