All the details on Tory Lanez's motion for new trial in the shooting of Megan Thee Stallion
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All the details on Tory Lanez's motion for new trial in the shooting of Megan Thee Stallion
The rapper's lawyers argue the trial judge errored by saying prosecutors could question him about songs related to the case, which caused him not to testify.
Lawyers for rapper Tory Lanez say he deserves a new trial over the 2020 shooting of Megan Thee Stallion in part because of the judge’s decision that prosecutors could question him about some of his songs if he testified.
The motion filed Wednesday also argues the Los Angeles County jury that convicted Lanez considered evidence that shouldn’t have been been allowed, including a comment from Lanez’s Instagram account that said “that’s not true,” in reply to someone saying people were alleging that Megan’s now-former friend Kelsey Harris fired the shots that injured Megan’s feet on July 12, 2020.
Megan, Harris and Lanez were leaving a gathering at reality star Kylie Jenner’s Hollywood Hills home when Megan exited the Escalade in a residential area and someone fired five rounds from a handgun. Megan, whose legal name is Megan Pete, initially told police she’d stepped on glass, though she underwent surgery to remove bullet fragments in one of her feet and was hospitalized overnight. She contacted investigators four days later and said she’d actually been shot by Lanez.
The 28-year-old three-time Grammy winner took the stand on Dec. 13 in Los Angeles County Superior Court Judge David Herriford’s courtroom. She testified that she heard Lanez say “Dance, bitch” before he fired five rounds in her direction, but Lanez’s lawyer argued Harris had shot Megan in a jealous fight over their mutual romantic interest in Lanez. A jury deliberated seven hours over two days before convicting Lanez on Dec. 23 of felony assault with a semi-automatic firearm, discharge of a firearm with gross negligence and having a concealed and unregistered firearm in a vehicle. Jurors also found that he caused Megan great bodily harm.
The 30-year-old Canadian citizen, whose legal name is Daystar Peterson, was remanded after the verdict and remains in jail awaiting sentencing.
The case has drawn huge interest in the hip-hop music industry and beyond since its inception, and the Instagram comment at the center of Lanez’s motion for new trial is a product of that focus. It was written on Sept. 25, 2020, in reply to a comment left on the Instagram page of the gossip powerhouse The Shade Room, which has 28 million followers.
Lanez’s lawyers say the comment was written not by Lanez but by his social media manager, and prosecutors didn’t properly disclose ahead of trial that they would be using the comment as evidence. Their motion argues prosecutors “heavily overstated the value of Instagram post” and also overinflated the inconclusive DNA evidence found on the gun used in the shooting.
It also argues prosecutors presented a false “history of criminality” for Lanez and were mistakingly allowed to play for the jury Harris’ entire 80-minute pre-trial interview with prosecutors And it argues prosecutors interfered with Lanez’s right to counsel by suggesting his original lawyer, Shawn Holley of Kinsella Weitzman Iser Kump Holley LLP, had tried to bribe Harris. Holley “stepped back” from representing Lanez 12 days before trial, then quit altogether mid-trial.
Additionally, the motion argues Lanez’s tattoos shouldn’t have been shown to the jury because they are creative expressions, including one of an AK-47. The motion says prosecutors highlighted the tattoo to imply Lanez has a propensity for guns when the tattoo actually is a “homage to his idol Tupac Shakur.”
“Mr. Shakur used his music and tattoos to discuss socio-political issues affecting the black community in the nineties,” according to the 84-page filing. “Yet, he, too, was misunderstood.”
Deputy District Attorneys Alexander Bott and Kathy Ta plan to file written opposition to the motion, which Judge Herriford is to consider on April 10. Lanez is scheduled to be sentenced on that date, but Bott said in an email this week that if the motion is denied, the sentencing will be delayed, likely to late April or early May.
Motions for new trial aren’t often granted, but the issues raised in them can preview the issues lawyers might raise with the California Court of Appeal, which is a different process than a motion for new trial. Lanez’s attorneys can’t file an appeal until after he’s sentenced.
Here’s a summary of the issues raised in Lanez’s motion.
The late admission of the Instagram post
The motion reveals some of the issues that would have been done in open court were this case not have tried in Los Angeles County Superior Court, including that prosecutors asked Judge Herriford to allow them to introduce a screenshot of the “that’s not true” Instagram comment on Dec. 13 — the second day of trial. Herriford said yes, and jurors saw the comment through the testimony of Los Angeles police Detective Warren Eberhardt.
