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.”
*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.