Mimesis Law
16 August 2017

Sometimes Prosecutors Have To Say “Sorry”

January 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 brings hope for Harris County, as Robert Yetman will see no new trial. Texas’ Fourteenth Court of Appeals held the constitutional prohibition against double jeopardy applies to his case because prosecutor Tiffany Johnson’s inflammatory summation goaded defense counsel into requesting a mistrial.

Robert Yetman, a physician at Houston’s Memorial Hermann Hospital, was accused of fondling a seven-year-old boy. That’s a case that makes headlines, and one with high stakes for both prosecutors and defense counsel. The two-week case did not go well for Tiffany Johnson, or her co-counsel, Angela Weltin. Witness after witness shredded their theory of the case, supported by evidence Dr. Yetman provided, which made it nearly impossible for him to be in the room at the same time as the seven-year-old when the alleged touching occurred.

The case went so badly, Tiffany Johnson apparently tried to rig the outcome into a mistrial. During closing arguments, Johnson described the case as

like David and Goliath in here. Goliath being all this, all of the lawyers, the general counsel, the defendant and his friends with their accolades and their accomplishments and the positions of power that they hold.

That’s an odd characterization given Harris County had arguably more resources than Dr. Yetman to secure his conviction, but it wasn’t the remark causing Judge Stacey Bond to declare a mistrial.

Two incidents caused Judge Bond to grant defense counsel’s request for a mistrial. The first was when Johnson made a remark during her rebuttal that Dr. Yetman felt African-American children shouldn’t be on Albuterol.* The outburst from the gallery prompted Judge Bond to silence the courtroom. Defense counsel objected and moved for a mistrial. Judge Bond granted the objection, told the jury to disregard Johnson’s statement, and admonished Johnson for her remarks. She denied the mistrial.

Strike two and the mistrial came immediately after Johnson’s verbal bench slap. She waved her arms across the courtroom and asked the jury, “You see what [the complainant’s] up against?” Dr. Yetman’s counsel objected a second time and moved for a mistrial. Judge Bond had enough, and granted the mistrial. She also issued a seven-page Conclusion of Law with eighty-one findings of fact suggesting ADAs Johnson and Weltin intentionally goaded Dr. Yetman’s counsel into moving for a mistrial.

Findings of fact are damning in a case. They aren’t interpretations of law. When a judge issues a finding of fact, it’s a statement from a trier of fact something happened. Appeals courts take these as gospel truth unless there’s a damned good reason to do otherwise. Eighty-one was enough for Dr. Yetman’s lawyers to file for pretrial writ habeas corpus relief.** Their contention was a second trial would violate the Fifth Amendment’s double jeopardy clause. Judge Bond granted relief, and the State of Texas appealed.

That appeal, shockingly, did not go well for the State of Texas. The appellate court invoked the Supreme Court standard in Oregon v. Kennedy which barred a new trial if prosecutorial or judicial conduct provoked a defendant into moving for the mistrial. Applying the six factor test for assessing a prosecutor’s state of mind in Ex parte Wheeler, the Court of Appeals held DAs Johnson and Weltin intentionally botched the State’s case in hope of a new trial.

After finding the State’s comments merited objection and affirming the trial court’s findings of fact, the appellate judges examined Johnson’s state of mind under the Wheeler standard. They first held the trial was going badly for the State, with Johnson and Weltin calling witnesses during their case in chief that were “damaging to the State’s theory of the case.” Affidavits provided by the jurors supported the view that an acquittal was likely if the trial continued. One juror even called the trial “a farce.”

Johnson’s two remarks leading to the mistrial were repeated, despite the trial court’s admonitions. Furthermore, she could not provide a “reasonable, good faith explanation” for her actions. The State even admitted her “you see what he’s up against” remark was out of line. No legal or factual basis existed for her statements.

Finally the appellate court deferred to Judge Bond’s finding that Johnson’s conduct was intentional. Her experience suggested she knew her conduct was improper before she accused Dr. Yetman of being a racist, and Johnson knew defense counsel would have to request a mistrial to preserve error. There will be no new trial.

When Judge Bond declared the initial mistrial, Jeff McShan, Harris County District Attorney spokesman, announced the office’s intention to appeal. Murray Newman mused at the time the appeal was Harris County hoping the appellate court would remind Judge Bond that prosecutors never had to say sorry in Texas. Fortunately, this time, Harris County is reminded instead that judges have the final say if a prosecutor breaks the rules. Sometimes, prosecutors actually have to say “sorry.”

A source inside the Harris County District Attorney’s office confirmed that Johnson and Weltin were among the thirty-seven prosecutors fired by newly inaugurated Harris County DA, Kim Ogg.  When asked if Dr. Yetman’s case was the decision for their termination, the source simply responded, “unethical was not rewarded.” Good to know.