Lanez’s motion argues Herriford’s allowing of the post as evidence violated California law requiring that prosecutors timely disclose evidence to the defense before trial. It says prosecutors should have known of the comment long before Dec. 13, and Lanez’s lawyers would have called Lanez’s social media manager, Joshua Farias, as a witness if they’d had time.
“Whether the People feigned ignorance of the post’s existence and delayed its disclosure to the defense, or they conducted a lackluster investigation, they violated their duties under the reciprocal discovery rule,” according to the motion, which includes a declaration from Farias.
Further, the original post from The Shade Room said the firearm seized by police belonged to Lanez, the motion argues, and it amounted to improper hearsay evidence.
“The People offered no other evidence on the issue of gun ownership,” according to the motion. “Thus, the Instagram post was crucial to the People in securing a conviction, at minimum, for carrying a concealed firearm within a vehicle.”
Prosecutors are likely to bring up in their reply that Lanez’s trial attorney George Mgdesyan addressed the authorship issue in his cross-examination of Eberhardt, and it may have been Mgdesyan most effective trial examination. Mgdesyan explored in full the fact that Eberhardt did not consider that Lanez may have had someone else managing his social media accounts.
Megan Thee Stallion’s statements to police
The motion also argues the jury improperly heard about statements Megan made to Los Angeles police Detective Ryan Stronger on July 16, 2020, four days after the shooting, in which she said Lanez told her, “please don’t say anything because I’m on probation.” On the stand, Megan testified that Lanez also told her, “I can’t go to jail. I already got caught with a gun before.”
Lanez was not on probation but had a prosecution diversion in Broward County, Florida, over a 2017 arrest. Mgdesyan questioned Stronger about Lanez’s lack of probationary status, which led to prosecutors eliciting testimony about Lanez’s 2017 diversion. But Lanez’s motion argues that wasn’t enough to “minimize the blow” of allowing Megan’s statements regarding Lanez’s probation claim.
The statements “wrongfully painted Defendant as a gun-wielding career criminal despite their minimal value regarding whether he was the shooter in the case,” according to the motion.
“Even if the People’s version of events were to be accepted as true, their position amounts to what is more appropriately described as a singular incident of domestic violence between two feuding former paramours, not a criminal on a spree of gun violence,” according to the motion.
Shawn Holley quitting as Lanez’s lawyer
Holley is a high-profile lawyer whose career representing celebrities began with O.J. Simpson’s 1995 murder trial. Lanez hired her early in his case, the motion says, in part for tactical reasons — “she is a female attorney and he was facing charges alleging violence against a woman.”
But Holley was never in court during trial, instead giving the case to Mgdesyan shortly before it began but still technically staying on as one of Lanez’s lawyers.
Lanez’s motion tries to connect Holley’s departure to the allegation that Lanez tried to bribe Harris to stay quiet about the shooting, while emphasizing Harris’ “erratic and inconsistent answers” regarding whether a bribe occurred at all.
The motion says prosecutors acknowledged in September 2022 that they did not believe Holley was involved in any bribery attempt by Lanez against Harris, but they “nonetheless opted to wait until mid-trial to raise the exact same allegations against counsel, relying on nothing more than Harris’ same inconsistent statements dating back to September.”
Holley was mentioned three times in testimony related to Lanez’s alleged offer to invest in Harris’ business. The motion said she was “still on the larger defense team” after she “stepped back” 12 days before trial, but after her third mention in trial, “Attorney Holley found it necessary to fully withdraw from her representation of Defendant.”
“This left Defendant with two male attorneys, Mgdesyan and (Sarkis) Manukyan, as his primary representatives, fully eradicating his tactics-based representation plan,” according to the motion.
The motion says many of the changes in counsel “occurred before the jury’s very eyes,” though it omits the fact that Holley was never in the courtroom for jury selection or any moment of trial.
Judge Herriford delayed the trial at Holley’s request last September because Holley said she was busy representing now-former Los Angeles Dodgers pitcher Trevor Bauer in his arbitration with Major League Baseball over his sexual assault-related suspension. The arbitration was going on when Lanez’s trial began in December, and media reports cited that as a conflict that led Holley to give the case to Mgdesyan.
But Lanez’s motion indicates it’s actually the bribery allegations that drove Holley from the case and put her “in a position to choose between her interest in and loyalty to herself and her professional reputation, and her loyalty to her client.”
Holley declined to comment on Friday when reached through her spokeswoman, Holly Baird.
