'The outcome wouldn’t be different': No new trial for Tory Lanez in Megan Thee Stallion shooting
The rapper's lawyers filed two disqualification motions against Judge David Herriford during the two-day hearing to try to prevent him from issuing his ruling.
Tory Lanez won’t get a new trial over the 2020 shooting of fellow rapper Megan Thee Stallion after a judge on Tuesday rejected his lawyers’ arguments that his previous counsel’s shoddy work and alleged conflict of interest unfairly prejudiced him.
“In the end, the jury believed the prosecution’s case beyond a reasonable doubt,” Los Angeles County Superior Court Judge David Herriford said.
The 30-year-old Canadian rapper did not speak after Herriford denied his motion for new trial, but he told the judge before he was led out of the courtroom by sheriff's deputies on Monday, “Please don’t ruin my life. I could be your son. I could be your brother. Please don’t ruin my life.”
Herriford said Tuesday that he found no trial errors in the issues raised by Lanez’s new post-conviction lawyers, Matthew Barhoma of Los Angeles and Jose Baez, the prominent Miami, Florida, criminal defense lawyer who successfully defended accused child killer Casey Anthony in 2011.
But even if he determined the alleged errors were in fact errors, the judge said none had such an effect on trial that it could have changed Lanez’s guilty verdicts. He noted that Lanez’s lawyers didn’t mention any other evidence against Lanez when alleging problems with some evidence, but his job as a judge is to focus on the totality of the case, “not cherry pick very small portions.”
“Even if all these rulings had gone your way, the outcome wouldn’t be different,” Herriford said.
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Herriford also rejected Baez and Barhoma’s argument that Lanez’s previous lawyers Shawn Holley and George Mgdesyan provided ineffective assistance of counsel. He said Holley represented Lanez “effectively and vigorously,” as did Mgdesyan.
Lanez’s sentencing is scheduled for June 13; his lawyers can appeal his conviction and sentencing to the California Court of Appeal once he’s sentenced. Los Angeles County Deputy District Attorney Alexander Bott said he faces at least nine years in prison, with a maximum of 22 years and eight months.
A jury of seven women and five men deliberated seven hours over two days before convicting Lanez on Dec. 23 of assault with a firearm, unlawful discharge of a firearm and possession of an unregistered firearm in a vehicle. Jurors also found that he caused Megan great bodily harm when he fired five rounds at her — injuring both her feet — after she exited his Escalade about 4:25 a.m. in the Hollywood Hills on July 12, 2020, following a gathering at reality star Kylie Jenner’s home. He was taken into custody after the verdict and has been in jail since.
“I think any time you point a gun at someone and pull the trigger five times, that’s an action that could easily kill a person, and I think that’s an action that should have serious consequences,” Bott said outside court.
Barhoma said as he left the courthouse that he’s not yet considering sentencing.
“What I do now is that my guy, he’s a fighter and this is only the beginning, I’ll tell you that part,” Barhoma said. “I know my boy Tory. He’s a fighter, and he’s in this. So we’ll see what happens from here.”
Baez said on Monday, “We’re not going to stop until we get him out.”
Lanez’s lawyers twice move to disqualify Judge Herriford
Herriford rejected the new trial motion orally from the bench shortly before noon after hearing final argument from Baez, Barhoma and an associate, as well as Bott and Deputy District Attorney Kathy Ta. He heard five hours of argument on Monday.
His ruling followed a bold move by Barhoma and Baez to disqualify him from the case.
Baez told Herriford they were considering doing so late Monday afternoon after the judge said three times he was moving to final argument and they could either make their final argument or submit their case.
Barhoma and Baez grew upset with Herriford early in the hearing because he wouldn’t allow them to call witnesses and ordered them to address their arguments in the order he found most helpful, instead of the order they believed would be most persuasive. Each would-be witness submitted a written declaration, and Herriford said he’d read and considered each when making his ruling.
The judge also said calling witnesses is not customary for motions for new trial in California state court because, “This is a motion for new trial. It is not a new trial.”
“I know you don’t practice in this jurisdiction, but this is how motions for new trial are done,” Herriford said after Baez told him, “It’s literally the cart before the horse here.”
