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Sometimes it feels like this website provides public service announcements to prosecutors, making it clear what they are not allowed to do. If these announcements strike you as catering to the lowest-common-denominator, well, we don’t really know what to say (except, perhaps, don’t eat yellow snow). This stuff happens in real life. Actual prosecutors—people who have been through law school and presumably passed a bar exam that includes an ethics component—make certain decisions, and those decisions sometimes backfire. With all of that, look at what the Texas Court of Criminal Appeals (“CCA”) wrote yesterday:

Playing a video of a lion trying to eat a baby to argue for a high prison sentence in a simple robbery case was an improper use of a demonstrative aid because the video invited an analogy that was not anchored to the evidence presented at trial.

So, yes. That just happened.

            We will not occupy your time with a penetrating review of the opinion. It seems like the court’s conclusion says it all. Feel free to click the link for a 22-page analysis of what unfolded. Here, we share some of our initial observations:

  1. This prosecution occurred in Harris County, the largest county in Texas. Prosecutors there have had a lot of power for far too long. The results? Not great.     
  2. The procedural history of this case shows: (a) how powerful prosecutors are in the criminal justice system; and (b) how much responsibility courts bear for letting them abuse that power. First, the trial court overruled the defense’s objection to the video. Then, on the direct appeal to the intermediate appellate court, the prosecution won. That court affirmed the conviction, denying the defense’s claim that the prosecutor’s use of the video was improper. Finally, on the next appeal to the CCA, the defendant prevailed. Meanwhile, consider the resources that have been expended on this matter. The robbery occurred in June of 2015. The unpublished intermediate appellate court opinion was handed down in August of 2017. And, yesterday, April 3, 2019, the CCA ordered a new trial. All of this because a prosecutor was inalterably committed to using a 30-second video to prejudice the defendant.
  3. In these cases, the trial prosecutors commit the initial wrongdoing, but those missteps are compounded on appeal. The appellate prosecutors go to work every day throwing arguments around to justify the conduct—no matter how egregious—that took place at trial. They, too, are responsible. In a case like this, it is not just the trial prosecutor—who was unfortunately unnamed in the opinion—who deserves negative publicity. According to Westlaw, the Harris County prosecutors on the first appeal were the DA herself, Kim Ogg, and Molly Wurzer.
  4. Trial courts grease the floor on the slippery-slope. Prosecutors are emboldened when they realize just how much they can get away with. Perhaps unsurprisingly, this was not the first time that Harris County prosecutors relied on the video of the lion trying to eat the child. According to the intermediate appellate court, “The State also points out that this Court has previously held that reference to the same lion and baby video was a permissible analogy relevant to a plea for law enforcement. In that case, the State did not play the video, but described it.” Trial court judges need to be more careful and make clear that prosecutors cannot do or say whatever they want during trial. Bad behavior, and uncreative argumentation, is communicable in the environment of a DA’s office.
  5. The use of media deserves a mention. As long-time readers know, prosecutors have been going wild with videos and PowerPoint presentations for the better part of the decade. Courts, too, are catching on. In this case, the CCA actually included the following video screenshots, reproduced here for your viewing pleasure:   

Just a quick reminder: Mr. Damon Milton was charged in a simple robbery, and there was no evidence that he was actually armed at the time of the offense. Nobody was physically injured or assaulted during the crime. But, you can be forgiven if that seems confusing. After all, that lion really looks like it wants to eat that baby. For good measure, let’s look at the prosecutor’s own words:

In a vacuum . . . it’s almost laughable because we know [Appellant is] such a bad guy. It’s almost laughable, just like that lion. You’re laughing Milton at that lion because he’s behind that piece of glass. Nothing funny about that lion when he’s outside that piece of glass, that’s a tragedy. Nothing funny when [Appellant] is outside of prison, that’s a tragedy. That’s what I meant when I said that video has everything to do with this case, because [Appellant is] never changing his motive.

But, wait. What if the lion is the prosecution? And the baby is the U.S. Constitution? In this case, the CCA can be proud of its role as the piece of glass.

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