I wanted to write a short follow-up to my poorly written, typo-ridden, blog piece about the Tyler Harrell Trial, hastily posted before closing arguments on Thursday. Two items in particular need additional attention: 1) the press’s tendency to gratefully lap-up anything the DA’s office throws at them, and 2) how Judge Sage prevented the Defense Team from presenting essential, relevant, evidence in support of their self-defense, defense of another, and defense of property arguments.
First, about the press:
The Honorable Judge Karen Sage and Travis County Assistant District Attorneys Chari Kelly and Beth Payan held an impromptu press conference in the 299th courtroom on Friday, May 4th, in an attempt to make it appear as if there had been no racist statements made by Chari Kelly.
I say that it was an impromptu press conference because when the Defense Team arrived in the courtroom, they were dramatically provided a motion by the State to disclose the transcript of a discussion in chambers on allegedly racist statements that Judge Sage ordered not to be released. Judge Sage ruled (loudly enough for the press in the gallery to hear) that the transcript should be released after the trial is over, and that she had found no grounds to believe that racist comments had been made.
Mind you, the Defense Team still can’t talk to the press (or me) about those allegedly racist statements because Judge Sage’s gag order is still in effect.
Quite neatly, then, former assistant district attorney Judge Sage and her good friends Beth Payan and Chari Kelly set up a situation where the public is to believe that Judge Sage, in her infinite fairness, determined that her friends are not racists, while maintaining a strangle-hold on the underlying data until after the trial is over (and the media loses interest). Nothing to see here! Well done. Quite clever.
The Defense Team attempted to point out that Judge Sage refused to take evidence on the issue. How could she have ruled that her friends didn’t say anything racist, if no one ever took the witness stand? Pish Posh! “Testimony” – pish! “Evidence” – posh!
The Real Problem with the Tyler Harrell Case – Judge Sage Prevented them from Presenting a Complete Defense:
To some extent, the press stuff is a red herring. By that, I mean that the real harm that has been done to Tyler Harrell is not that Judge Sage prevented witnesses from disclosing allegedly racist statements to the media and bloggers. The real harm during the trial was her one-sided rulings. Though, one might argue that if racism stands at the core of the criminal justice system, these issues cannot be disentangled.
When the State tries to criminalize us, we have a right to cross examine their witnesses, and we have a fundamental right to present our own defense.*
The Defense Team tried to present evidence during their case that the Austin Police Department botched the investigation of the shooting at the Harrell house because they failed to account for the misplaced LRAD device when reconstructing the police announcements, and how those announcements would have been heard in Tyler’s bedroom upstairs (they also did not incorporate the flash-bangs exploding outside his open bedroom window).
When the Defense tried to go into this problem of reconstruction, Judge Sage repeatedly sustained the State’s objections. At one point, Judge Sage got up from her bench during a break in this attempt to put on a defense. Judge Sage said that misplacing the LRAD in the reconstructions did not make this a bad investigation. Judge Sage said that the there was only one issue in the case – whether Tyler Harrell knew it was the cops. She frustratedly half-yelled that she had heard no relevant questions, and when they returned from the break, there better be relevant questions, and stormed back into her chambers.
[It is being reported by “journalists” with no understanding of the criminal justice system, rules of evidence, or the Constitution, that the Defense was the source of delay in this trial. If that means that the Defense was trying to put on evidence that the four prosecutors didn’t like and it delayed their ability to get a conviction, then – yes, sure – the Defense delayed the resolution of the trial. Mind you, this was an ATTEMPTED CAPITAL MURDER trial. Three weeks for an attempted capital murder trial is nothing. Further, I don’t see the words “fast” or “efficient” in the Due Process Clause. By the way, the DA’s office obstructs the defense’s urging of the right to Speedy Trial all the time.]
Mind you, Judge Sage allowed the State to introduce the recording of the LRAD reconstruction. That recording involved opening and closing doors and windows in the Harrell house, with the LRAD device pointed at Tyler’s bedroom in its cone of sound, without the use of flash-bangs - unlike how it was actually used on the night of their invasion into the Harrell home.
Think of it this way: The LRAD shoots sound. If you point it at the target of the sound, the intended target will hear it through walls so long as it is on the right settings and the recording is intelligible. If you point it in the wrong direction, the target of the sound will either hear something that is too faint to understand, unintelligible, or they may not hear it all, depending on a variety of factors. If you also explode things in the person's ear, the explosions will cause some degree of hearing loss, making the LRAD sound less intelligible.
Relevant evidence is evidence that tends to make a fact in the case more or less true.** The State relied heavily on the LRAD evidence in their attempt to prove that Tyler knew he was firing upon police. They opened the door to any problems with the reconstruction of that sound evidence by introducing it. By making it seem like the Defense was wasting the jury’s time by trying to attack that evidence, Judge Sage abandoned her role as neutral arbiter and embraced her role as the fourth prosecutor on the case.***
Judge Sage also excluded evidence relevant to the self-defense instructions. The jury was charged with the law on self-defense, defense of a third person, and defense of property. Part of the law on self-defense is that a person being arrested cannot use force to resist unless the officer uses excessive force to start off – before the arrestee resists the officer. Excessive force is a fact intensive inquiry, meaning, all the surrounding facts must be considered when deciding if a police officer used more force than was necessary.****
Judge Sage prevented the Defense from introducing evidence of Tyler’s peaceful nature, with no history of violent misconduct. Judge Sage prevented the Defense from introducing Tyler’s lack of criminal history (which the police would have known at the time of the home invasion). Judge Sage prevented the Defense from introducing evidence that the police only found a misdemeanor amount of marijuana in the home after the raid. [Correction: more was found than marijuana]
20 (twenty) Austin Police Department SWAT officers, with 2 (two) tanks, armed with rifles and explosives hit the Harrell house in April of 2016 . Do you think that this is excessive? Chari Kelly and Beth Payan repeatedly argued in closing that this was a dangerous narcotics warrant with someone they knew had a rifle in the home.