Baez also told the judge that his procedures “precluded us and shackled us — just like our client here — in our ability” to effectively present the motion.
Outside the courthouse, some of Lanez’s supporters told Barhoma they thought the judge was “biased” and “disrespectful.”
“Well, listen, I’m glad you guys saw it. My paperwork says it,” Barhoma replied.
A licensed lawyer in California since December 2017, Barhoma took an aggressive approach with Herriford, at one point telling the judge, “Can we just make sure we get concise rulings so the record is clear?”
“I’m being as concise as I can,” Herriford said through an apparent mix of annoyance and amusement.
Baez and Barhoma asked Herriford to delay his decision on the new trial motion until their disqualification motion was resolved, in part to ensure “that we are filing the proper documents.”
“I’m not from the jurisdiction,” Baez said. “Mr. Barhoma has never filed one.”
Baez also said he and Barhoma “were under the impression that the court is precluded from doing this until this is resolved.”
“Well, I recommend you two read 170.1,” Herriford said, referring to California Code of Civil Procedure , which allows for judges to be disqualified if they have a vested interest in the case or other biases.
Barhoma and Baez also moved to disqualify Herriford under Code of Civil Procedure 170.6, a more common judicial disqualification method in California that must be filed within 10 days of a case being assigned to a judge. Barhoma wrongly argued on Tuesday that 170.6 motions can be filed “before a hearing,” but Herriford wasn’t persuaded and rejected the motion as untimely.
‘Delicate’ accusations about Lanez previous lawyers’ work
The crux of Barhoma’s and Baez’s argument for new trial concerned the performance of his previous lawyers, because most of the errors alleged stemmed from there.
Barhoma and Baez didn’t initially accuse Mgdesyan of ineffective assistance of counsel, only “by way of conflict” through Holley. But that changed as the hearing progressed, and Baez answered “yes” when Herriford asked if he was accusing specifically Mgdesyan of ineffective assistance of counsel.
“Why was that not in the original papers?” Herriford asked.
“I was trying to be as delicate as I could under the circumstances,” Baez said. “I gain no pleasure from attacking any defense lawyer.”
Baez and Barhoma made clear they believe Holley shoulders blame for Mgdesyan’s performance. She enlisted Mgdesyan two weeks before trial and was in Florida representing former Los Angeles Dodgers pitcher Trevor Bauer during Lanez’s trial, though she advised Mgdesyan remotely. Baez said some of Mgdesyan’s trial deficiencies were “frankly, because he wasn’t fully aware and alerted to all the facts.”
“I don’t know anyone in this country who’d want to go to trial with a lawyer who’s been on the case less than two weeks,” Baez said. However, Herriford later said Holley’s correspondence indicates Mgdesyan was involved in the case as early as three months before trial and that he and Lanez have known each other much longer.
Baez and Barhoma said Holley’s problem began when she was accused in pre-trial proceedings of leaking discovery — possible evidence and other investigative documents — given to her by prosecutors, though Herriford later said she wasn’t actually accused of doing that. Baez argued Holley proceeded to put her own interests above Lanez’s interests, including when she told the judge she was in the process of hiring a DNA expert, but “that turned out to be false” and an expert wasn’t retained for another eight months.
A new DNA expert hired by Baez and Barhoma analyzed the same DNA evidence and believes Lanez is excluded as a contributor. The prosecution’s DNA expert and an expert hired by Mgdesyan and Holley had said Lanez’s DNA could neither be included or excluded from the DNA on the gun.
Barhoma told Herriford that prosecutors “submitted to the court false evidence” by saying the DNA results were inclusive. But Herriford didn’t seem to agree, saying, “But that’s what your own expert said.”
Baez and Barhoma at first struggled on Monday to fully describe their allegations against Holley in open court because the supplemental filing that details them was sealed from public view.
Baez said he sought guidance from Judge Herriford on how to approach the sensitive attorney performance issues about Holley because it pained him to have to bring such allegations. “I’m a huge admirer of this lawyer since I was in law school,” Baez said. He later said Holley never litigated any pretrial issues other than Lanez’s bond in her two years as his lawyer. (Holley was defending actor Danny Masterson in his rape trial on the opposite end of the hallway on Tuesday. She did not comment on the allegations when I approached her.)
