Crime & Courts

In rare SC case of ‘prosecutorial vindictiveness,’ Judge Toal splits the baby; each side wins

Some charges dropped for Jermaine Davis

Attorney Dick Harpootlian argued that the 5th Circuit Solicitor sought charges of armed robbery in retaliation for various Harpootlian defense moves.
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Attorney Dick Harpootlian argued that the 5th Circuit Solicitor sought charges of armed robbery in retaliation for various Harpootlian defense moves.

After a bruising court hearing Monday that questioned the integrity of 5th Circuit Solicitor Dan Johnson’s office, state Judge Jean Toal gave each side a victory.

Toal, former state Supreme Court chief justice now on senior status, rejected a request by defense attorney Dick Harpootlian to kick Johnson’s office off a criminal case involving a 17-year-old defendant facing carjacking charges. Having a case yanked from his office would have amounted to a rare public reprimand of Johnson.

After the hearing, Johnson – who apparently had flown back to Columbia from the Galapagos Islands in the Pacific Ocean off South America – shook hands with Harpootlian, who was accusing him of “prosecutorial vindictiveness.”

Johnson, whose office said last week he was taking a long-planned vacation and wasn’t coming back, had been under a subpoena to show up at Monday’s hearing. If he hadn’t obeyed the subpoena – a formal court order – he might have been subject to contempt of court charges, just like any other citizen.

Johnson told a reporter, “At the end of the day, (Harpootlian) won some, and I won some – that’s the way it is. Judge Toal is a great judge.” He declined to answer when asked if he had returned from the Galapagos.

“I think Johnson has learned a valuable lesson – when you’ve got a subpoena, you probably need to show up and not go on vacation,” Harpootlian said.

Toal’s decision means Johnson’s office will keep the case, but won’t be able to bring a last-minute charge of armed robbery it added to the carjacking case.

To Harpootlian, the tossing out of the armed robbery charge was crucial, since the minimum sentence for armed robbery is 10 years. Carjacking alone carries a sentence of from zero to 20 years, and a young defendant such as Jermaine Dupri Davis with no criminal record might just wind up with a five-year sentence if no armed robbery charge is added. The armed robbery charge might have added 10 years to any sentence Davis got for carjacking.

The armed robbery charge against Davis was in dispute because it pertained to a cellphone inadvertently left in the car by the victim when Davis stole it.

“The dismissal of the armed robbery was the most important result because it is such a horrendous charge if you get convicted,” Harpootlian said.

Davis was arrested last August and charged with murder and carjacking – unrelated offenses that happened on different dates, so they couldn’t be tried together.

The carjacking had been caught on videotape. But there was no physical evidence and only shaky witness testimony linking Davis to the murder. Despite the lack of hard evidence – and because of a request by Harpootlian to have a speedy trial – prosecutors tried Davis on the murder count in November. The jury deadlocked, with 11 jurors voting for acquittal and only one for guilty.

Harpootlian said Johnson was being vindictive after not being able to get a murder conviction.

After that trial, Harpootlian said he was ready to plead Davis guilty on the carjacking charge and accept a prison sentence. Harpootlian also asked Johnson’s office to OK Davis’ provisional release from jail.

After Harpootlian made that request, Johnson’s office added the charge of armed robbery of the cellphone left in the stolen car.

Harpootlian described the case as one of “prosecutorial vindictiveness” – meaning that Johnson’s office had brought the additional charge in retaliation for various defense motions as well as the deadlocked jury.

Several times, Toal went out of her way to stress that although the sequence of events created the appearance of possible vindictiveness, there was “no actual malice” involved on the part of Johnson’s office.

However, feelings ran high. The three-hour hearing featured Harpootlian calling assistant solicitor Meghan Walker to the witness stand to grill her about how she prepared indictments against Davis. And deputy solicitor Dan Goldberg called Harpootlian to the witness stand to interrogate him about when he first learned prosecutors were going to add an armed robbery charge.

At the hearing’s end, Toal went out of her way to praise all involved, saying that lawyers on both sides had “conducted themselves with high levels of professionalism.”

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