Jump to content

4th and 5

Legacy Members
  • Posts

    3093
  • Joined

  • Last visited

Posts posted by 4th and 5

  1. 6 minutes ago, TXSooner518 said:

    "I was so lucky to not have to carry my equipment far b/c I got a close parking spot.  Of course, rather than taking literally 1 second to verify what floor I was on, I decided to carry all that heavy equipment past 16 doors to get to mine, despite the fact that this is the most confusing apartment complex in history, and no one can tell by looking what floor they are on."

    do you not have a woman in your life?

    • Like 5
    • Haha 1
  2. If you care to take the time, here is where the defense is headed in the next few days

     

    =============

    DR. MARC GREEN, DEFENSE EXPERT:

     

     

    Is It A Gun? Or Is It A Wallet?"
    Perceptual Factors In Police Shootings of Unarmed Suspects

     

    Marc Green

     

     

    Seminar Available on this topic.

     

    Police officers sometimes shoot unarmed suspects in error. The majority, about 71%1, occur at night under poor visibility conditions. In one common scenario, a suspect suddenly produces an object in his hand. The officer, believing the object to be a weapon, fires at the suspect. The officer then approaches, only to see that "gun" was actually something as innocuous as a driver's license or wallet. 

     

    The subsequent inquiry must judge whether the officer acted reasonably. One component of reasonableness is the officer's perception; should s/he have correctly recognized that the object was not a gun. The visibility conditions, especially light levels, usually become a central issue. Investigators often attempt to assess visibility from witness statements such as "It was bright," "I could see three blocks down the street," "There was enough light to read my notebook," etc. 

     

    In reality, these statements reveal little about visibility conditions at the time of the shooting. A realistic assessment requires an in-depth analysis of specific situational factors that determined perception. Roughly speaking, these factors can be divided into two categories, sensory and cognitive. Sensory processing is the initial stage, where light enters the eye and forms an image. When people speak of visibility conditions, they are usually talking about light levels and other factors that affect registration of the image information. 

     

    However, seeing involves much more than an image, and visibility is not the only factor affecting the officer's ability to discriminate between a gun and an innocuous object. The quality of the image and its contents provide only raw sensory information that the viewer must next interpret. This requires use of memory and of other innate cognition processes, most importantly expectation. Whether the officer will see a wallet or a gun depends as much on his knowledge and experiences as it does on the sensory factors. 

     

    Sensory Factors

     

    Inquiries often focus on light levels. They presume that if lighting were sufficient, then the officer should have correctly identified the object. The mistake was then due to negligence or at least improper care.

     

    This logic is flawed because amount of light is only one sensory factor in determining visibility, and it is often a relatively minor one. All things being equal, it is true that people see better in brighter light. But things are seldom equal because many situational factors are more important than overall light levels.

     

    1. People see contrast, not light. In a real sense, people do not see light; instead, they see contrast, the difference in light coming from an object and its background. As the Illuminating Engineering Handbook says, "Contrast detection is the basic task from which all other visual behaviors are derived." Contrast is the property that allows people to detect shapes and contours and ultimately to recognize objects. 

     

    Viewers see most objects in reflected light. A source, such as a lamp, emits light that bounces off a surface and reaches the eye. To see contrast well, the there must usually be a large difference in reflectance, the amount of light that is reflected, off the object and background. A piece of coal is highly visible against a white sheet because the coal reflects very little light while the sheet reflects almost all of the light. Further, the coal against a sheet will be highly visible even in dim light. It is difficult to see in fog even in daylight because the contrast is low. Contrast, not overall light level, is frequently the factor that matters more. 

     

    Witness statements about general lighting conditions are often irrelevant. The only important light is the light that reflects off the object and its background because that is what determines contrast. A witness statement saying that he could read his newspaper or see people walking a block away reveal little about visibility of the object in the suspect's hand. Moreover, both object reflectance and background change with viewpoint, so a witness standing at a different location may not be seeing what the officer saw.

     

    2. The location of the light is often more important than the amount of light. Light location determines whether the contrast will be negative or positive. Negative contrast (also called "silhouette contrast") occurs when image004.gifthere is a dark object on a bright background. Newspapers, for example, are printed in negative contrast. Positive contrast (also called "reverse silhouette contrast") occurs when there is a bright object on a dark background. 

