Texas v. Tyler Harrell - Prosecutorial Misconduct & a Judge's Power to Help Prosecutors

I started paying attention to the State of Texas v. Tyler Harrell case after hearing rumors of prosecutorial misconduct in the form of racial slurs that Judge Karen Sage of the 299th District Court of Travis County ordered not be repeated by the witnesses to the slurs.

[Correction: now that the gag order has been lifted, I’ve learned it was more in the nature of dog-whistle racism]


My colleague and I filed a Petition for Writ of Mandamus on the gag order Judge Sage entered related to these alleged racial comments made by someone on the prosecutorial team; we filed it on May 1, 2018.  The Court of Appeals won’t have ruled on that Mandamus before this trial is over.


Essentially, we are asking that the Court of Appeals order that Judge Sage lift the gag order so that the defense attorneys can tell us what prosecutor Chari Kelly said about Skip Davis that was racist.  Chari Kelly is running for appellate court judge.




The person charged in the case – Tyler Harrell - appears to have an African American father and white mother.  Mr. Harrell’s attorney Skip Davis is African American.  Mr. Harrell’s other attorney Deniz Kadhiran has a mixed ethnic background. 


The two prosecutors actually taking witnesses have been Chari Kelly, who is blonde white woman with blue eyes, Beth Payan, who appears to be white.  And, there is an African American male prosecutor sitting at counsel table.  Judge Sage is white. [They let their third chair take witnesses later in the trial]


“Prosecutorial misconduct” has the same effect on me that seeing a squirrel has on a dog – I get real interested real fast.


And, so, this week, I’ve spent time watching the tale-end of the trial in the 299th, doing my own work on my laptop as I watch the proceedings.  Within the first ten minutes of watching the proceedings, my blood pressure sky-rocketed. The animosity directed at the defense from the judge and prosecutors has been viscous and stifling.  More on the treatment of the defense like redheaded step-children in a moment.


Tyler Harrell is charged with attempted capital murder, meaning that the State must prove beyond a reasonable doubt that he intended to murder a police officer but failed to actually kill one.  The State must also prove beyond a reasonable doubt that he was not acting in self-defense, defense of his mother, or to protect his property.


Essentially, the Austin Police Department got a No-Knock Warrant to search Tyler Harrell’s home.  Seventeen-year-old Tyler and his mother were at home in the wee hours of the morning.  Tyler was asleep in bed, and his mother had just gotten up to go to the bathroom when they heard loud explosions and the door downstairs being busted in.  Tyler’s mother laid flat on the floor upstairs where their bedrooms were and watched her son, face terrified, shoot down the stairwell of their home.  Tyler stopped shooting and asked who was there.  They learned it was the police.  Tyler immediately put down his rifle.  Tyler was arrested in his boxer shorts. 


The police found misdemeanor amount of marijuana in the house after his arrest and Xanax.


The State seems to be contending that the LRAD device they used to shoot loud messages at the house was of good quality and loud enough for the people inside to hear that the police were announcing themselves before Tyler Harrell fired his rifle.  He knew they were police, therefore, he attempted to murder a police officer, says the State’s prosecutors.


This week, the Defense Team has presented evidence in the form of expert witness testimony that the line of sight down the stairwell was such that they would not have been able to see that it was police busting into their home. Expert Andre Stuart developed exhibits that show the house lay-out and the lines of sight from Tyler’s position outside his bedroom upstairs, down the stairwell to the first floor where the police burst into the house and started exploding incendiary devices.


The Defense team’s expert on sound explained to the jury that the LRAD is supposed to be used by playing a carefully pre-recorded message at a decibel level that can be heard through a barrier (like walls).  In this case, flash-bang devices were also being used during the use of the LRAD, meaning, Tyler Harrell would have heard explosives going off at a decibel level that would create some level of ringing in the ears.  The flash-bangs were going off at the same time the police were announcing themselves outside the house.  Further, Tyler and his mother’s home had a unique foyer shaped like a cylinder, which would have distorted the LRAD noise being beamed at the house.  Some neighbors testified that they did not hear the LRAD.  Because of their location, it is likely that the LRAD was aimed in a direction that would not have had Tyler Harrell’s bedroom in the beam of sound.  The combination of loud flash-bang incendiary devices, with an improperly used LRAD, beamed in the wrong direction, make what Tyler Harrell said plausible:


He did not know they were police until after he fired his rifle. 


Tyler Harrell’s mother testified on Wednesday, May 2nd.  She testified about the home invasion, explosions, fear, and how Tyler Harrell put his rifle away when he learned that there were police in his house.


Tyler Harrell was in high school at the time they raided his home in SWAT gear, rifles, and flash-bangs.


