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Posts posted by 4th and 5
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20 hours ago, Spaulding Smails said:
This is what I was expecting. Â I would've been fine throwing him $300-$400. Â Heck, if anything, he got to ride out the storm drinking a Coke in the garage with his boat safely moored at the dock as opposed to getting his ass whipped by the wind and rain during the 30 min ride back to the boat ramp. Â
The guide we usually use was booked this weekend, so we got this guy on a referral instead.  Said he's been guiding in Rockport for 20+ years.  Is what it is, but I thought it was bush league.  He even balked when we asked him to leave the croaker so we could fish under the lights that night. Â
Post the name. That’s bullshit.Â
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2 hours ago, BurntEyes said:
First I noted entering the residents illegally or against the owners will which you have changed to with out consent.
Pretty big difference.
Since you've now described what I wrote as jibberish, I'm done engaging with you as you have no interest in discussion and are really just trolling.
Illegally is without their consent you dipshit. See the criminal trespass statute. Or burglary statute. Then go away.Â
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6 hours ago, TwiceHorn said:
It's strange. Self-defense is often called a "justification," but particularly when the defendant is mistaken about the threat posed by the victim, it operates to mitigate the state of mind.
All of this is really an interesting mental exercise in states of mind and intentionality.
Also note that the statute just says "culpability," rather than "culpable mental state."Â The two are used semi-interchangeably in the Penal Code (see 6.02), but an argument could be made, I think, that "kind of culpability," means something different than "culpable mental state."
I think the mistake of fact is encompassed in the "reasonable belief" requirement. A person has the right to use self defense from dangers real and apparent, based on the the Penal Code definition. The belief does not have to be correct, just reasonable, based on facts known at the time, not after Burnt Eyes shits all over it with his Monday morning tacticool quarterbacking.Â
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"Reasonable belief" means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.
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4 hours ago, BurntEyes said:
First, in your example he won't have accessed the owns property illegally and against their wishes if in fact what you described is what was actually occurring.
Next, leathal force is not justified in that instance in any case I can contemplate.
If you ran up and shot him while he was "beating" on his wife you're probably facing a charge. Probably a civil suit from the wife who is going to be the prosecutors lead witness. Because, "He wasn't hurting me. He loves me and was just upset."
Having said that, if you approach you better assess the situation prior to acting.
Perhaps your neighbors are some freaky BDSM exibitionist. You approach hell, you might be asked if you want to join, slave.
Next, you start using lethal force via firearm when 2 people are in a fisticuffs unless you are well trained and a very excellent shot your probably going to also hit the victim.
If you ARE very well trained you know you don't have legal authority to take that shot, and shouldn't given the circumstances even it you did.
All of this, of course, doesn't apply to police because they get to shoot whoever when ever.
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In my example the shooter has no consent from either party.
Let's say he is beating the fuck out of her. How about the ever living shit out of her? Is that good enough? Let's say he is kicking her in the head with steel toe boots. Stepping on her neck. Are we there yet? Can you contemplate deadly force yet?
The rest of that gibberish I'll just ignore.
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I’m not making a comparison.
My post indicates that’s how the mistake of fact defense usually works.
And how it may not work that way in this case
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Here is the statute on mistake of fact in Ch 8 of the Penal code
Sec. 8.02. MISTAKE OF FACT. (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.
(b) Although an actor's mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.
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The highlighted part may give her trouble. An example of how the defense works would be in a theft case for an umbrella on a rainy day. I grabbed the umbrella thinking it was mine when it was not, it just looked like mine. Due to a mistake of fact as to the beleif of the ownership of the umbrella, it negates the kind of culpability required for the commission of the offense, specifically, the intent to permanently deprive the owner of the property.Â
It this case we have a mistake of fact as to the rightful possession of the apartment. Â Does that negate the culpability required for the offense? I question wether it does.
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On 5/4/2019 at 9:45 AM, BurntEyes said:
Under no legal conditions are you allowed to shoot a stranger in their own home after obtaining access against that person's wishes or illegally. (No-knock warrants aside) Whether you think you have that legal authority or not.
The fact that she believed she had that authority, calls into question a lot more about her than it does create a defense of her. I've already clearly pointed out why.
The preshooting witness description of what occurred further call it into question. Those are of course always suspect but there they are.
The way in which she gain entrance to the location is suspect, if she did in fact gain entrance to the apartment. Which based on what I've read neither is clear.