     

    The difference between the light location and the two types of contrast is often critical in determining object recognition. Suppose the suspect is standing in front of a lighted doorway, car headlight or a streetlight. Then the light is behind the suspect, and the officer will see the object in negative contrast. The object in the hand will appear only as a silhouette and its detail will be invisible. Most importantly, objects of similar general shape will be highly confusable. For example, a wallet and a 25 mm automatic pistol have a similar square outline. An officer who sees a suspect's hand emerge from a pocket with an object having a square profile will have difficulty determining whether it is a gun or a wallet. The straight lines and the square edge are the most salient perceptions.

     

    If the light is primarily in front of the suspect, it will strike the object and reflect to the officer's eye. S/he will have a much better chance of seeing the fine details and discriminating one object from another, i.e., a gun from a wallet. The more reflective the object, the better the recognition. If the object in the hand is dark, however, then positive contrast will be minimal regardless of light position.

     

    3. Lighting affects perception of outline shape and detail differently. As light level decreases, visibility decreases much more rapidly for fine detail than for general shape. It can still be possible to clearly discern an outline but difficult to see the specific pieces or components. For an officer who views the object in the suspect's hand, there might well be enough contrast to see the rectangular shape of a gun/wallet, but there may not be enough contrast to see the fine detail that discriminates a gun from a wallet. 

     

    4. Perception of general shape is faster. People mentally process the general shape of an object faster than the fine details. Everyone has had the experience of "recognizing" a familiar person and then starting to wave or say hello, but then realizing that it was actually a stranger with the same general build, hair, etc. This occurs because the visual system transmits information about larger image areas faster from the eye to the brain. Roughly speaking, viewers make initial recognition after seeing the general outline and before the details can catch up. 

     

    An officer who must make a potentially life-and-death decision reacts quickly. He is likely to make a decision based on the visual information that is first perceived, which will always be the general outline and shape. If the light is in front of the suspect then the officer will still see the general shape first may be forced to make a rapid decision before the objects details become visible. If the light is behind the suspect, of course, then the general shape is the only information available to decide whether it is a gun or is a wallet.

     

    5. Motion impairs perception. If an object is moving as you click the shutter on a camera, the resulting image may blur. If the suspect is moving his hand, then the object he is holding will produce a similar effect in the eye. The image is degraded, lowering visibility and impairing recognition. Movement most degrades fine details, the very information needed to distinguish a gun from a wallet. 

     

    6. Light adaptation impairs perception. The eye sees contrast best when it is adapted to the same light level as the current scene. For example, a person walking into a movie theater during the day will at first see little more than blackness. After a few moments, the theater becomes brighter and objects become visible. This occurs because the eye adjusts sensitivity to the prevailing light level through the process of light adaptation. Visibility loss is greater when the difference between adapting level and viewing level is high and when there has been little time to adapt.

     

    An officer's contrast perception will be reduced if s/he has spent time looking at a brighter area prior to the time when the object must be recognized. Even time spent viewing a streetlight or writing on a sheet of white paper (which is highly reflective) could raise adaptation level and impair visibility of subsequently viewed objects.

     

    While these six factors are important in most situations, there are others that may be important in some specific conditions. One is glare from a light source that is far brighter than the ambient level. As any driver knows, for example, a passing car's headlights can lower contrast perception and may also destroy dark adaptation and lower visibility for several minutes. Another is "masking," which occurs when a patterned background lies behind the object. The viewer will have more difficulty seeing the object clearly amid the clutter. Finally, there are a wide variety of other possible factors, weather, age, viewer eyesight and spectacles, etc., that may also be relevant in some situations.

     

    Cognitive Factors

     

    Perception is the processing of applying stored knowledge to the sensory input and forming an interpretation. Once the image is sensed, the officer must decide whether it represents a gun or some other object based on what he knows and what he has learned through experience. When the sensory information is uncertain or ambiguous, as with low visibility, the cognitive factors grow in importance.

     

    This is a problem-solving task that humans address by using innate cognitive strategies. In psychology they are called "heuristics," general rules of thumb, or "biases." The term "bias" is not meant in the negative sense of everyday language. In cognitive psychology, a "bias" is a reasoning strategy that aids in quickly arriving at a correct answer. In critical situations, it is dangerous to engage in the slow process of conscious reasoning. Instead, the human mind has evolved heuristics and biases to speed the interpretation and to make sense of a complex situation.