The Defense Team made up of Skip Davis, Michael Chandler, and Deniz Kadirhan has been fighting against four prosecutors, three at the prosecutor’s table and one on the bench.  Judge Sage has been visibly and almost continually angry, dismissive, outraged, and disbelieving of the defense during the trial this week.  Her demeanor at bench conferences clearly expresses to all watching (including the jury) that she at least annoyed, but sometimes furious, with Skip Davis and Michael Chandler.  Here are some examples:


The first significant outburst that I witnessed from Judge Sage happened on Tuesday, May 1st, during prosecutor Chari Kelly’s cross examination of defense expert witness Andre Stuart.  Chari Kelly repeatedly read from this report during her cross of the expert: http://www.txcourts.gov/media/1440850/14-01-final-report-forensic-video-analysis-height-determination-complaint-for-george-r-powell-iii-analyst-self-disclosure-20160412.pdf

The problem with Chari reading this report into the record is three-fold:

A.      The report itself states that it is not admissible in court,

B.       Texas Code of Criminal Procedure in article 38.01 specifically states that this report is not admissible, and

C.       Chari failed to lay the proper foundation to establish the report as a learned treatise under Texas Rule of Evidence 803(18). No one had testified that the document was a learned treatise.

Skip Davis objected to Chari reading from the report.  Judge Sage overruled him.  Chari continued reading.  Skip objected again. 


Chari demanded that the expert admit that the report said exactly what she was reading, and the expert tried to explain that he substantively disagreed with the report.  Judge Sage became annoyed with Skip and annoyed with the expert shrilly admonishing: “Mr. Davis – can we just let her; can you just let her; [turning to the expert] can you just listen to the questions and answer them!” 


Chari continued to try to force the expert to admit that she was correctly reading from the report that is not admissible in court.  Skip again objected, and the lawyers went into a bench conference in front of the jury.  Judge Sage was visibly angry at Skip Davis’s continued objections.  By visibly angry, I mean that I could tell that her face was contorted, with her eyebrows pulled down and together, she bounced up and down in her chair as she punctuated her words, and she lunged toward him when she talked to him.  In contrast, she would soften her eyebrows and smile and nod as Chari Kelly spoke. 


At this bench conference, about a document that said on its face that it was not admissible in court, Judge Sage threatened Skip with contempt of court if he continued to object.  Everyone watching could read her lips and hear the hiss of her whispering.


The problem with Judge Sage being angry about objections is this: Tyler Harrell is facing penitentiary time for the offense of attempted CAPITAL MURDER.  His lawyer MUST preserve the record for appeal.  Any failure to object to improper questions would waive that error on appeal.  Every single time the prosecutor says something improper, the defense must make a timely and specific objection to the impropriety.


If Skip didn’t preserve the record, he could be found to have provided his client with ineffective assistance of counsel, meaning that his failures to object would amount to a violation of Tyler Harrell’s 6th Amendment right to an attorney.  By threatening Skip with contempt for objecting each time that Chari improperly read a report that on its face said it was not admissible in court, Judge Sage put Skip between a rock and a hard place.  On one side, if he advocates for his client and preserves the record, Skip may go to jail.  On the other side, if he saves himself, he would be sacrificing his client’s chances on appeal.  Skip chose to fight for his client, and he kept objecting.


Skip then got the expert witness back on re-direct and he attempted to go into the fact that the report says on its face that it is not admissible in court.  Judge Sage looked furious.  She had threatened Skip with contempt if he “undermined her rulings.”


Judge Sage finally actually read the part of the report that says it is not admissible in court.  She angrily got up from the bench and took a ten-minute recess.  When she came back, she stated that she would be instructing the jury to disregard what Chari Kelly had just done with that report.  She did not express any annoyance with Chari about what she had repeatedly done.  Judge Sage did not threaten the prosecutor with contempt if she did it again.


Michael Chandler attempted to put on the record that Chari had flaunted the court and the rules of evidence.  Judge Sage admonished him not to personally attack Chari.


And, so it has gone.  Judge Sage smiled and nodded at everything the prosecutors said and argued.  And, she lunged, bounced in her chair, frowned, grimaced, and pounded her hand on the bench in front of her when anyone from the Defense talked.  At the end of the Defense’s case-in-chief, they were discussing scheduling at the bench with the jury in the room.  Judge Sage’s hissing whispers could be heard in the back row of the courtroom.  At one point, I heard her tell Skip that he was “yanking her chain” and she didn’t “buy any of that.”  This moment was typical of Judge Sage’s attitude to the Defense and how she was not afraid to let the jury see how illegitimate the Defense was.


Worse still, Judge Sage would look over and nod at the prosecutors when she was expecting an objection, and then the prosecutor would object after being signaled. 


Even worse, Judge Sage ruled on Skip’s objections before he finished his objections.  Skip would stand and say “objection,” and Judge Sage would immediately say “overruled,” before he explained what his objection was.  Again, he has a duty to his client to make a record of his objections.


At the end of their long day on Wednesday, May 2nd, Judge Sage stormed back into the courtroom from her chambers and yelled at Skip that she saw on security video that he had waived a disc in the air during testimony about Tyler’s statement to police and that she would grant a mistrial if that happened again.  She yelled that she was tired of being told how unfair she was being.  She yelled that only the court of appeals would judge her.  She doth protested a bit too much.


Today the defense made an offer of proof of the various pieces of evidence that they sought to introduce in the trial but were obstructed by the prosecution.  Judge Sage’s body language was as it had been during the Defense’s case-in-chief (except when she took time to yell at the defense): She kept her back turned to the defense table and played with her computer or texted on her phone as the Defense made their record.


I am waiting now to listen to closing argument.  And, I’m praying for Tyler Harrell and his family in my own way.