WRIT NO. ‘Cause No. 1473046 § ‘THE STATE OF TEXAS § INTHE District Court OF § § Harris County, Texas vs. g § 176 JUDICIAL DISTRICT ROBERT JOSEPH YETMAN § FINDINGS ‘On November 13, 2015, after a two week jury trial, the Court declared a mistrial in the above case ‘The Court Finos: (1) The jury in this ease heard 42 hours 15 minutes of evidence, (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. (5) The audience's audible reactions were the direct result of the Prosecutor’s provocative comments. (6) The jurors also appeared shocked or surprised by the Prosecutor's statements. (1) The audible reaction to the Prosecutor’s improper comments disrupted the orderly and expeditious conduct of the trial, (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. (11) Counsel for the Defendant, Stanley Schneider, moved for mistrial and the Court denied his motion. Page 1 of 7(12) The Prosecutor's next words tothe jury were, “You see what Matthew [the Complainant] is up against”. (13) The Prosecutor gestured broadly around the courtroom with her right an. (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. (13) 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 mistrial. (18) After deliberating briefly and believing that ajury instruction eould not cure the harm caused by the Prosecutor's argument and sidebar comment, the Court granted Defense counse!"s motion for mistrial (19) The Prosecution’s arguments, attitude, and sidebar comments before the jury impugned the dignity of the Court. (20)'The Prosecutor's attitude and provocative sidebar comments displayed open and obvious contempt for the Court’s rulings. (21) The Prosecutor's arguments and remarks clearly demonstrated that she was unwilling (0 limit the scope of her statements to permissible areas of jury argument. (22) The Prosecutor’s pattern of inappropriate conduct and improper argument shows her behavior was intentional and deliberate. (23) The Prosecutor intentionally engaged in conduct that forced Defense Counsel to move fora mistrial. (24) Ms, Johnson knew that when she told the jury “You see what Matthew's up against?” (RR.19-~ Excerpt from Guilt-Innocence Closing Arguments by State), the Defense would be forced to object, ask the Court to instruct the jury to disregard the Prosecutor's comments, and move for mistrial. (25) Both Ms. Johnson and Mr, Schneider are experienced criminal trial lawyers. (26) Both Ms. Johnson and Mr, Schneider know that to properly preserve error in this situation, Defense Counsel must object to the offending statement, ask the Court to instruct the jury to disregard the statement, and move for a mistrial Page 2 of 7(27)Ms. Johnson’s improper conduct occurted atthe very end of the case, after she had surpassed the allotted time for her jury argument. (28) In the face of an impending judgment of acquittal, the timing of Ms. Johnson's improper conduct demonstrates her intent to force the Court to order a mistrial in the above ease: (29) Despite the Court's admonitions and waming, Ms. Johnson continued to make statements that were increasingly improper and outrageous. (30) The Prosecutor failed to credibly explain her improper statements and behavior 1) The Prosecutor provided the Court with a factually plausible basis for her first improper argument; however, she failed to address her second improper statement and inappropriate conduct. (32) The conduct of the Prosecutor was clearly erroneous. (33) After reviewing the Prosecutor's actions throughout the tral and her behavior immediately before the Court ordered a mistrial, the Court does not believe Ms Johnson's statements to the jury were made in the heat of battle or were the result of Ms. Johnson having a momentary lapse in judgment. G4) 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 (35) In reviewing the record, the prosecutor attempted to “legitimize” her injection of race by quoting a comment made by the defendant during his testimony. (26) The record, however, reads: “But what you beard from the defendant was five hours of him telling you how important he is. He made every opportunity to try to trash and bash that famil make you think that they are less than him, That you can’t believe them because they're , and that child, blurting out things that weren’t even in evidence. To try to less than, because he’s not being taken care of correctly because African American, children shouldn't be on Albuterol”. (R.R. 18 Exeerpt from Guilt-Innocence Closing Arguments by State). (37) Ms. Johnson spoke the words “be on Albuterol” after she loudly emphasized the words “African American children shouldn't” G8) The tone and inflection of Ms, Johnson’s argument intimated that the Complainant was vietimized because he was African American or that the Defendant thought the Complainant was "less than” (sic) because the Complainant was African American. Page 3 of 7(9) In addition to including the record of the arguments, the Defense has requested that the our reporter's audio recording that was made simultaneously to the transcription be included for the Court's review. Though not an “official” part of the court's record, the recording does reflect how the parties’ arguments sounded at the time. (40) The Prosecution's inappropriate conduct and improper arguments were not isolated incidents during the trial. (41) Both sides zealously represented their respective positions, and the trial was heated (42) Defendant's case presented a two-prong defense: (a) the Defendant did not ‘commit the alleged offense and (6) the Complainants injuries tha the State claimed were evidence ofthe assault were, in fact, inflicted after the Defendant treated him and the complainant left the hospital. (43) The State called witnesses who had accompanied the Defendant on rounds on the day of the alleged incident and they clearly believed Defendant had not committed the offense. (44) Consequently, the State ended up presenting evidence in its ease-in-chief that was damaging to its theory of the case. (43) Throughout the tial, Ms. Johnson appeered to be angry or initated with every witness she presented or cross-examined