     

    Here are some of the major cognitive heuristics and biases. It is important to remember that these are innate and "normal," in the sense that virtually all humans rely on them heavily. Further, they operate unconsciously, so that most people are unaware that their interpretations are affected by such operations.

     

    1. Experience creates expectation. People become skilled at their jobs through learning and development of expectation. Beginners act in a "controlled" mode, where they must stop and consciously think about every decision. Their performance is slow and inefficient and usually errorful. With learning, people switch to a fast and "automatic" mode where responses seem to occur without conscious thought or decision. Part of the shift occurs because the skilled person learns what to expect, and can act without the need for conscious decision-making, such as recognizing objects. 

     

    While it is often said, "see is believing," it is equally true that "believing is seeing." Officers who have previously been in situations where a suspect was armed, for example, have more reason to believe that future suspects will be armed and are far more likely to expect to see a gun. However, the experience need not be firsthand. If the station house talk dwells in instances of suspects with weapons, officers shot by suspects, etc., this can also sway expectation in favor of interpreting indistinct objects as guns.

     

    2. The "availability heuristic" primes perception. People must use information stored in memory to make decisions. In a critical situation, they will most likely use the first information that comes to mind. One factor that causes quick recall is that the information was recently acquired. In general, the most recently learned information is what most readily comes to mind, i.e. is most available in memory. Recently read or heard information is the most available and is likely to have the strongest influence on decision-making and on interpretation of low visibility objects. 

     

    For an officer going out on patrol, the most available information may originate in the pre-patrol briefing. For example, the officers may be reminded to keep an eye out for a dangerous suspect of a specific description or that there have been reports of violent crimes in a specific area. When the officer later must make a split-second decision, s/he draws on memory in order interpret the ambiguous visual information. S/he is especially likely to perceive a gun if the suspect fits the general description of the dangerous suspect or is located in the area where violent crimes occur.

     

    3. "Confirmation Bias" strengthens preconceived beliefs. Confirmation bias refers to the tendency to seek information that supports an already held belief and to avoid or dismiss evidence that contradicts it. It is perhaps the most powerful cognitive bias, and has been found to be a source of error and accident across a wide spectrum of human activities. 

     

    If an officer believes that a person is likely to be a suspect (he matches a description, is located in a high crime area, acting strangely, etc.) s/he will likely form an opinion that the person is potentially dangerous. Once this belief takes hold, the officer will look for evidence to support the belief and ignore, avoid, or rationalize evidence that contradicts it. When the person appears with an object in his hand, it will be interpreted as a gun. This conclusion confirms the initial belief that the suspect is dangerous.

     

    4. Payoffs affect decision-making. A person who must decide under uncertain conditions, such as low visibility, faces the quandary that is depicted schematically in the Table I. S/he must decide whether a "signal" is SDT.gifpresent or whether there is only "noise." (The terms "signal" and "noise" arose from the "Signal Detection Theory," a mathematical analysis originally used as a model of radar operators - how did they decide whether there was an enemy plane on the screen or merely background noise.) For an officer who sees the object in the viewer's hand, the "signal" is a gun and the noise is an innocuous object.

     

    The situation can produce one of four possible outcomes. The officer viewer will be correct if he says "yes" when the signal is there and it really is ("hit") or says "no" and it really isn't ("correct rejection.") There are also two kinds of errors. The officer can say "yes" when there is no gun ("false alarm") or "no" when there is a gun ("miss.")

     

    The officer must consider the payoff consequences of each response. If s/he makes a correct "yes response" he may save his own life while a correct "no" leaves the situation as status quo. Of course, the officer will attempt to be correct, but, since the situation is uncertain, s/he must also consider the consequences of an error. There are two types of error possible. If s/he makes a false alarm (says gun when there is no gun), the officer shoots an unarmed and possibly innocent suspect and may face legal problems, etc. If s/he makes a miss (does not shoot when there is a gun), s/he, a fellow officer or bystander may end up wounded or even dead.