Prosecutors’ ‘inconclusive’ DNA evidence
Lanez’s attorneys argue prosecutors shouldn’t have been allowed to tell jurors that Lanez “could not be excluded” as a contributor to the DNA evidence found on the gun.
They acknowledge Lanez’s own defense expert testified that his findings regarding the DNA not being inclusive or exclusive for Lanez “did not inherently differ from that of the state’s expert.” But they pointed out that the defense expert stated it would have been standard to take a DNA sample from everyone at the scene, which police didn’t do.
The motion also says the DNA testing methods used didn’t comply with industry standards, so the expert testimony was oversimplified and allowed prosecutors to portray the DNA evidence “as being heavily inculpatory” against Lanez.
“Contrary to the prosecution’s position, analysis under the appropriate and established quantitive standards would have shown that Defendant was no more likely than most other black men in the population to have been a contributor to the profile,” according to the motion. “It was inappropriate for any comparative and qualitative conclusions to have been reached based on the evidence available to the State’s experts.”
The motion raises questions about the quality of Holley’s pre-trial work for Lanez, saying the defense’s DNA expert “failed to ever memorialize any of these findings in any formal report or documentary form.” The expert “was never asked to produce a report on the issue of DNA in advance of the trial,” so nothing was available to present to the jury “to clarify the true weight of the DNA evidence.”
The motion says the issues surrounding the DNA evidence means it never should have been used in trial because it was “unduly prejudicial.”
“While, of course, no misleading evidence should be presented to the jury, if any misleading evidence is presented, it certainly should not be DNA evidence given the high value placed upon it by jurors, as occurred in the instant matter,” according to the motion.
Lanez’s Tupac-inspired AK-47 chest tattoo
As of Jan. 1, 2023, California law prohibits rap lyrics and other creative expressions from being used as character evidence against criminal defendants.
Lanez’s motion acknowledges he was convicted nine days before the law took effect, but it argues he still “was deprived of the due process safeguards” afforded by it because prosecutors implied he had a criminal propensity because of his artistic persona as a gangster rapper.
It asks Judge Herriford to do something novel under the new law — deem Lanez’s tattoos a form of creative expression that jurors shouldn’t have been allowed to see.
“As indicated in the statutory notes, the legislative intent behind the new framework is to ensure artists, particularly rap artists, are not criminalized based on evidence of creative expression that plays up stereotypes and racial bias,” according to the motion.
At issue is a photo of a shirtless Lanez at a Los Angeles police station after his arrest on a gun charge following the July 12, 2020 shooting. He’s wearing shorts embroidered with “rest in peace,” and his upper body is covered in tattoos, including an assault rifle in the middle of his chest.
The photo was entered as evidence during the testimony of Los Angeles police Officer Sandra Cabral regarding the gunshot residue tests conducted on Lanez as well as Harris and Lanez’s driver, Jaquan Smith. Photos of Harris and Smith were entered as evidence, too, but Lanez’s motion argues their photos “cannot earnestly be seen from the ‘same vantage point’” when only Lanez is facing criminal charges.
“Accordingly the statutory framework and its underlying public policy support a finding that Defendant’s tattoos constitute a form of creative expression under Evidence Code section 352.2,” according to the motion, referring to the new law. “Moreover, the prosecution weaponized Defendant’s gun tattoo against him — both literally and figuratively — in including it at trial,” the motion continues, calling Lanez’s photo “racialized character evidence.”
It references prosecutors asking Eric Culberson, Megan’s former stylist, “Do you see the big gun that Tory has tattooed on the center of his chest?” arguing the tattoo was neither big nor relevant.
The motions says the tattoo matches the AK-47 tattoo that Tupac had on his chest, “thus the meaning behind Defendant’s tattoo is quite the opposite of the meaning prosecutors designated to it and which jurors perceived.”
The butcher scenes in Lanez’s ‘CAP’ music video
The motion also cites Megan’s testifying on Dec. 13, “I got to watch Tory drop music videos chopping up horse legs and people laughing at it, like that’s OK.”
She was referring to the video for Lanez’s song “CAP,” which features the rapper posing as a butcher and chopping bloodied horse legs.
(Warning: The video below contains explicit content.)
The motion also implies the video is not a reference to Megan, saying Megan’s testimony was “inferring any references to stallions or horses may be associated with her.” Her testimony “poisoned the proceedings by directing the jury to infer that if Defendant was ‘chopping up horse legs’ in a music video, he was violent enough to shoot her.”