I still want YOU to answer the question of why you picked this specific example to start your non-stop defense.
Â
That’s may be substantially true but not necessarily always true.
How about this hypothetical.  I am your neighbor walking past your house. I see you in your garage beating the crap out of your wife. I come to her defense. Entry without consent, use of force justified.Â
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On 5/4/2019 at 10:28 AM, TwiceHorn said:Dude. I'm not defending her. I have not once said she SHOULD be acquitted. I have said she might be, though. I remain unsure what sort of sentence is appropriate if she is convicted.
Saying that the incident is an accident because (subject to proof of course) she did not intentionally walk into an innocent man's home and kill him, is not a defense. It is a neutral evaluation of what happened.
For the 40th time, I'm trying to distill a sort of general case for this crime, which is hard to do because it's so unusual. Unless and until it is proven that she did intentionally enter a mans home and shoot him to death, this isn't a "straight-up murder." It is certainly murder by the statute.
The central fact is that she made a rotten, no-good, horrible decision to shoot the guy. But in certain circumstances under our law, that is absolutely permitted. And she may be able to claim the benefit of that law. I freely admit that from a technical perspective, the defense and tactics here are fascinating, but don't equate that fascination with desire that she be acquitted.
This case lies in a twilight zone between straight-up murder and straight-up self-defense. In a zone between 5-99 and 0/acquittal. To treat it as one or the other on that spectrum is foolhardy, but that's just like my opinion, man. I'm trying to figure out, for sentencing purposes mostly, where on the spectrum the general crime here lies. I'm not satisfied with either of the poles.
I'm not speculating wildly on what facts may later be proven that tilt the thing to one end of the spectrum or the other. You have your biases, they are obvious, and I don't disagree with them. I certainly condemn wild shooting, and would do so if she had done this in her own home had the roles been reversed. I'm very much against shoot-first cops. Hell, I'm on record for disarming them entirely. But I'm not indulging the biases for purposes of trying to look at this neutrally. You are so biased that you see my trying-to-be-neutral analysis as a defense.
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Well said. I’m not defending her. She fucked up. My posts are designed to inform how her lawyers will defend her. And to demonstrate maybe we should rely on facts to form ultimate opinions.Â
On 5/4/2019 at 11:07 AM, TwiceHorn said:Question for 4th and 5. What would the jury charge look like if she gets the mistake of fact and self-defense questions? A big recital of the law/Penal Code in the instructions and three questions (murder, mistake of fact, self defense)?
Yes. The typical jury instructions, culpable mental states, homicide, self defense, the presumption and instruction if she gets them, definitions of reasonable beleif, deadly force, etc., and mistake of fact if she gets the defense which I am not sure she will, I have to research if the mistake of fact as to her apartment would get her the charge.Â
On 5/4/2019 at 11:31 AM, TwiceHorn said:Also, would there be a pretrial hearing on the self-defense issues? Or would that all happen at trial?
At trial. It is a jury issue.Â
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5 hours ago, BurntEyes said:
She shot twice hitting him once.
She still fired her weapon twice.
You're getting pretty fucking trolly.
https://www.documentcloud.org/documents/4853308-Amber-Guyger-Search-Warrant.html
Â
Welcome To last September. Two shots, one hit.
You were wrong.
Own it.Â
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2 hours ago, BurntEyes said:
Nope...
On September 6, a white Dallas police officer shot and killed her black neighbor inside his own Dallas apartment, reigniting, once again, the debate around police racism and brutality in the U.S. In the police affidavit, which is based almost entirely off the cop’s account, 30-year-old Amber Guyger claims that she mistook 26-year-old Botham Jean’s apartment for her own and thought Jean was an intruder, leading her to shoot him twice.Â
wrong again
ASSUMPTION ALERT: media reports are not always correct
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https://www.documentcloud.org/documents/4853150-Amber-Guyger-arrest-affidavit.html?sidebar=false
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23 minutes ago, TwiceHorn said:
Agreed on the numbers. They are also out of your field of view when standing in front of the door. The floormat is hard to reconcile.
Did she look down?
She was carrying a backpack, lunch bag and ballistic vest. Was she distracted?
There is so much to this in the science of forensic vision, perception, attention, expectation, human response and reaction time.
What color is your doormat at your home?
Which doors have doormats?
Do doormats contain useful information?
If you knew your feet were wet or dirty would you be more likely to notice one?