     

    The officers have no objective way to assign objective values to the outcomes of the "yes" and "no" responses. Is it worse to shoot an unarmed suspect than to have a fellow officer shot? Is there any worse outcome than being shot and killed? If expectation, availability and confirmation effects are operating, then the sum of the mental processing is likely to weigh toward seeing the object as a gun.

     

    Conclusion

     

    Hindsight, as they say, has 20-20 vision. After the outcome of an event is already known, it is difficult to put oneself in the place of the people who must decide on action before the event when there is uncertainty due to poor visibility. The officer confronting a suspect at night has a difficult decision because he does not have the luxury that subsequent investigators have of knowing with certainty whether or not the object is a gun. Instead, s/he must act based on uncertain visual information. To resolve the uncertainty, the officer will draw on the innate cognitive processes that all humans have evolved to help us make quick decision under stress. These heuristics and biases function automatically because there is no time for conscious decision making. There is only time to react.

     

    The reasonableness of action cannot be assessed by generalities about lighting conditions or post hoc analysis based on what is known now, after the event, rather than what was then, before the event. Proper analysis requires a detailed reconstruction of the visual factors described above and an assessment of the cognitive process operating at the time. The task of reconstructing the past can be difficult and investigators are prone to their own set of cognitive biases, as I describe elsewhere2. Ultimately, the reasonableness of any behavior can only be understood by the physical constraints of the situation and by the likely operation normal human cognition. 

     

    When a police shooting occur, inquiries frequently draw on an expert in police procedures, etc. However, a scientific and human factors analysis of the situation may be more revealing, more objective and more informative. When a police officer misperceives an object as a gun, it is a perceptual error, not a police error.

     

  3. 9 hours ago, TwiceHorn said:

    While I agree with your sentiment about law enforcement generally, what I see here is a little girl full of bluster and bravado on social media (a job requirement apparently), that, when the rubber hit the road on this occasion, and apparently another, became a panic-ball of ineffectiveness.  Just really incompetent and outright dangerous.  She shot when she shouldn't have and wholly failed to render aid.

    Earlier, I had gotten sucked up in the debate about the reasonableness of her initial mistake.  I think reasonable minds can differ there and that means that you can't really rest a judgment on that.

    But if you set that aside, her actions subsequent to opening the door leave her open to criticism and criminal penalty.

    I'm also and have always been a bit uncomfortable with "castle doctrine" and "stand your ground laws" that essentially give carte blanche to blast someone in your own home without exercising any or much care or caution.

    This is where I'm at. The mistake before, I can excuse as reasonable.

    But the jury may find her use of deadly force not reasonable, and she will not get the benefit of the Castle Doctrine presumption and instruction in self defense law

    4 hours ago, hookem17 said:

    Question for the criminal experts. I thought there had been discussion that this was only a murder case? But then the defense moved for directed verdict on all of the lesser offenses, including negligent homicide. 

    That's their job. Even if no evidence of lesser included offenses. Routinely requested, routinely denied.

    2 hours ago, Gene Parmesan said:

    How do the laws work in situations where you are correctly in your own home and kill a spouse who came home early from a business trip, or some other scenario where there is enough reasonableness to be in fear, but you are ultimately killing a non intruder?

    If the use of force is based on a reasonable belief existing at the time, even if wrong....not guilty.

    • Like 2
  4. 14 minutes ago, Brisketexan said:

    If that's applicable here, that's what we're arguing.  I don't think it's reasonable to enter an apartment that's not yours, that has an apartment number that's not yours, that has a bright red doormat that's not yours, that has a layout with a clearly visible desk and computer that's right in your line of sight and is obviously not yours, that smells of weed that's not yours, with a guy sitting/laying on a couch with the goddamned TV on, and conclude "this is a dangerous intruder in my apartment, and I must kill him at once, even though my training tells me to identify myself and give the suspect a chance to comply."

    As I have written more than once, I do not think the defense of mistake of fact is applicable here. There was a mistake of fact, actually quite a few, and whether it was reasonable or not is the issue as it relates to her use of force.