Baez indicated on Monday the sealed filing was hindering his ability to fully articulate his points regarding Holley, so Herriford said Lanez could waive attorney-client privilege to allow it to be unsealed, though the judge warned, “There’s some things in there that I don’t know you want to come out.”
Lanez waived the privilege later in the afternoon, first speaking with Baez before answering, “Yes, sir,” when Herriford asked if he understood what he was doing.
DNA evidence ‘a very small piece of a large puzzle’
Barhoma’s and Baez’s criticism of Holley’s and Mgdesyan’s work relates to a key problem Herriford identified with many of the alleged trial errors raised in their motion: The lack of objections during trial by Mgdesyan.
Herriford said some of the issues raised by Baez and Barhoma aren’t legally viable because of Mgdesyan didn’t take action regarding them. That includes Harris’ full 80-minute interview with prosecutors being played for the jury and an Instagram comment that Barhoma and Baez argue shouldn’t have been allowed as evidence.
Herriford addressed the Instagram argument first when issuing his ruling on Tuesday. The comment came from Lanez’s account, and it said “that’s not true” in reply to a comment that said people were saying Harris, not Lanez, shot Megan. Prosecutors showed it to jurors to try to refute Lanez’s defense that Harris shot Megan. Herriford allowed it after they filed a motion on the second day of trial.
Lanez’s lawyers argued the late disclosure shouldn’t have been allowed; Herriford said Lanez should have asked to delay the trial or for the jury to be instructed that prosecutors had disclosed it late.
Herriford also said Mgdesyan thoroughly addressed in trial the fact that Lanez may not have authored the comment himself.
“I will note that this was an extremely minor issue in the case,” Herriford said.
The judge said the same thing about the expert testimony that said Lanez’s DNA couldn’t be included or excluded from the gun. The DNA is “in some ways, a very small piece of a large puzzle.”
Herriford also rejected the argument that jurors should not have heard Megan and Harris say that Lanez told them not to say anything about the shooting because he was on probation. Lanez actually had a deferred prosecution out of Florida, and Baez and Barhoma said the testimony amounted to jurors hearing of a prior bad act by Lanez.
Herriford, however, agreed with prosecutors that the testimony was permissible, and also that it was stated not for the truth of the matter, but for the effect it had on Megan and to help explain why she falsely told first responders she’d only stepped on glass.
The judge also reminded everyone that he’d instructed the jury regarding the probation versus deferred prosecution issue.
Barhoma and Baez also argued jurors shouldn’t have seen Lanez’s tattoos, but Herriford said prosecutors only pointed out Lanez’s AK-47 chest tattoo after Mgdesyan repeatedly asked questions of Megan’s former stylist E.J. Culberson that implied Lanez had no interest in firearms.
The judge also called “completely without merit” a new argument made Monday that jurors should never have heard Lanez’s stage name, only his legal name, noting that Mgdesyan called Lanez that throughout trial.
Lanez’s lawyers also argued Herriford errored when he said prosecutors could question Lanez about lyrics related to the case. They said Herriford’s decision led to Lanez not testifying and violated a new California law on creative expressions being used against criminal defendants. But the judge emphasized the law doesn’t disallow creative expressions as evidence, it merely alters the legal balancing test for judges considering whether to allow it.
Herriford also dismissed the ineffective performance arguments about Holley and Mgdesyan and said no one actually accused Holley of leaking discovery or bribing anyone. Rather, he said, the testimony regarding her involvement in an attempted bribery was Harris saying that Lanez told her Holley instructed him how to structure the bribe. Like the issue regarding Lanez supposedly telling Megan he was on probation, Herriford said Holley’s involvement was mentioned for the effect it had on the listener, not for the truth of the matter.
DA: Defense social media blitz ‘not done in good faith’
After Herriford rejected the motion he allowed the attorneys to return to court after a 90-minute break to comment on his ruling. Baez went through all the witnesses they wanted to call and described how they would have questioned them, including Holley, Mgdesyan and ethics lawyer Erin Joyce.
Bott told Judge Herriford the hearing was essentially “defense attorneys coming in and asking for a re-do because they don’t like the results.”