Which lights did you stop at on the way to work? And what lights were green?
Have you ever not noticed someone you knew well, because you did not expect to see them where you were at the time?
Do you look for deer when you drive through a school zone? Do you scan for little children pedestrians at dusk on Ranch Road XX? What would you expect to see?
If the city put a stop sign on a roadway where there was no intersection, would it be more likely not to be noticed?
What happens when you are in a well lit area and walk in to a dark area?Â
20 minutes ago, BurntEyes said:TWICE
ONCE
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5 minutes ago, TXSooner518 said:
Yes, 9.32 sorry.
And sorry, those don't rise to reasonable fear for your life. If my kid comes up behind me tonight and yells BOO I can't kill her in self-defense.
That's a jury question based on the facts. I don't see a similarity in this case and your daughter yelling boo. Or my hypotheticals above.
But you could kill her in self defense under that circumstance, if a jury finds the state failed to disprove BARD the defense. Would they? I think we all doubt it.
How about your kid sneaking into his bedroom window, hours after he snuck out after midnight?
How about your wife killing you, when you came home late after a delayed flight, when she expected you home the following day?
How about if your kid pranks you, and you kill him, thinking it is an intruder.
If a jury buys it, that's what happened. It's justified.
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28 minutes ago, TwiceHorn said:On the sentence, parole eligibility at 50% time served. Eligibility =/= release, but I might guess that she's probably going to get favorable treatment, so it might.
She's looking at 80%+, practically speaking.
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43 minutes ago, Pato del Muerto said:Can they combine mistake of fact and self defense? Â She thought it was her place and therefore thought she had the right to shoot? Â
Quick research indicates yes. I thought I read a case that said no recently.
However I got a necessity defense jury instruction along with defense of self, defense of another, and defense of property in a trial not long ago.
2005 CCA case below cited as recently as 2017 so I assume it is good law still.
Note 2 CCA judges dissented saying the specific controls the general and they would not allow another defense, in this case necessity, and by analogy could also apply to mistake of fact in the Dallas case. Who knows what the court would rule if presented with the issue again. But if I was the trial attorney I'd be trying to get every defense I can because the refusal to give the instruction when requested and supported by some evidence is reversible error on appeal every time.
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162 S.W.3d 226 (2005) Lydia H. BOWEN, Appellant,
v.
The STATE of Texas.No. PD-1873-03. Court of Criminal Appeals of Texas.
May 4, 2005. Samuel C. Bishop, Decatur, for Appellant.
Gregory P. Lowery, County Atty., Thomas J. Aaberg, Asst. County Atty., Decatur, Matthew Paul, State's Atty., Austin, for State.
Â
OPINION
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KEASLER, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, and HOLCOMB, JJ., joined.
Upon the close of evidence at her resisting arrest trial, Lydia Bowen sought a jury instruction on the defense of necessity. The trial judge refused this request. Affirming the trial judge's refusal, the Court of Appeals held that the self-defense statute, Penal Code section 9.31, demonstrated a legislative purpose to exclude the necessity defense under section 9.22(3). We disagree. Therefore, we reverse and remand.
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28 minutes ago, TwiceHorn said:Yet it is ambiguous. I think we decided a while back that manslaughter charges would risk a straight up acquittal because the shooting was not reckless. Other things made the situation reckless or negligent, but the shooting itself was an intentional act. So, like I said, you can't get "middle ground" by the indictment, It has to be on the sentence.
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There is a bit of a paradox in murder law in Texas, among other places. And that is that the conduct has to be intentional, but the result (death) and the target of the conduct do not have to be intentional. At common law, both the conduct and the result (and the target of the result) all had to be intentional for it to be murder. So you had to intend to kill a specific person, by specific conduct. Anything less was some form of manslaughter,. That is not the law in Texas.
So overall, you can have a situation where death of an innocent person is a mistake or accident, and it's still murder if the conduct you engaged in was intentional.
What he wrote.
How the heck can you assert self defense as a justification to an of allegation of reckless or criminally negligent conduct?
You can’t.
And as to paragraph 2, I believe the transferred intent rule was part of the common law, and your statement would be incorrect. Prolly depends on “when” in the “common law” we are talking about.Â
27 minutes ago, Brisketexan said:Ha -- TRICK QUESTION! By the time I get back to my room, I'm shitfaced and just heading for the bathroom to take an urgent leak. I wouldn't even notice if someone else was in the room.
