Wayward Youths

armen and mark in trial

Last Monday my protégé and friend Armen Merjanian invited me to try a case with him the following day, so of course I said “Hell yes!”

I hadn’t tried anything in over a year, when Citizen Lane and I tried a federal obscenity case in Pecos, Texas. (That one is on appeal.) I crave trial action. And Harris County has finally eliminated its misbegotten scheme of picking juries in NRG Center (though it still requires jurors to wear masks, which rule we have to do away with if our clients are to have fair trials).

The trial was in County Criminal Court Number 16, before Judge Darrell Jordan. The prosecutors were, by their initials,¹ EE, the child of a longtime elected District Attorney from a border county, who has been licensed since late 2019; and MS, who has been licensed since late 2021. Since the bulk of EE’s time at the Harris County DA’s Office, and all of MS’s time, has been during the Plague Days, neither has tried many cases.

The trial was all the action I hoped for and more.

A grown man (David) was accused of assaulting a grown man (Camilio) in a scrap-metal yard. It was a freebie for the client, because the maximum punishment was a year (which means six months at most, with standard good-behavior time) in county jail, and he was already serving a longer sentence on another case. He already had more significant criminal history than a misdemeanor assault, so there was very little bad that could happen to him in this case.

Everyone was treating it as a self-defense case, but what I saw was a mutual combat case—Camilio consented to David’s use of force against him, or at least the State could not prove beyond a reasonable doubt that David did not reasonably believe that Camilio had consented to David’s punching him in the face. David2 had seen a shoving match between Camilio and David, which Camilio had started; David2 had gone inside for a beer, and Camilio was spitting blood when he came back out.

The arresting officer had talked with David2 and had heard about the shoving match, but hadn’t asked the key question: who started it? The DA’s Office had never bothered to interview David2.

It’s not unreasonable to say, “if you participate in a shoving match with another man in a scrap-metal yard on Lockwood, you are consenting to being punched in the nose.” If you start a shoving match with another man in that yard, though, you are absolutely consenting to being punched in the nose.

This was a monkey dance that ended the way monkey dances often end, except that the guy who lost didn’t take his loss gracefully, and called the police; and the police officer, a woman, didn’t recognize it for what it was.

Would a male police officer have recognized a monkey dance where the woman didn’t? Who knows. I recognized it because I’ve studied violence, and the monkey dance is foundational knowledge—every cop should know about this.

Whenever we have a case involving minor violence between two grown men, we have to look at the possibility of consent. EE didn’t have that knowledge, and didn’t look at that possibility, and tried a guy for something that, while outside EE’s experience, is a common part of regular life in less privileged classes.

This was, in short, a stupid case for the State to prosecute: a waste of the jury’s time as well as the court’s. They might have blundered into a conviction, but instead they stumbled into having to dismiss the case with indignity.

I’ll let Armen tell that part of the story. He wrote, on Facebook (Facebook link if you’re into that sort of thing):

I asked the prosecutors nicely to dismiss this case back in November - they didn't. I sent more emails on Monday asking the prosecutors to dismiss this case - they didn't.

We started trial yesterday (Tuesday): picked a jury, made opening arguments, and I cross examined their first witness - the untruthful cop.

This morning, I was conveniently given Brady evidence on the untruthful cop who had already finished testifying. What evidence? The exact evidence I had asked for in trial ON THE RECORD. The prosecutors LIED to the judge and said it wasn't in their possession. Turns out, it had been in their possession since before we started trial (gotta hate those pesky little time stamps that show when they printed the reports).

After uncovering this, along with OTHER Brady evidence that wasn't turned over, I made an oral motion to dismiss for PROSECUTORIAL MISCONDUCT. I showed the judge that the prosecutors conduct wasn't an honest mistake, but a pattern of willful misconduct. Before the very fair judge had an opportunity to rule on my motion, the prosecutors - wait for it - filed a motion to dismiss. This case was headed towards a two word verdict anyway.

The dismissal allowed me to enjoy lunch with my brilliant co-counsel and mentor, Mark Bennett, a little earlier than anticipated. It also allows me to show the whole world who this cheating prosecutor is 😀

Armen and I don’t see things exactly the same. I’m more charitably inclined toward EE and MS. I attribute their errors more to inexperience, poor training, and confusion in the fog of war than to fundamental dishonesty. I would describe them not as “cheating prosecutors” but as prosecutors who badly screwed up a case that they never should have chosen to try in the first place.

The fact, though, is that on Tuesday when we were talking about the police officer’s disciplinary history, Armen showed the judge the one sparse page we had received, and the Judge showed it to the State, and the State told the judge, “That’s all we have.” But they had other documents, which they had uploaded to the online discovery portal; we were not notified of those until Wednesday morning, when the police officer was already off the stand. The State did not know whether we knew about those documents when it said “That’s all we have.”

Wednesday morning before Camilio was to testify the State also produced a scant summary of his criminal history, with nothing that would allow us to figure out whether there was anything that could be used to impeach him, much less time for us to get the documents that we would require to impeach him.

EE opined that there was nothing impeachable in the criminal history because of the dates of the arrests (outside of the last ten years). But that’s not a decision for the State to make, for two reasons. First, the ten years runs from the release from confinement, and you can’t tell that from the date of the arrest. Second a court can admit an impeachable offense outside the ten-year period.

But the larger problem with the State’s disclosure of this criminal history is that, when Armen had asked months before for all witnesses’ criminal history, the State hadn’t bothered producing this information (and I suspect hadn’t bothered looking for it) until halfway through trial.

Armen, warrior that he is, went on the attack, moving orally to dismiss the prosecution for prosecutorial misconduct. Judge Jordan heard from both sides, and seemed very interested in the fact that the State had had more documentation on the police officer’s discipline when it told him, on the record, that the single-page summary was all that it had. He asked both sides to do some legal research and tell him what the law is on dismissing for prosecutorial misconduct.

What I found in a quick search was that the lesser sanction of excluding the witness, rather than dismissing, was probably appropriate for the State’s failure timely to provide impeachment evidence. This seemed like a good solution to me because a) the judge would not have to find prosecutorial misconduct; b) it would have made it impossible for the State to prove its case.

But when we reconvened, the State had already decided to dismiss, rather than face the possibility of a misconduct finding. (There may have been an expunction advantage to David in opposing the motion to dismiss, and asking instead that the witness be excluded and the case be sent to the jury for a directed verdict, but neither Armen nor I thought to chance it.)

In the comments to Armen’s Facebook thread, criminal-defense lawyers call for EE’s firing. I think this is the wrong approach, for a couple of reasons.

The best argument I’ve heard for the defense bar to call for EE’s firing by the DA’s Office is: We know the office isn’t going to do it, and they look bad when they fail to take corrective action. Do we really know that? Kim Ogg’s mismanagement of the Harris County District Attorney’s Office is a running joke. There is no leadership. If the public cared about a baby prosecutor maybe cheating in trial, Ogg would drop EE in the grease in a heartbeat. Because that’s exactly the wrong solution.

Whether malevolent or incompetent, EE’s and MS’s abject failure in trial can and should be laid directly at Kim Ogg’s feet, and at the feet of everyone in the chain of command between EE and Ogg.

More below the payline.