Prosecutors cited the video when arguing Lanez violated a pre-trial protective order, and they told Judge Herriford they planned to question Lanez about it if he testified, along with song lyrics denying he shot Megan and in which he allegedly lied about his height. Lanez chose not to take the stand, but his motion says the mere decision by Herriford to allow the questions if he did was an error that warrants a new trial.
The motion cites the California Court of Appeal reversal of a murder conviction that involved rap lyrics as evidence. The ruling was issued last October, after the law had passed but before it took effect, so the motion argues that Lanez being convicted nine days before the law took effect shouldn’t preclude him from its protections.
During trial, Judge Herriford said he’d take the admissibility of lyrics and other issues on a “case-by-case basis” if Lanez testified but “anything pertaining to this case, obviously is fair game.”
“This error drastically prejudiced Defendant’s defense because it wrongfully induced him to waive his constitutional right to present his version of events and to allow the jury to see him as Daystar, and not the violent, ‘gun carrying,’ tattooed gangster the People painted him to be,” according to the motion. “The court’s error caused Defendant to surrender his constitutional right to testify in his own defense under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and Article 1, Section 15 of the California Constitution.”
Kelsey Harris’ 80-minute interview
Lastly, Lanez’s motion argues prosecutors should not have been allowed to play Harris’ 80-minute pre-trial interview for the jury because doing so violated Lanez’s 6th Amendment right to confront his accusers.
Judge Herriford allowed Harris to invoke her 5th Amendment right against self-incrimination during trial, but prosecutors offered her immunity for her testimony and she took the stand, anyway.
Harris then proceeded to testify in direct-examination that she’d been untruthful in the pre-trial interview when she identified Lanez as the shooter, and that she actually had never seen him with a gun and didn’t see him shoot Megan.
Some of her testimony showed a misunderstanding of the 5th: When asked what Lanez said when he threatened to shoot her in the Escalade before he shot Megan, Harris said, “Can I take my 5th?” (Herriford also allowed Mgdesyan to question Harris about the legal process for invoking the 5th, including that the judge would have had to believe she was facing criminal exposure to allow her to do so.)
But much of Harris’ direct testimony was spent battling Deputy D.A. Ta’s questions about her prior interview in September, in which she candidly and vividly described what happened before and after the July 12, 2020, shooting, including identifying Lanez as the gunman. Bott’s opening statement previewed Harris’ expected testimony based on that interview, but Harris took a much different demeanor on the witness stand in the packed courtroom.
However, after an aggressive cross-examination by Mgdesyan, Judge Herriford granted an unusual request by prosecutors that helped them more than any questions about Harris’ prior statements ever could: He allowed them to play Harris’ 80-minute pre-trial interview for the jury in its entirety because Mgdesyan implied in his questions that prosecutors unfairly pressured her during it to conform to their narrative. Prosecutors said they should be allowed to play the interview to show they weren’t pressuring Harris, and Herriford agreed.
Lanez’s motion acknowledges it’s lawful for prosecutors to question witnesses about prior inconsistent statements like they did with Harris, but it argues the allowance of the entire recording was erroneously admitted and “deeply harmful to the defense’s case.” Lanez’s lawyers weren’t given a transcript of the interview beforehand, and they didn’t have the opportunity to examine Harris about the interview afterward because it was played after she testified.
An uninvolved criminal defense lawyer weighs in
Lee Stonum, a criminal defense lawyer in Orange County, read Lanez’s motion and said the arguments about the Instagram comment and the tattoos and rap lyrics “are Lanez’s best hopes” because they raise new issues not represented to Judge Herriford during trial.
“You’re not going to get a trial judge to simply say “oh, I was wrong about that,” without showing there was some information that they didn’t have that should have led to a different ruling,” Stonum said in an email.
Stonum said he’s surprised the motion “does not allege ineffective assistance of counsel for not investigating and uncovering the information contained in the affidavit concerning authorship” of the Instagram comment.
“If I were the prosecutor, I would argue that this information would have been known to Lanez at the time the evidence was disclosed. The motion is silent as to whether trial counsel sought a continuance and, if not, why not,” Stonum said.
(As I explained above, Mgdesyan addressed the questions about the true authorship of the comment in cross-examination.)
Stonum said a big factor in Herriford’s decision will be whether not allowing the Instagram comment in trial could have led to a different verdict under the standard established established in 1956 by the California Supreme Court in People v. Watson.
“In other words, even if the admission was erroneous, was it harmless? The argument that the admission of this piece of evidence constituted a miscarriage of justice and thus requires reversal without regard to prejudice is not very persuasive,” Stonum wrote.