     

    Just now, 'stache said:

    Yes, that is what it comes down to as far as her defense, and I think it's her burden to convince the jury all of that was reasonable since it's an affirmative defense. But I've learned in this thread that there are apparently hoards of dumbasses walking around who don't know where the fuck they are all the time and walk into other peoples' apartments, so I don't even know what the fuck is going on. I still don't think the rest is reasonable, but this is America, and I'm absolutely certain that at least 1 in 12 people will always find it reasonable to shot a big scary black guy for whatever reason, cause stand or your ground or some shit.

    It's not an affirmative defense.

    The state has to disprove self defense beyond a reasonable doubt.

  5. Here is how mistake of fact works, as I previously wrote a page or two ago

    The mistake of fact has to negate the culpability required by the offense. I gave the example of "intent to permanently deprive the owner of the property when I thought it was mine."

    The mistake of fact (I thought it was mine) negates the required culpability (intent to permanently deprive the owner)

    Here the actor, charged with UUMV, thought he was lent a van by the owner, who was, in fact, not the owner. Trial court erred by not giving the mistake of fact charge.

    643 S.W.2d 737 (1983)

    Carlton LYNCH, Appellant,
    v.
    The STATE of Texas, Appellee.

    No. 467-82.

    Court of Criminal Appeals of Texas, En Banc.

    January 12, 1983.

    Stanley C. Kirk, Houston, for appellant.

    John B. Holmes, Jr., Dist. Atty., and Ray Elvin Speece and J.R. Seeman, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

    Before the court en banc.

     

    738*738 OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

     

    ODOM, Judge.

    Appellant was convicted of unauthorized use of a motor vehicle, V.T.C.A., Penal Code Sec. 31.07. Punishment, enhanced under V.T.C.A., Penal Code Sec. 12.42(d), is life. Appellant's petition to review the Court of Appeals' decision, 635 S.W.2d 172 (1982), was granted so that we could consider whether it was error to refuse appellant's requested charge on the defense of mistake of fact. V.T.C.A., Penal Code Sec. 8.02.

    Appellant testified in his own behalf, telling the jury in substance that an acquaintance had given him the keys to the van in question so he could borrow the van to pick up his motorcycle from a repair shop. The question is whether the defensive evidence raised the issue of mistake of fact, because if it did appellant was entitled to an affirmative submission of the issue. Montgomery v. State, 588 S.W.2d 950; London v. State, 547 S.W.2d 27.

    Sec. 8.02, supra, provides in relevant part:

    "(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense."

    The Court of Appeals overruled the ground of error because the charge on the offense required the jury to find the intent element of the offense. This approach overlooked the rule that entitles a defendant to an affirmative submission of defenses raised by the evidence. See Montgomery and London, supra. The Court of Appeals relied on Musgrave v. State, 608 S.W.2d 184. That case, however, concerned the sufficiency of the evidence to prove the offense of unauthorized use of a motor vehicle. The issue presented here is whether the evidence raised the defense of mistake of fact. Here appellant presented evidence that his use of the van was with the permission of the person who gave him the keys and who was apparently authorized to consent to use of the vehicle. To hold such innocent use is no defense would be to make Sec. 31.07, supra, a strict liability offense. The evidence raised the issue of whether appellant was operating under a mistake of fact. It was error to refuse the requested charge on that defense.

    The judgments of the Court of Appeals and the trial court are reversed and the cause is remanded to the district court.

  6. This is interesting.....

    As I wrote before, I don't think her mistake belief gets her a charge on mistake of fact because it does not negate the culpability required (intend to cause death of individual) for the offense.

    It just goes to the reasonableness of self defense.

    ===

    Here, though, in this capital murder case, knowledge of the victim's status as a police officer negates the culpability for capital murder (knowing victim was acting as a peace officer), and the trial court's refusal to charge the jury on mistake of fact was error  

     

    660 S.W.2d 547 (1983)

    Peter VENEGAS, Appellant,
    v.
    The STATE of Texas, Appellee.

    Nos. 04-81-00219-CR, 04-81-00220-CR.

    Court of Appeals of Texas, San Antonio.

    May 18, 1983.
    Rehearing Denied October 19, 1983.

    548*548 Charles Butts, Butts & Butts, San Antonio, for appellant.

    Bill White, Dist. Atty., Steven Hilbig, Joseph Casseb, Jerry Rosson, Asst. Dist. Attys., San Antonio, for appellee.

    Before CADENA, C.J., and REEVES and TIJERINA, JJ.