*Dr. Yetman’s statements were in regards to the child’s treatment, specifically prescribing Albuterol was a last resort treatment for African-American children.

**This is a separate action from the actual case, designed to protect a defendant’s substantive rights.

13 Comments on this post.

Leave a Reply

*

*

Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • Brad
    3 January 2017 at 8:00 am - Reply

    She voluntary gave up her arms? That is a sacrifice.

    • CLS
      3 January 2017 at 11:40 am - Reply

      I’ve read your comment three times and still have no idea what you’re talking about.

      • PSS
        3 January 2017 at 12:30 pm - Reply

        Ms. Johnson probably waved her appendages in the courtroom, rather than “waiving” them. (5th para, 2d sentence)

        • CLS
          3 January 2017 at 12:32 pm - Reply

          My people have no history of proofreading. That will be fixed. Thank you.

          • shg
            3 January 2017 at 1:11 pm -

            Fixed, with my apologies.

  • David Meyer-Lindenberg
    3 January 2017 at 11:25 am - Reply

    Great post, Chris, and it’s very good to know Johnson and Yetman aren’t drawing a taxpayer paycheck anymore.

    • CLS
      3 January 2017 at 12:24 pm - Reply

      Weltin. Weltin. Yetman’s the doctor.

    • CLS
      3 January 2017 at 12:31 pm - Reply

      And yes, it’s good to know both aren’t getting Harris County taxpayer money. If you’re going to try and game the system as a DA, especially when you know better, you should be out of a job.

  • Murray Newman
    3 January 2017 at 6:38 pm - Reply

    Having talked to several people in the Appellate World around Harris County, I’ve heard that some of the Judges on the Appellate Court felt that Judge Bond had “boxed them into a corner” with her findings. She made a courageous stand on a prosecutor who acted like she was the one running the Court, rather than the Judge.

    It is too bad that Judge Bond did not win re-election in November. She was a fantastic judge and her tenure was entirely too short.

    • CLS
      4 January 2017 at 10:35 am - Reply

      Judge Bond is the sort sorely needed on the bench. It sucks she’s gone.

  • Anonymous
    3 January 2017 at 9:12 pm - Reply

    The claim the prosecutor intentionally goaded the defense into moving for a mistrial is a stretch in my opinion. My best guess, under the available facts, is she strongly felt the defendant targeted the child based on race, and perhaps just couldn’t let it go. When you feel deep down race was a factor, then the judge rules you can’t mention race, it’s hard to turn that part of your brain off.

    The more interesting issue I think in this case is when do you have sufficient record evidence to argue an inference of race-based victim targeting in closing. Those who would target the poor or minorities don’t go around saying so, or putting it in their medical reports. What is enough?

    This article had a lot of aggressive wording suggesting this was an ass kicking by the defense, therefore that supports the idea the prosecutor would have an incentive to induce a mistrial and thus get a do-over. For example, the article says the prosecution theory was “shredded” and it was “nearly impossible” the defendant was even alone in the same room with the victim when the sexual touching allegedly occurred. But let’s add some perspective. Since this case made it to closing arguments, that would likely mean the judge already denied a motion for a directed verdict, which means there was sufficient evidence for a reasonable jury to find, beyond a reasonable doubt, that they were not only in the same room, but also that the defendant sexually abused the victim. Nothing in a jury trial is obvious.

    Query: have any of this blog’s commentators come across an article making an allegation of prosecutorial misconduct, yet felt the allegation was unfounded? It seems there is a recurring pattern here: article says prosecutor is bad, commentors all agree and call for prosecutor to be fired, etc. After a while doesn’t it get old? Is this just confirmatIon bias?

    • CLS
      4 January 2017 at 10:42 am - Reply

      First of all, the “claim” of which you speak isn’t mine. It’s an opinion handed down by an appeals court. There is a reason our mean-ass editor requires us to look through opinions and cite our work. Your feelings don’t count in this case, as much as you may think they do.

      Second, “aggressive wording?” The opinion makes it clear the State called witnesses unfavorable to their case time and time again. The evidence Dr. Yetman provided included time logs when he entered notes that made it next to impossible for any alleged assault to occur. Numerous juror affidavits after the mistrial produced all but one person who was ready to vote not guilty, and the one person who was unsure wanted to see one piece of evidence before voting not guilty to ease their conscience. We don’t Gertrude here, no matter how much you may want it done.

      Finally, we have numerous cases where we’ve run across prosecutors accused of misconduct and called it unfounded. We’ve got an ex cop who regularly analyzes shootings and rules them good, no matter how much we might want to disagree. Go look them up yourself. I’m done dealing with your stupid.

  • bacchys
    10 January 2017 at 10:15 pm - Reply

    So, can the defendant sue to recover his costs?