He took particular issue with how Baez and Barhoma approached their argument about the DNA. Bott said prosecutors were wrongly accused of misconduct when they actually gave all the benefit to Lanez in their analysis by saying the DNA results were inconclusive. In reality, the result showed Lanez was slightly more likely to be included in the sample. He said the argument that the new expert hired by Barhoma and Baez could outweigh the other experts “is a ridiculous argument,” and he noted that they sealed their supplement, “then went on social media” and told “the world that Mr. Peterson was excluded from the gun.”
Bott said the approach was “disingenuous, and reeked of gamesmanship.”
“It was not done in good faith,” he said.
Baez tried to say something, but Herriford stopped him.
“This is only grandstanding to people in the audience,” the judge said.
(Baez and Barhoma then asked if they could stay the proceedings until the judge ruled on their 170.6 disqualification motion, and Herriford reminded them he’d already rejected it.)
The social media Baez’s and Barhoma’s recent social media posts focused on eyewitness testimony and alleged “misleading” DNA evidence.
The hearing, however, made clear that their new DNA analysis is not based on new evidence but is instead based on the same DNA evidence presented in trial. That contradicts what Lanez told his 12 million Instagram followers in two audio recordings from jail as well as a letter he addressed to Los Angeles County District Attorney George Gascón. The rapper falsely claimed Bott, Ta and their DNA expert “completely manipulated my DNA results and lied to the world, the media and most importantly, my jury.”
Baez previewed Lanez’s final false claim on April 25 by posting on his own page, “Today is National DNA day and we are happy to announce that Tory Lanez will be releasing information about the DNA in his case that gave false & misleading information to his jury. #freetorylanez.”
Barhoma also wrote on Instagram, “One thing that never made any sense to me about the ToryLanez case is that the eye witness testimony says he did not shoot. And this is why the proper DNA evidence needs to be presented to an untainted jury.”
Barhoma posted transcript excerpts from the testimony of Sean Kelly, the Hollywood Hills homeowner who witnessed the shooting from his balcony and called 911 to say he saw a group of people beating a woman. He highlighted Kelly answering “yeah” after Mgdesyan asked if Lanez may have grabbed the gun from the women. The lawyer wrote: “Hence why ToryLanez’s DNA is eliminated.”
Barhoma didn’t mention that Kelly also testified he saw Lanez fire “four or five” shots.
Amid the heightened social media acrimony, Herriford held the hearing not in his usual 15th floor courtroom but in a courtroom on the more secure 9th floor, where judges assigned to complex criminal cases preside.
All members of the public must pass through a metal detector to enter the 9th floor courtrooms, and those without county sheriff’s or city police media credentials must put their phones in a locked bag. At least one sheriff’s deputy is assigned to the floor at all times; several additional deputies were on hand for Lanez’s hearing. There were no incidents.
DAs cite ‘overwhelming’ evidence against Lanez
Lanez wasn’t initially charged with assault because Megan told first responders she’d only stepped on glass, despite requiring surgery to remove bullet fragments in her feet. Some still remain, and Megan testified she still has pain in her feet.
In their opposition to Lanez’s motion for new trial, prosecutors said the evidence against him is “overwhelming.” That evidence includes a recorded phone call Lanez made to Harris from jail in which he repeatedly apologized, asked about Megan and the name of the hospital she’s in, and said he was highly intoxicated and “didn’t even know what was going on.”
“I don’t even remember what we was even arguing about,” Lanez said. “Regardless if I get out of here today or not, bruh. I just want to let y’all know I’m sorry. I’d never did that shit if I wasn’t that drunk.”
Prosecutors also showed jurors in the December trial apologetic text messages Lanez sent Megan after he was released from jail.
Mgdesyan emphasized to jurors that Lanez never mentioned a gun or a shooting in the call and was actually apologizing for causing a jealous fight between Megan and Harris that resulted in Harris shooting her.
Baez, however, indicated this week he believes Mgdesyan’s “this case is about jealousy, ladies and gentlemen” approach was a mistake: He said testimony about Lanez’s supposed conflicted romantic interest with Kylie Jenner and Megan played into a prosecution narrative about a misogynistic rapper.
“None of that is relevant. All of this is prejudicial,” Baez said.
I will have more coverage of Lanez’s case this week. Stay tuned.
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