     

    OPINION

     

    TIJERINA, Justice.

    These are appeals from convictions for attempted capital murder. By agreement the two cases were consolidated for trial. The jury found appellant guilty in both causes, and the trial court assessed punishment at twenty-five (25) years' confinement in the Texas Department of Corrections.

    The record indicates that at approximately 11:00 a.m. on February 26, 1980, police officers armed with a search warrant arrived at appellant's apartment. The officers testified that they knocked and called out "Police with a search warrant," but hearing no response, they broke down the front door. Appellant testified he was asleep and woke up and saw someone wearing blue jeans and a blue jacket, gun in hand, inside the apartment. There was an exchange of gunfire which resulted in police officer Emilio Cavazos being shot in the right elbow. Appellant, believing he was being robbed, called the police emergency telephone number and asked for assistance. Appellant was told at that time that the people in his apartment were police officers, and he then stopped shooting.

    By his first ground of error appellant contends the trial court erroneously denied his requested jury instruction applying the law of mistake of fact to the facts of the case. Appellant requested an affirmative submission of the law of mistake of fact as follows:

    Defendant requests charge that affirmatively applies his mistaken belief that he was being robbed and/or unlawfully assaulted and that his life was in danger in 549*549 his own home at the hands of the intruders.

    Article 36.14, TEX.CODE CRIM.PROC. ANN. (Vernon Supp.1982-1983) requires that "the judge shall, before the argument begins, deliver to the jury ... a written charge distinctly setting forth the law applicable to the case...." In the instant case, the trial court charged the jury:

    Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant committed the acts alleged, but you further believe, or you have a reasonable doubt thereof, that, at the time of the alleged acts, he had through mistake formed a reasonable belief about a matter of fact, to-wit: that the defendant then and there did not know at the very time of the shooting, if any, that Emilio Cavazos was a peace officer, and that said mistaken belief negated the culpability required for the commission of the offense, as stated in Paragraph 3 of this charge, you will find the defendant not guilty of attempted capital murder.

    An identical charge was submitted regarding Officer Mike Bratton, who was also shot at by appellant during the incident in question.

    The evidence is undisputed that (1) the police officers were not in police uniform, but were wearing casual clothing; (2) they broke down the front door to appellant's apartment and went in with guns in hand; (3) there was an exchange of gunfire; and (4) appellant called the police emergency telephone number asking for assistance and was told by the operator that the men in his apartment were police officers, whereupon he stopped shooting.

    It appears that the trial court properly charged the jury on mistake of fact as applied to capital murder. TEX.PENAL CODE ANN. § 19.03 (Vernon 1974) provides:

    (a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
    (1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman. [Emphasis ours.]

    Appellant is charged, however, with an attempt to commit murder, and the mistake of fact testified to by appellant was that he thought he was being robbed or assaulted. We are guided by Williams v. State, 547 S.W.2d 18, 20 (Tex.Cr.App.1977), where the Court of Criminal Appeals stated: "[A] charge should affirmatively lead and dispel confusion, and because a charge that does not apply the law to the facts fails to give such guidance, error of this character should remain the subject of a per se rule."

    Appellant alleges that the failure of the trial court to grant his requested charge on mistake of fact prevented the jury from finding affirmatively on a defensive issue raised by the evidence. We agree, and conclude that the trial court failed to apply the law to the facts in the court's charge on "mistake of fact." See Lynch v. State,643 S.W.2d 737 (Tex.Cr.App.1983); Beggs v. State, 597 S.W.2d 375 (Tex.Cr.App.1980). Appellant's testimony that he mistakenly believed he was being robbed was sufficient to entitle him to submission of his requested charge. Appellant's ground of error number one is therefore sustained.

  7. 8 minutes ago, Brisketexan said:

    The problem is....that standard is pretty much an ipse dixit standard.  "I thought he was an intruder."  How do we know you thought that?  "Because I did."  What we're learning here is that it's almost impossible to disprove.

    What I see coming out of this is a pretty easy script for killing a member of your family.  Tell your wife you hear a noise in the middle of the night.  You both get up to check, you tell her to go check the front room, you check the back (with your Glock).  And then you shoot her.  Easy story: we both got up to look for an intruder.  In the dark, I mistook her for an intruder.  I feel awful, oh my God, this is terrible.