Think you can trick me - no sir, I ain't falling for it!
Goddamnit brisket, take the bait!
23 minutes ago, TXSooner518 said:Eh. If she didn't enter the apartment, I can't fathom a way that deadly force can be authorized. How can she reasonably be in fear of her life from an unarmed man being in a dwelling that she isn't in? If she did enter the apartment, PC 9.23(d) seems to me to indicate that a person with no legal right to be where they are can't avail themselves of deadly force if they can retreat.Â
You have the practice experience, and what the jury is told is more important than what the law says, so I concede to that. But, I just don't find a way to check the boxes to make deadly force reasonable in this scenario, based on the combination of her needing to have a reasonable fear for her life (or SBI blah blah) and her not having 9.23(d) in her favor re: need to retreat.
9.32 is what I think you are referring to.....go back and read my post. She doesn’t get the jury instruction. It’s a fact issue in the calculation of reasonableness. Not a prohibition.Â
23 minutes ago, Pam Cummings said:What we know about the lighting is that there was enough for her to identify that there was a person in the room and shoot them.Â
Exactly, and nothing more.Â
21 minutes ago, TXSooner518 said:And if the light was so bad that she can't even distinguish the race of the person, what exactly did she see that created a reasonable fear for her life? Again, can't have it both ways.
Sure you can.Â
Go do the experiment brisket is too drunk to do. Have a pistol in your hand. Maybe make a fake pistol with your fingers. Or just make some “furtive” movements. Be scary!
or maybe just be startled while you are jacking off to porn hub videos and eating Cheetos on the couch, quickly get up from where you are sitting and yell “HEY” or “Fuck” and grab a phone off a table to call 911....BOOM
I could do this all day.....
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15 minutes ago, TwiceHorn said:An aside, if they raise MJ as part of the defense, it looks like they're going to have to have her testify that she saw it there on the coffee table. Which would open her up to questioning about how well she saw the coffee table and furniture and why she didn't recognize it as not her own.
 It getting raised. It isn’t no defense, not relevant. Proves nothing.Â
10 minutes ago, PilotsError said:With the right jury, she wouldn't had to see the MJ, the defense will just tell this particular jury that he had ILLEGAL NARCOTICS in his possession, and most likely had ILLEGAL NARCOTICS in his system. Had he not of had ILLEGAL NARCOTICS coursing like the Germans through his veins, he might have obeyed her LAWFUL COMMANDS and still be alive today. Â
This sounds like the arguments prosecutors generally try to make. And fail.
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39 minutes ago, bernorange said:
As long as she has the thin blue line at her back, she's going to feel safe acting out the fantasies she's posted to social media and worn on her clothing, IMO. It's the thin blue line that protects her (and her peers) from consequences.Â
I posted my thoughts above while giving her the benefit of the doubt on the facts regarding the circumstances.   The shooting didn't have to be premeditated to lead to the conclusion I drew. Assume she fucked up without malevolent intent. It was still murder. The thin blue line worked hard to protect her. She's convicted, but walks with no jail time. Lesson learned. The thin blue line can save you from a slam dunk murder case.
Based upon what I saw of her social media history and wardrobe, I would say yes, she would not have hesitated (assuming that her version of the story is honest/correct).
If convicted of murder she “cannot walk with no jail time.”
Not probation eligible.
5-99 or life, to do.
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36 minutes ago, TwiceHorn said:
Now that is a reasonable point. Not sure I agree, but makes some sense. I think the facts are so weird and so unlikely to ever occur again, that one would be foolish to say "this gives me carte blanche to go around wasting people." And I think that probably goes more with an acquittal than by the sentence.
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People don’t understand this case isn’t going to be waved around in court in future self defense murder trials like “Judge, in the case of State v. Guyger she got away with it, and my client should too, motion to dismiss your honor!!!” It doesn’t work that way. Every case will be tried to a jury on its facts.Â
in an acquittal, there would be no percent to even cite. There is no case to the court of appeals.
33 minutes ago, Huckleberry said:Let's be generous and give a standard police officer a 25% hit rate. Guyger claims she was so exhausted she couldn't tell she was in the wrong apartment, so I'm going to go ahead and unilaterally knock that down to an expected 12.5% hit rate. With a 12.5% expected hit rate, we would expect:
0 of 2: 76.6% of the time
1 of 2: 21.9% of the time
2 of 2: 1.6% of the timePardon the rounding. So while it was still a joke it's also a perfectly valid argument. Compare this to a not actually tired and was really just a dumbass standard 25% hit rate:
0 of 2: 56.3% of the time
1 of 2: 37.5% of the time
2 of 2: 6.3% of the timeI mean if we're going to get pedantic let's really do this shit.
