An aggravated sexual assault of a child trial took a number of unusual twists and turns before it ended Monday night with a hung jury and a mistrial.
A 54th State District Court jury deliberated almost eight hours Monday before telling Judge Susan Kelly they were hopelessly deadlocked 8-4 in favor of finding David Tovar Ramirez guilty in the alleged sexual assault of a 7-year-old family member.
Ramirez, who has been jailed 1,046 days waiting for his trial, was released on personal recognizance bond and ordered to wear an ankle monitor and remain under house arrest Tuesday afternoon after an agreement between state prosecutors Will Hix and Tara Avants and defense attorneys Jessi Freud and Alan Bennett.
No date has been set for a retrial.
Besides the hung jury, Ramirez’s trial was unorthodox in a variety of ways. Ramirez was set for trial last month. However, prosecutors dismissed the charge against him after Kelly declined to put the trial off because of the unavailability of a prosecution witness.
Hix, Avants and prosecutor Sydney Tuggle arranged for Ramirez to be re-indicted the following day on the same charge, and Ramirez, who enjoyed six days of freedom after the dismissal, was jailed again on the new indictment.
Ramirez’s trial started the day after Labor Day, but proceedings went off the rails Friday after Kelly and the attorneys on both sides met in an informal conference to discuss the judge’s instructions to the jury. The prosecutors objected to the judge’s instructions regarding the specific time frame in which the alleged assaults occurred.
After the ruling went against them, the prosecutors put the trial on hold Friday while they appealed the judge’s decision to the 10th Court of Appeals by filing an application for a writ of mandamus. The three-judge 10th Court panel denied the state’s motion Friday afternoon.
However, some assertions the prosecutors included in their application about the judge angered Kelly, who believed portions of their conference were off-the-record in an informal setting. But worse, the judge said in her response to the prosecutors Friday, was her belief that prosecutors included inaccurate statements attributed to the judge in the sworn filing to the intermediate appellate court.
Becoming visibly more animated, Kelly confronted the prosecutors about who placed what she termed the “perjured” information in the motion. Not getting an answer from the three prosecutors, she continued her queries, her voice elevating with each non-response. Ultimately, Kelly threatened to hold the prosecutors in contempt or to file State Bar of Texas grievances against them.
After that exchange, the prosecutors left the courtroom and returned with a motion to recuse, seeking to remove Kelly from the case just as closing arguments were set to begin. They alleged in the motion that Kelly showed bias against the state and acted unprofessionally toward them.
A recusal hearing was held late Friday afternoon via teleconference, with retired State District Judge Fancy Jezek, of Bell County, appointed to decide whether Kelly should stay on the case. Members of the DA’s office testified that they thought Kelly acted unprofessionally and “screamed” at the prosecutors.
Included in the state’s motion to recuse Kelly are several references to the judge as “he.” It was revealed during the hearing that the DA’s office “cut and pasted” portions of another recusal motion when they disagreed with a ruling by Associate Judge David Hodges and tried unsuccessfully to get him recused from a case.
Bennett, one of Ramirez’s attorneys, testified that he did not think Kelly screamed and said that during his 30-year law career, he had been angrily dressed down in a much more aggressive manner by other judges at the courthouse.
Freud argued that she thinks the state would not have filed the recusal motion if Kelly, who took office in January, had more experience on the bench and was a male judge.
Jezek denied the motion to recuse Kelly.
Freud and Bennett said Tuesday in a statement that they are grateful for the time and attention the jury gave to Ramirez’s case.
“The trial could have been over Friday and hundreds, maybe thousands, of dollars and jury time saved but for the state’s ill-conceived and meritless attempt to pursue a middle-of-trial challenge to Judge Kelly’s neutrality as a judge and decision to properly instruct the jury on the State’s date range stipulation.
“But this is what this district attorney’s office does when they don’t get their way: they don’t play fair. Fortunately, the 10th Court of Appeals and a visiting judge saw through the gamesmanship and we were able to finish up Monday night. We look forward to retrying this case at a later date,” Freud and Bennett said.
McLennan County District Attorney Barry Johnson agreed that the trial of the case was unusual but said his prosecutors did not commit perjury and should not face sanctions for their actions.
“Of course, the case is still ongoing, but I can say the district attorney’s office did what we thought was the right thing to do since we are not able to appeal any error that is injected into the case by the court,” Johnson said. “So we felt like there was error and the only way we have to protect error from going into the case is by mandamus. So we filed that.
“Subsequent to that, there was some activity that went on in the courtroom that our lawyers felt was inappropriate and showed bias on the part of the judge in favor of the defense, so the district attorney’s office then chose to file a motion to recuse Judge Kelly in the case,” Johnson said. “Sometimes these old lawsuits get tangled up, and they get difficult, and we have all been in them where one flew off the rails and into the ditch and it just stays there.”
Waco attorney Josh Tetens, who is opposing Johnson in the Republican primary, attended Friday’s court proceedings, vigorously taking notes that he said would be used as ammunition in his bid to unseat the incumbent DA.
“For the second time in less than six months, the State has tried to have a Judge recused because they disagree with their ruling,” Tetens said in a statement. “Barry Johnson must have learned this while practicing in Dallas County. In McLennan County we don’t throw the judge under the bus because we don’t get our way. As the next District Attorney I commit that I will seek justice, and not delay it with frivolous motions that waste taxpayer dollars and further delay cases.”