    And sometime after you're no-billed, you are off fucking your 27 yr old office assistant in Aruba.

    If you are accurately stating the law, then there's a huge fucking gap that needs to be closed.  Failure to reasonably ascertain whether the person you are shooting is a proper target (instead of someone against whom you should act in self-defense) should be manslaughter.

    But who are we kidding....she's a cop, and even if that was the law, it was never going to apply to her. She got special treatment from the instant she called 911, and the chances that the evidence and various scenes (e.g., her apartment, e.g., all the texts and snapchats among the cops) weren't tampered with is zero.  She was never going to be convicted of anything.  This is a show trial, nothing more.

    Brisket, if it were so easy, we'd all be banging 10s in Aruba.

    But instead, there's a lot of dudes over in the divorce thread.

  8. 51 minutes ago, Brisketexan said:

    Man, I gotta tell you.... I just don't get this.  And I say that from a standpoint of logic and as a lifelong gun owner and shooter.

    It's reckless to INTENTIONALLY pull the trigger without REASONABLY ascertaining your target.  As a shooter for over 40 years, I know that I have a duty to determine what lies beyond my target.  I have a duty to look where I'm shooting.  So, if I swing on a deer, and do not ascertain what lies beyond my new line of fire, and INTENTIONALLY pull the trigger, sending a bullet downrange into the neighboring property's playscape, killing a kid on the slide, we all know that I face criminal liability for my RECKLESS or NEGLIGENT conduct.

    If I think the neighbor's kid rustling through the brush is a deer, and INTENTIONALLY pull the trigger (that is, I'm aiming at the kid, thinking he's something other than he is -- a deer), same liability.

    But if I think the neighbor's kid is an intruder, and do not reasonably ascertain that fact, and INTENTIONALLY pull the trigger.....I get off completely.  You can see how this makes no sense.  The act is not just the final culmination of pulling the trigger.  The act is the collective sequence of 1) evaluating the target, 2) deciding to fire, and 3) pulling the trigger, thus completing the act.  If I was reckless/negligent in step 1), then it's perverse and illogical that my intentional act in step 3) would negate all criminal culpability.

    Did you INTENTIONALLY cause the death (NOT PULL THE TRIGGER) of the individual on each case?

    INTENTIONALLY means "conscious objective or desire."

    Did you intend to cause the death of the kid in each of the above scenarios? NO

    Did Amber Guyger intend to cause the death of Bothan Jean? YES

    Did you intend to cause the death of the neighbor kid under the misapprehension that he was an intruder? YES. Was it justified under Ch. 9 of the Penal Code? IT DEPENDS ON THE EVIDENCE. You "don't get off completely" as you say. 

    How do we show intent? by the facts and circumstances. Intentionally pulling the trigger of a firearm could show intent. Drawing from a holster. Pointing a gun at someone. Shooting twice. Words that are used. But intentional acts are not always dispositive.

    What if I am cleaning my Glock and I pull the trigger intentionally, thinking it is unloaded, so I can disassemble it (exactly what you have to do to disassemble a Glock) and it is not in fact unloaded and the bullet goes thru the wall and kills a bystander. While I intentionally pulled the trigger, I did not intend to cause the death of the individual. But I may have been reckless or criminally negligent in doing so.

    • Like 1
  9. 30 minutes ago, TXSooner518 said:

    To wit, entering another person's residence and discharging a firearm immediately without ascertaining the nature of the target.

    To wit, texting your fuckbuddy instead of providing CPR in accordance with your training.

    Also, interested in how 6.02 and 21.15 would interact. I also disagree that intentionally discharging a firearm can never be reckless. I think this is an example of a possible situation. You rely on self-defense, but that reliance isn't reasonable given all factors. You had a good faith, but unreasonable, belief that you had the cover of self-defense. It seems perfectly within the language of the statute for that conduct to be "recklessly causing the death of an individual." 

    Another example, gun located on a movie set. I assume but do not verify that it is loaded with blanks, aim at a person and intentionally pull the trigger. Instead, real bullets, and they die. My act was intentional, yet the circumstances can make my action reckless.

    That's intentional.

    Unless you didn't mean to pull the trigger.