Stonum said the argument regarding Holley “is completely unconvincing” and fails to “actually connect the dots showing that the concerns about Holley’s possible involvement in bribery of a witness led to her diminished role at his trial.”
“If this argument was going to be taken seriously, it would require affidavits from Holley and his lead trial counsel affirming that this was the reason Holley stepped back,” Stonum said. “The “last-minute shift in counsel” is described as unexplained. Of course, the only people in a position to explain the shift are Holley, Lanez and his trial counsel.”
Further, Stonum said the argument about DNA evidence “isn’t even really worth addressing.”
“The motion is unclear whether Lanez even sought to exclude such evidence. If he did not, he either waived it or needs to raise ineffective assistance of his trial counsel, which he doesn’t. Moreover, the exclusion of inconclusive DNA evidence is not likely to have resulted in a different result If anything, the fact that Lanez’ could not be connected to the gun via DNA was good for him and likely evidence he wanted before the jury,” Stonum said.
The argument about Harris’ interview also “goes nowhere,” he said.
“She testified. That’s confrontation,” Stonum said.
Stonum doesn’t believe the argument about tattoos qualifying as creative expressions will succeed. But he said the argument about Lanez’s lyrics being improperly used to deter him from testifying “seems it may have some merit,” though it’s difficult to analyze because Lanez didn’t testify so no lyrics were actually introduced to jurors.
“Given that it seems unlikely based on [the law's] effective date that the court analyzed the evidence under the new statute, this seems to be an argument worth taking seriously,” Stonum said.
The state of Lanez’s legal team
Lanez’s current lead counsel is Jose Baez, the famed lawyer in Miami, Florida, whose high-profile cases include the successful defense of accused child killer Casey Anthony in 2011 and the successful defense of the now-late NFL player and accused double murderer Aaron Hernandez in 2017.
Baez has never tried a case in California and is not licensed to practice law in the state. Lanez’s motion is signed by Matthew Barhoma, a licensed lawyer in California since 2017 and Lanez’s second chair counsel.
Baez recently took over as Lanez’s lead counsel in place David Kenner, who took over for Mgdesyan after trial. A licensed lawyer in California since since 1968, Kenner successfully defended rapper Snoop Dogg in his 1996 murder trial, which is the case that inspired Snoop’s song “Murder Was The Case.” Snoop Dogg performed at his 80th birthday party in 2021; Kenner told me he has a video of the rap icon at the party saying, “Without David Kenner, there'd be no Snoop Dogg.”
Kenner also represented Death Row Records co-founder Suge Knight in a robbery case in the early 1990s in which Knight received probation. He briefly represented Knight after he was charged with murder in 2015 for a fatal hit and run in the parking lot of Tam’s Burgers in Compton, but he didn’t stay on the case. Knight went on to plead no contest to voluntary manslaughter and is serving 28 years in prison. Kenner then represented Knight in a civil trial related to the death.
An attorney who has obviously embraced his status in the rap world, Kenner appeared in court for Lanez twice after the verdict; both times joined by Death Row co-founder Michael “Harry-O” Harris. But he’s currently representing Prakazrel “Pras” Michel, formerly of the 1990s hip-hop group the Fugees, in a federal criminal trial in Washington, D.C., over charges that Michel unlawfully injected foreign money and influence into U.S. politics and policy.
Kenner has been on Michel’s case since July 2021. He unsuccessfully tried to delay the trial on March 16, citing late discovery admissions by prosecutors, then unsuccessfully tried again on March 22. A jury was impaneled on March 30, the same day Baez announced the new trial motion and the counsel change in a statement from Lanez posted to Baez’s law firm’s Instagram stories.
“I am happy to announce to all of those interested in justice, that today my attorneys Jose Baez and Matthew Barhoma filed my motion for a new trial. Additionally, due to a scheduling conflict, David Kenner will no longer be part of my defense team. I would like to thank Mr. Kenner for his hard work and wise counsel. Jose Baez will continue to represent me as first chair and Matthew Barhoma as second chair.”
The April 10 hearing before Judge Herriford is scheduled to begin at 8:30 a.m. I don’t know when prosecutors will file their opposition to Lanez’s motion, but I’ll be watching for it and will of course be at next week’s hearing. I’ll email articles before I tweet them, so subscribing to Legal Affairs and Trials with Meghann Cuniff is the best way to stay in the loop and support my independent journalism.
All the details on Tory Lanez's motion for new trial in the shooting of Megan Thee Stallion
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