Mimesis Law
22 January 2017

Being a Prosecutor Means Never Having to Say You’re Sorry

Dec. 8, 2015 (Mimesis Law) — On Friday, Judge Stacey Bond of the 176th District Court of Harris County, Texas did something unusual.  She issued findings of fact on a sexual assault case which found that a mistrial had been caused by prosecutorial misconduct.  Her Conclusion of Law read:

The Court CONCLUDES that

(1) During the above trial, the State intentionally and deliberately engaged in an inappropriate pattern of conduct so as to force Defense Counsel to move for mistrial.
(2) During the above trial, the State intentionally and deliberately engaged in an inappropriate pattern of conduct so as to force the Court to grant Defense Counsel’s motion for mistrial.
(3) Jeopardy should attach to the Defendant’s current trial.
(4) The State should not be permitted to retry the Defendant for the charged offense on the same set of facts.

The case against Robert Yetman was understandably a high profile case.  Yetman was a doctor at Memorial Hermann Hospital in Houston, who was accused of fondling a 7-year-old patient.  Two senior chief prosecutors, Tiffany Johnson and Angela Weltin, were representing the State against two very skilled defense attorneys, Stanley Schneider and Casie Gotro.  Judge Stacey Bond is a former prosecutor and a former defense attorney who has been on the bench since 2013.  Nobody involved in the case was new to trial lawyering.

The trial had been going on for two weeks before Judge Bond declared a mistrial and there had been tension rising between the judge and the two prosecutors.  Judge Bond had already admonished Weltin for violating a Motion in Limine regarding pornography found on Yetman’s computer. In Judge Bond’s findings, she stated:

(61) By asking the Defendant questions about whether he discussed with his co-workers the type of pornography he preferred, Ms. Weltin violated the Court’s Order granting the Motion in Limine.

At the close of evidence, most lawyers who had been watching the trial seemed to think that the State had failed to prove their case beyond a reasonable doubt and that the jury was most likely to return a verdict of acquittal.  Whether or not this was true must be left for debate, because the trial came to an abrupt halt during the State’s closing argument.

(2) During its closing argument, the State’s Prosecutor, Tiffany Johnson, argued by inference that the Complainant’s race was a factor in his victimization.

(3) This statement was not supported by the evidence.
(4)  The Prosecutor’s argument provoked gasps of shock and audible comments of disapproval from some members of the audience.

 

(8) To restore appropriate decorum in the courtroom, the Court found it necessary to admonish the audience regarding outbursts.
(9) The Court then sustained the Defense’s objection to the Prosecution’s argument.
(10) On Defendant’s request, the Court gave the jury an instruction to disregard Prosecution’s argument.

 

(12)  The Prosecutor’s next words to the jury were, “You see what Matthew [the Complainant] is up against.”
(13)  The Prosecutor gestured broadly around the courtroom with her right arm.
(14)  The Prosecutor’s tone of voice and statement to the jury inferred that the Court and the courtroom audience were biased against the Complainant.
(15) The Defense objected to the Prosecutor’s statement and the Court sustained his objection.
(16)  The Court granted the Defense’s request for a jury instruction to disregard the Prosecutor’s statement and gave such an instruction.
(17) The Defense moved for a mistrial.
(18)  After deliberating briefly and believing that a jury instruction could not cure the harm caused by the Prosecutor’s argument and sidebar comment, the Court granted Defense counsel’s motion for mistrial.

The granting of the mistrial was surprising for several reasons.  Granting mistrials on defense motion are not particularly common in the first place.  When they do occur, they are normally based on reasons that are so blatantly egregious that not even the most State-oriented judge could deny a request for one. An inadmissible confession gets brought into evidence or a juror contacts the prosecution, for example.  Judges are generally reluctant to grant mistrials, and even more so if the fault for the mistrial lies at the feet of the prosecution.

Judge Bond declared a mistrial based on an improper argument by the prosecution at the close of evidence.  The fact that the two-week trial was at the finish line could not have made her decision any easier.  In a county and state that pride themselves on law and order, such a ruling against representatives of the Great State of Texas was a gutsy one.

It was also one that was long overdue.

Prosecutors are trained to be dynamic and aggressive litigators.  CLEs and trial advocacy classes are given to teach them to treat the courtroom as if they own it.  Don’t ask the Court for permission to approach a witness; just approach.  Don’t apologize if the Court admonishes you.  Don’t violate the Rules of Evidence, but don’t be afraid to get yelled at if you get really close to crossing that line.

Prosecutors do that routinely, but they usually have the comfortable safety net of knowing the judge isn’t going to do anything too harsh in response.  A judge may admonish a prosecutor in front of the jury, but he or she probably won’t grant a mistrial, right?  Sure, it may become grounds for an appeal, but when was the last time a case got reversed just because of a prosecutor being too aggressive?

Judge Bond’s ruling on Friday was a bold one because it finally stopped that pattern of condoning this type of behavior and letting the prosecutors know that the courtroom did not, in fact, belong to them.  To her credit, she didn’t do it half-assed, either.  She could have easily granted a mistrial but refrained from making a finding that it was based on prosecutorial misconduct.  She could have granted the mistrial based on prosecutorial misconduct but refrained from finding that it was done deliberately to goad the defense into moving for a mistrial.

But she didn’t.

(13) Ms. Johnson’s behavior was designed to force the Defense to ask the Court to order a mistrial rather than to allow the case to go to the jury and risk a judgment of acquittal.

Judge Bond’s ruling was a much-needed reminder that the Court retains the power to make a prosecutor sorry if he or she doesn’t follow the rules.  She made the right call and should be commended for it.  The question is whether or not the lesson will resonate beyond this specific case.  Unfortunately, that’s doubtful.

On Friday, the Harris County District Attorney’s Office issued a statement regarding Judge Bond’s ruling:

“We respectfully disagree with the judge’s findings,” said [Harris County District Attorney’s Office spokesperson] Jeff McShan.  “We believe our prosecutors acted ethically and argued within the four corners of the record and we intend to appeal.”

The Office’s hope is that the Court of Appeals will remind Judge Bond that prosecutors don’t have to follow her rules.  After all, being a prosecutor means never having to say you’re sorry.

5 Comments on this post.

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  • Scott Jacobs
    8 December 2015 at 3:02 pm - Reply

    “We believe our prosecutors acted ethically”

    Well, ethically for Harris County prosecutors, at any rate…

  • Will the Harris County District Attorney Ever Accept Responsibility?
    8 December 2015 at 6:09 pm - Reply

    […] Being a Prosecutor Means Never Having to Say You’re Sorry – on the Minesislaw Blog by Murray Newman explains the ruling in more […]

  • NortonSmitty
    9 December 2015 at 3:02 pm - Reply

    This is a good start. The Doctor and his high profile legal team deserve no less. Now, when the same happens to a poor person with a Public Defender, I’ll be really impressed, but I’m not holding my breath.

  • Marilyn MacDonald
    9 December 2015 at 11:30 pm - Reply

    Judge Bond has been both a prosecuting attorney and a defense attorney. She has years of experience. Kudos to her for standing her ground when it comes to injustice.

  • Sometimes Prosecutors Have To Say “Sorry”
    3 January 2017 at 6:24 am - Reply

    […] 3, 2017 (Fault Lines) — Fault Lines alumnus, Murray Newman, covered the story of Robert Yetman’s mistrial in December of 2015. At the time, Murray was pessimistic regarding any sort of appeal. The new year […]

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