More assumptions. There are three possible events here. 0, 1 and 2.Â
If it is 0 the event does not occur. Hence two possible outcomes to discuss.
Whatever the average number is, it doesn’t bear on this 50/50 case. She could have missed her next 10 shots, made them all or in any combination.Â
What is a statistical analysis of the craps table odds is not valid for two rolls of the dice.
31 minutes ago, JimmyHoffa said:Â
But we can assume if she would have shot a third time she probably would have missed. Did I do the math right?Â
It depends on the circumstances then existing in this case at the time she could have fired shot #3, unless you are just making uneducated guesses based solely on years on data not specific to this case.
I’ve had clients shot at better than 50 by cops and civilians
I’ve had clients use deadly force in 3 cases that shot better than 50%. One killed two and injured a third while getting shot at! No professional training. Each case stands on its own.Â
27 minutes ago, Brisketexan said:To be clear, we are ALL discussing a case based on assumptions. Educated and realistic assumptions should be our goal, but it goes without saying that we don't have all the facts at this point. That said.....
My educated assumption is that she indeed did identify her target as a big black man.
And yes, the bottom-line above is very likely the psychology -- the state of mind -- behind the choices she made here.
Not one person has answered my question, which I find puzzling. If she had opened that door and seen geeky white guy instead of scary black guy, would she have been so quick on the draw and the trigger?
That sort of thinking WILL be in the mind of some jurors. That's a big reason why we have a jury system -- they aren't computers, but rather they draw on their own experiences and understanding of people. Note that in this case, that could be good or bad for the defense. Because SOME of us see my question, and think "of course she wouldn't have shot a white guy in a split second." Others (old Fox News watchers, for example) will think "if I opened my door and saw that thug, darn right I'd protect myself." RACE MATTERS. We are lying to ourselves if we pretend it doesn't.
Agree on the point about the acquittal vs. sentence. Based on my assumptions and expectations, I don't think that she should rot in prison for eternity. She should do time, but she shouldn't be there forever.
But I disagree about the message an acquittal sends. The message it sends is that the judgement of a uniformed cop is, essentially, infallible, and can never be the basis for criminal liability. All a cop has to do is say "I was scared," and any and all killing they do after that is free and clear. Seriously, I just typed hyperbole, but that hyperbole is frighteningly close to the truth. The burden of proof to convict a cop of unlawful killing is so obscenely high that if it applied to the rest of society, the murder conviction percentage rate would be in the single digits.
Brisket your assumption has no basis in fact YET and is therefore not “educated.”
You might be right. You might not.
i understand you are busy and you don’t have time to read a treatise on visibility, perception and reaction times. But if you were aware, I think you would be at least more open minded about what happened. But your narrative has been what is is since September, it is too late to backtrack now.
And to be clear, I am open to accepting your opinions, and agree that they have merit, IF PROVEN SHE KNEW HIS RACE PRIOR TO DISCHARGING HER FIREARM.
Do me a favor. You travel some for work right? Dark out your hotel room completely at night. Allow a small amount of ambient light from city lights thru the curtains opposite the entrance. You stand by the entrance and have someone else stand across the room in front of the curtains.
Tell me what you see.
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23 minutes ago, TXSooner518 said:4th and 5 is obv sharp, but is also playing devil's advocate to its maximum capacity. As we have noted, to be able to kill in self-defense, you have to:
1) be reasonably in fear for your life. That's a huge hurdle. What occurred that led her to reasonably fear for her life? A person standing in your apartment does not, in and of itself, constitute reasonable fear for your life.Â
2) To be able to use deadly force instead of retreating, you must be in a place you have a right to be. She was not. So to be able to use deadly force, she must have not had the option to retreat. That also seems extremely unlikely. Much more likely to apply to the person in the dwelling, not the person standing at/near an open doorway to a public hallway.
This parlay, given what we know, is dramatically unlikely, and I would say impossible barring some giant fact that we are not currently aware of.Â
Oh, a solid internet search could give you some ideas.
