Do Big Cases Make Bad Decisions? (Or, a Sentinel Event for the HCDA)

It's an old saw in the legal profession that "bad facts make bad law."  It might also be true that "big cases make bad decisions."  Criminal trials are always high-stakes endeavors for the concerned parties, but where the charges are politically sensitive, or the defendant unusually powerful or well-connected (i.e., the antithesis of the ordinary criminal defendant), the imperative of prosecutorial victory is heightened, the sense of prosecutorial isolation and embattledness is exacerbated, and the already-fraught counterweight of a duty to "do justice" is put under more extreme pressure.  That set of dynamics might partially explain some of the blockbuster episodes of prosecutorial overreach that captured public attention over the past decade.  Think, e.g., Alaska Senator Ted Stevens, whose saga actually inspired the introduction of federal legislation to broaden criminal discovery.  (Not that anything came of it.)  Or the infamous Duke Lacrosse cases.

Maybe a similar set of dynamics was at play in Houston last month during the trial of Robert Joseph Yetman, the Houston physician accused of fondling a child he had treated.  Trial judge Stacey Bond granted Yetman's request for a mistrial after one of the Harris County assistant district attorneys trying the case made comments suggesting that the white Yetman had targeted the young African-American victim because of the latter's race.  But the judge went further, issuing a detailed opinion making the rather extraordinary finding that both trial prosecutors had engaged in a pattern of improper behavior designed to "goad" the defense into putting a halt to the trial.  In essence, the ruling accuses the state of trying to pull the plug on a trial that they thought they were going to lose, so that they could get another bite at the apple.  Based on that finding, the judge ruled that Harris County wouldn't be able to retry Yetman.

I call the ruling "extraordinary" because it is so unusual for a court to bar retrial based on this "intent to goad" standard, a quirky rule of constitutional double jeopardy that presents a nearly insurmountable hurdle of proof for defendants.  In fact, I came across this case because I just finished teaching the "intent to goad" standard and puzzling with my students over the difficulty of meeting it. Sure enough, one of the students emailed me the next day to say he had found the Yetman ruling online.   (Thanks, Nick Willingham.)

The Houston Chronicle's story on the ruling states that the HCDA Office's position on the ruling is that it's wrong, wrong, wrong, and that they will appeal.  Fair enough.  In fact it might well be that the judge erroneously determined that the array of instances in which the prosecutors in the case disregarded her rulings and admonitions reflected concern that the jury would acquit and a desire for a do-over.  But if that's not what the trial prosecutors had in mind, what the heck were they thinking?

The trial court's ruling describes a "heated" trial in which the prosecutors were repeatedly at odds with their own witnesses and were visibly "frustrat[ed]" and "irritat[ed]."  Perhaps it's a classic instance of zealous advocacy and tacking close to the wind, mixed with worn-down humans exercising compromised judgment.  (For that matter, Judge Bond might have been plenty worn down herself.)  But regardless of whether the HCDA determines that there is room to argue with the legal ruling such than an appeal is warranted, supervisors in the office ought to be following up on whether and why these experienced lawyers' zealous advocacy crossed the line.

Moreover, they should do so not because the lawyers engaged in "misconduct" (again - I'm open to the possibility that the trial court is wrong here), but because a bad outcome occurred and there is undoubtedly a variety of individual and system factors within the control of the HCDA that contributed to it.  Am I calling Judge Bond's ruling a "sentinel event"?  Yup.  How refreshing it would be if the adversary legal response weren't the only one.

RELATED: From Murray Newman.