THIS IS TEXAS. Can the police dust off their tanks and put on their military gear every time they suspect a Texan of having marijuana in their house? The State’s answer: Yes! Yes, of course, and you better not shoot at them when they bust through your door.
How was the Defense supposed to show that the SWAT raid was excessive if they could not get into the fact that Tyler had no criminal history or history of violent behavior?
By allowing the State to call it a “dangerous narcotics warrant,” Judge Sage allowed Chari to leave an impression with the jury that Tyler Harrell had kilos of cartel heroine in his bedroom closet. By preventing the Defense to rebut that, Judge Sage violated Tyler’s right to present a complete defense under the Sixth Amendment to the United States Constitution.
Funny aside: The first time I encountered Judge Sage was at an Austin chapter meeting of the American Constitution Society. I was speaking on Antonio Buehler’s case during their lunch CLE. I did not know she was a judge. I find it darkly poetic that she attends American Constitution Society meetings when she treats Constitutional rights in this manner.
Judge Sage’s rulings against the Defense’s case stand in stark contrast to what she let Chari Kelly get away with. At one point last week, Chari Kelly was cross-examining the Defense’s expert witness on sound. Chari started reading from an advertisement for the LRAD device in front of the jury. Skip objected. Chari argued that it was already in evidence --- when it was not actually in evidence. Skip objected.
Chari then moved to admit the advertisement into evidence (having already misstated to the court that it was in evidence). Skip objected to hearsay. Chari argued that the statements in the advertisement for the device that the device can be heard clearly through walls was not offered for the truth of the matter asserted. Meaning, Chari claimed that she was not trying to introduce the statement that the LRAD can be heard clearly through walls to prove that the LRAD can be heard clearly through walls. Skip argued that if it wasn’t offered for that truth – that you could heard the device clearly through walls – then it was irrelevant to the case. OVERRULED. “I’ll allow it,” Judge Sage said, just as she had also said when Chari introduced a report that said on its face it was not admissible in court.
It is frustrating to read “journalists” accounts of this trial, claiming that Judge Sage “scolded both sides,” or that there were no racist statements, written by people more suited to report on golf tournaments than court proceedings. I miss Jasmine Ulloa. https://www.latimes.com/la-bio-jazmine-ulloa-staff.html
I digress. At the end of business on Friday, the jury informed Judge Sage that it was hung, meaning that not all 12 of them could reach a unanimous verdict on the case. Judge Sage did not yet release them. They are to continue their deliberations on Monday.
And, so, I’m still praying for Tyler and his family, in my own way.
*The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Six Amendment protects an accused person’s right to cross-examine the witnesses against him. Davis v. Alaska, 415 U.S. 308, 316 (1974). An accused person on trial is entitled to great latitude to show that a witness is biased or has a motive to falsify his testimony. Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982). Evidence is relevant if it has any tendency to make a fact at issue in the case more or less probable. Tex. R. Evid. 402.
“A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense – a right to his day in court – are basic in our system of jurisprudence, and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” In re Oliver, 333 U.S. 257, 273 (1948).
The right to call witnesses and present a defense are fundamental to our Constitutional Republic. Washington v. Texas, 388 U.S. 14, 20 (1967). https://scholar.google.com/scholar_case?case=5676629902054312770&q=%22right+to+present+a+complete+defense%22+%22we+reverse%22&hl=en&as_sdt=6,44
**Trial courts cannot Constitutionally intimidate defense witnesses into silence. Webb v. Texas, 409 U.S. 95, 93 (1972). “A defendant has a fundamental right to present evidence of a defense as long as the evidence is relevant and is not excluded by an established evidentiary rule.” Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (citations omitted). Relevant evidence addresses a material issue in the case and tends to make it more or less likely to be true. Id.
A botched police investigation is fair game for defense attorneys on cross-examination in every criminal case. See e.g. Cueva v. State, 339 S.W.3d 839, 861-862 (Tex. App.—Corpus Christi 2011).
*** A judge that aids the State is not neutral or detached. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 (1979). “Whatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement.” Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972).
Further, a judge improperly gains personal knowledge of facts when she engages in ex parte communications with one party to a contested case. See Abdygapparova v. State, 243 S.W.3d 191, 208-10 (Tex. App.—San Antonio 2007, pet ref’d). It seems that Judge Sage, Chari, and Beth planned that the State would present their motion to disclose the transcript and the judge would rule in front of the press. The Defense was not privy to that plan. Note, also, that at the end of Wednesday, Judge Sage made it seem like the parties would have closing arguments Friday morning, taking Thursday to do offers of proof and the jury charge. Then, Judge Sage pushed to having closing arguments Thursday afternoon, rushing through the jury charge. SWAT knew that arguments would be Thursday – they were there early to take their seats close to the jury box.
****Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008).