You don't even have to do that. Just flip the roles. Botham Jean enters the apartment of Amber Guyger, blows her away, then says oh my bad, I thought this was my place. 100.0% murder conviction.
As to point 2, your statement that “to be able to use deadly force, she must not have had the option to retreat” is not accurate.
The law is that the jury MAY CONSIDER whether she failed to retreat in answering the question of whether the force was used when and to the degree it was immediately necessary.Â
She will not benefit from the “no duty to retreat” instruction IF she entered the apartment.
17 minutes ago, Lobo said:Is her story really going to be that the door was just open? The least believable part of this whole thing to me is that a black man in the South would be smoking weed with his door wide open in a building he knows to be full of white people and cops. Â
I'm assuming there were no signs of forced entry, that would have come out already. And obviously the forensics/ballistics people can tell where he was when he got shot. so that leaves two other options I can think of (feel free to post others)---he answered the door when she identified herself as someone he knew in the building and then something about their relationship caused him to drop his guard and go back to the couch while she remained in the doorway/foyer. Or she had a key to his place and left it in there as if it were his spare. Â
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ASSUMPTION ALERT: was he smoking weed at the time? I see the building full of white people and cops?
Of course I am not one to assume but the entry is the most puzzling part of the case.
The tin foil hat stuff lost me there at the end, but you neve know!
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21 minutes ago, Huckleberry said:
Do you have a statistic and evidence to counter that argument? The NYPD determined in a study a while back that their officers hit their intended target less than 30% of the time.
Edited to add - Actually the numbers were usually worse.
http://www.nyc.gov/html/nypd/downloads/pdf/public_information/RAND_FirearmEvaluation.pdf
I am familiar with the data.
There we’re 3 outcomes possible. 0 for 2, 1 for 2 or 2 for 2. She was 1 for 2.Â
The fact that this case specifically doesn’t conform (cannot conform) mathematically to a NYPD average is of no import.
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Is that another one of you jokes?
I can’t tell.
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5 hours ago, Bama Chick said:Did someone really just ask if she was sure the victim was black???
The lighting in the apartment was good enough for her to shoot him twice in the chest without missing so I’m going to assume the lighting was good enough to determine this man was indeed, black.
Also, this is sickening and doesn’t make me feel any more charitable to her like it did for some of y’all.
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She frets about her job NINETEEN TIMES in a six minute call while the man she shot is laying on the floor dying and moaning in agony.
And seriously, stop calling this an accident.
The only accident she made was going in the wrong apartment.
Everything that followed were deliberate choices and decisions she made.
She had a multitude of options available to her -
-pull the gun and order him to stay back
-back out of the apartment and ask who he is
-retreat and run away
-retreat and scream bloody murder to draw attention
Bottom line - she did what a lot of cops do. She saw a black man and assumed the worst and shot first without any attempt to assess the circumstances or attempt to
de-escalate the situation.
She murdered that man. Period.Â
Â
You’re damn right I asked that question. What do YOU KNOW about the lighting in the room? Was there any? If so did it create positive or negative contrast? What was his location? We’re there any obstructions to visibility?
See, I do this for a living. I know the science. I don’t make half cocked assumptions and false conclusions. This case requires a careful study of the law and conclusions based on facts and the applicable sciences that I mentioned in previous posts.
Let me give you another example.
The “FACTS” article you posted is DEMOMSTRABLY FALSE. Your conclusion from it is therefore false. She said 19 times she thought it was her apartment. She did not mention her job 19 times. Did you evaluate the actual evidence yourself? And then draw a conclusion?
Or just assume?
Why was the article false? Because the author is a dumbass who jumps to conclusions? Because they have a narrative they want to further? To get clicks?
Why did you take the bait? Was it because it was easy for you? You work off of base emotions without much reflection? It fit your opinion of the matter?
4 hours ago, PilotsError said:One thing few are mentioning that could acquit her is that she fired twice and hit her intended target twice. No sober, alert, well rested cop could pull that off. It backs up her defense that she was exhausted and in a non alert frame of mind. Only explanation for her pinpoint accuracy.
Assumption.
WRONG.
Shot twice, hit once.Â
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34 minutes ago, Brisketexan said:
Yep. It’s a layer. An undeniable one.
She made a choice. Shoot/don’t shoot wasn’t an accident.
That choice was almost certainly influenced by the race of the victim. Again, imagine if the resident was a white guy. You KNOW the outcome would have been different, but you sure as hell have studiously avoided even touching the question.