that was employed by University of Texas Medical School or was with Memorial Hermann Hospital. (46) Several of the atomeys representing these witnesses repeatedly reported that Ms Johnson was mistreating their clients. (47) The attomey rmistreating their cients by forcing them to wait ouside the courtroom for days and not representing these witnesses advised the Court that Ms. Johnson was allowing the witnesses to be placed on call (48) During tril, Ms. Johnson repeatedly pointed out that the witnesses were represented by counsel and claimed that the witnesses and their counsel were uncooperative, (49) Despite detaining Dr. Joleen Kayanickupuram, one of the State's listed fact witnesses, in the courthouse hallway for four days, Ms. Johnson did not call her to testify. (50) Ms. Johnson’s frustration and iritation was obvious to the Court and those attending the trial proceedings. Page 4 of 7(51) Ms. Johnson seemed especially nonplussed and incensed by the Defendant's third witness, Dr. Becky Girardet, who is usually a testifying expert relied upon by the State of ‘Texas. (52) In front ofthe jury, Ms. Johnson attempted to hand Dr. Girardet an exhibit (Defense Exhibit 14), the complainant’s dirty underwear, for examination (53) This exhibit had been excluded from evidence the day before on the State's objection. (4) In ight of having caused the exclusion ofthe evidence the day before, Ms. Johnson's Whole line of questioning to Dr. Girardet regarding this exhibit was an illogical non sequitur, (55) Despite having possession of this exhibit, the complainant's dirty underwear, for eighteen months, the State did not send ito the lab for testing until two weeks before the trial began. (56) This exhibit did play a significant role in the trial. (57) The State's eighteen-month delay in sending the exhibit to the lab for testing appears 0 be a ploy to force the Defense to request a continuance until the lab results were received (68) The Defendant testified on his own behalf, denied commission of the offense, and provided a detailed account of his time and actions on the day in question. (59) During its cross-examination ofthe Defendant, the Prosecutor, Angela Weltin, directly violated the Court's Order granting a Motion in Limine, (60) Despite having agreed to abide by the Court's Order granting the Motion in Limine ata pretrial conference, Ms. Wellin violated the Court's Order granting a Motion in Liming during her cross-examination of the Defendant. (61) By asking the Defendant questions about whether he discussed with his eo-workers the type of pomography he preferred, Ms. Weltin violated the Court's Order granting the Motion in Limine. (62) Ms, Weltin’s questions to the Defendant were planned, calculated, and an intentional violation of the Court’s Order granting the Motion in Limine. (63) The Court granted Defendant's objection to Ms. Weltin’s question, and instructed the jury to disregard the question. (64) The Court admonished Ms, Weltin outside the presence of the jury, and after careful consideration, denied the Defense's request for a mistrial. Page 5 of 7(65) After the Defendant testified, the Defense called a number of character witnesses 10 testify on the Defendant's bebalf. (66) The Proseet character witnesses regarding the current allegations. ion conducted an unobjected-to cross-examination of the Defendant's (67) During these examinations, the Prosecution made fttle headway and did not ask @ single “have you heard” or “did you know” question, (68) Although the Defense had stated they had approximately thirty character witnesses standing by, only ten character witnesses testified before the Defendant rested his case. (69) In eebuttal, the State called Dr. McGinty, the Complainant's treating therapist. (70) Although the Defense had a video deposition of their own expert ready and avaiable to ‘counter Dr. McGinty’s testimony, they chose not to put on any additional evidence. (71) By omitting twenty character witnesses and declining to rebut Dr. MeGinty's testimony, Defense Counsel clearly demonstrated that he believed the jury was going to acquit the Defendant and wanted the jury to begin deliberation as quickly as possible (70) Spectator seating inthe courtroom was almost filled to capaeity for closing arguments commenced in this case (73) Many in the audience had testified on the defendant's behalf or had been prepared to do 30, (74) The est of the audience was primarily comprised of other lawyers, Assistant District Attomeys and witnesses for the State. (75) During the tral of this ease, approximately ten to twenty orderly and polite spestators were usually in attendance. (76) This audience only responded in an outburst when Ms. Johnson made inflammatory and prejudicial comments during jury argument, (77) The audience’s outburst was not 2 continuation of an unruly behavior by an “unsophisticated group of spectators, but an understandable response to Ms. Johnson's outrageous statements to the jury. (78) Ms. Johnson’ statements were inflammatory, and the audience reaction, though improper, was intentionally provoked. (79) The Court admonished the audience against outbursts and disruptions. The audience promptly complied with the Court’s order. Page 6 of 7December 4, 2015 (80) The Court also properly admonished Ms. Johnson: however, rather than complying with the Court's order she intentionally and inappropriately complained to the jury about the Court and the audience, (81) After a long and difficult two week jury trial, the Prosecutor, Tiffany Johnson, intentionally engaged in conduct designed to force the Court to grant a mistrial of this case. CONCLUSIONS OF LAW ‘The Court ConcLupes that (1) During the above trial, the State intentionally and deliberately engaged in an inappropriate pattem of conduct so as to force Defense Counsel to move for mistrial (2) During the above tial, the State intentionally and deliberately engaged in an inappropriate pattern of conduct so as to foree the Court o 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. Stacey W. Hond Judge, 176" District Court Harris County, Texas Page 7 of 7