    What you did after is irrelevant.

    Movie set: did you intend to cause the death of the other? NO

    Did Amber Guyger? YES

    I'm done here.

  10. 1 hour ago, TXSooner518 said:

    What about someone not charged with murder at all, solely charged with and convicted of manslaughter, overturned on appeal because the defendant shows the act was intentional, not reckless?

    Or is there caselaw that indicates the overall circumstances can't be considered in the mental state? The definition of manslaughter is recklessly taking the life of another. That seems to fit pretty well, all things considered. In other words, the fact that she took this intentional act, was reckless?

    Also, I'm hung up here, maybe help me see where I'm wrong:

    Say the state did not charge with murder, only manslaughter. Evidence is as it is. Under 6.02, there's no way she gets a directed verdict of acquittal, right? Evidence on all elements of the offense. Under 6.02, her conviction of manslaughter would hold up, as the state established all elements. Agree/disagree?

    If this is true, I fail to see how including manslaughter as a lesser included can possibly be error. And I can't see how the above is possibly not true.

     

     

    It would be a not guilty, because the specific reckless or negligent act need be ALLEGED in the indictment and PROVEN IN COURT, if not, not guilty. There is no negligent or reckless act in intentionally discharging a firearm.

    Art. 21.15. MUST ALLEGE ACTS OF RECKLESSNESS OR CRIMINAL NEGLIGENCE. Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.

    A manslaughter indictment would read"...recklessly causing the death of an individual, to wit: by cleaning a firearm that was loaded in a room full of schoolchildren, and by causing said firearm to discharge, striking VICTIM and causing VICTIM's death" or something like that 

    the recklessness has to go to a specific act of the discharge of the firearm, not going to the wrong apartment, and with no proof of the allegation, it is an acquittal....an incidentally, a double jeopardy bar to the greater offense of murder. 

    The state would really be fucking itself trying a case in this manner

  11. 56 minutes ago, TXSooner518 said:

    I guess I'm still missing it. You're saying the CCA is affirming murder convictions by saying no evidence that the shooting is unintentional. Sure! Any case law of CCA overruling a manslaughter conviction by saying "nope it was intentional, not reckless"? 

    Under Texas law, proof of intent = proof of reckless. The elements of manslaughter are prima facie met under the Penal Code. So unless there is case law of a manslaughter or CNH conviction overturned because the act was intentional not reckless, I'm still missing it.

    EDIT: I'm not saying failing to give lesser included would invalidate a murder conviction, but I also don't see how a manslaughter conviction could be overturned as a matter of law. 

    Proof of the greater Culpable mental state is proof of the letter. But that doesn’t mean you get a jury charge when there is no evidence to support the chart. There has to be some evidence.

    The reason you don’t see the caselaw that you speak of is because that would necessarily involve an acquittal for the greater offense, murder, which The state cannot appeal by statute. And obviously a defendant wouldn’t appeal a murder acquittal where he was convicted of a lesser offense unless there was no evidence of that lesser offense as well. And that issue wouldn’t be in the appeal

  12. 21 minutes ago, TXSooner518 said:

    I'm not seeing why manslaughter or CNH can't be submitted if all elements are present and proof offered. Isn't that the entire point of lesser included? Why would 6.02(e) even exist if they couldn't use it in this way?

    If the firing of the pistol is an intentional or knowing act, and there is no evidence that she did not intend to fire the pistol, then there can be no charge for criminally negligent homicide or manslaughter.

    When I say firing of the pistol. I mean applying pressure to the trigger with your finger in an intentional manner, not an unintentional manner, nor am I talking about pulling the trigger and being wrong about the circumstances that led you to pull the trigger. 

    There are mountains of case law on this issue. Imagine how many times a murderer wants a charge of manslaughter or criminally negligent homicide by saying I didn’t mean to do it the gun just went off and the Court of Appeals affirming a conviction by saying there’s no evidence that the shooting was unintentional. There has to be some evidence, even if weak,, contradicted,  not credible, to support submitting the charge to the jury That the act was not intentional or knowing

    In this case she shot at him twice hitting him once in the chest, clearly an intentional act unless she’s going to testify that she just had her finger on the trigger and she did not intend to pull the trigger......TWICE

    • Like 2
×
×
  • Create New...