His possession of MJ is going to be used by the defense. To show that the victim was even scarier.
The system has a built-in bias against a black man facing a white cop.
Every one of those is a factor.
You discuss this repeatedly as “an accident,” and decry people being out for blood. But you skip over damned near every point I typed above. You’re the one missing every relevant point here.As a lawyer you should be deathly allergic to assumptions
Has it been proven she was aware of his race? Could she determine that based on the nature of the lighting? Was there sufficient lighting? Was there positive or negative contrast created by any available lighting?
Proof of possession of marijuana is not proof of being under the influence at the time. Possession without evidence of recent consumption is routinely excluded in criminal cases. It serves no purpose other than to unduly influence the jury. It is not relevant evidence under TREs or only of such limited relevance as to be subject to exclusion under TRE 403.
If you think the defense is going to play the “he was a big scary black guy with marijuana” card I think you are dead wrong. It is an offensive position to take and I think a jury would greatly resent it.Â
Determine the facts. Argue the facts. A reasonable but mistaken belief. The state has to disprove it beyond a reasonable doubt.
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Interesting how many people here know the facts.
Imma tell you guys something that will stand the test of time. This case won't be won or lost on he was black, had drugs, she was white and a cop, etc.
What will matter is the reasonableness of her belief and factors like similarity or dissimilarity of apartments; if she entered the apartment, and if so, how; lighting; distance between the parties, words or actions by both parties, visibility, perception and reaction timeÂ
I bet the weed is excluded by the trial court as irrelevant. Now a toxicology report showing active THC or other substance in his system might be. I said might. And anything in hers would be for sure.
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dat ass....dat snapperÂ
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I just mount my Stradic on the OG All Star titanium and cast a quarter mile in to the wind. I don’t need to finger it, upgrade the bearings, Boca Orange it, soak it in compressed air, or know what a scratch awl is.
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11 hours ago, Pam Cummings said:
I've literally never seen this before.
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Home owner mistakes a neighbor for an intruder and shoots and kills them, sure.
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But to mistake someone else's home for yours, barge in, and shoot the person who lives there? I've never heard of that.
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Even if it was a legitimate mistake, which i just don't believe at all, the level of stupid required to do such a thing deserves the most severe charges, imo. Get this moron off the street.
You may not have seen it. I have and it is not all that uncommon.
9 hours ago, 'stache said:Those defenses fall apart on the reasonableness standard too. It's not reasonable to (a) "accidentally" enter the wrong apartment, and (b) start blasting your gun before you even see whose inside.Â
Seriously, there's no legalese necessary to understand how badly she fucked up and why she deserves to spend time in jail. The facts are she shot a guy without any "reasonable" reason. Open and shut.
There are a lot of assumptions here. There are many reasons why it may have been reasonable, or not. It will depend on the evidence admitted at trial. Did she even enter the apartment? Could she see? if so, what?
There are so many intricacies to this case it is like a study in culpable mental states, homicide, use of force, vision and perception, reaction time, and so on....
It's fascinating.
7 hours ago, TXSooner518 said:Also, the ability to not retreat before using deadly force in self-defense only applies if you have a right to be where you are. She didn't have a right to be in his apartment, thus must retreat rather than using deadly force if possible. It was possible.
Correct. Also if she enters she is committing a criminal trespass, and would be violating the law, which loses the no duty to retreat jury charge instruction
6 hours ago, Huckleberry said:Any other result should scare the shit out of apartment complexes. Why in the hell would I rent an apartment when a tired person could easily confuse it for their own? Wrong building, wrong floor, etc.
Hell, hotels would immediately have a problem as well.
Bro, I've been so shithoused I was in the wrong fucking tower of the Nugget in Las Vegas trying to get in "my" room. It happens. The apartments in question are as cookie cutter as a hotel room.....Â
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5 hours ago, 'stache said:Occam's razor tells me nobody is stupid enough to enter the wrong apartment. It's just not believable. We haven't seen any evidence of a prior relationship or altercation or any political motivation (my speculation was that it was a hit based on his family's political connections in his home country). Its looking more and more like it was truly random, but that in no way exonerates her. She is guilty of a crime even if the rosiest of circumstances are true.Â
Wrong. That's exactly what happened. Whether it was a reasonable belief will be the issue at trial. And you'd have to know all the facts before drawing a conclusion
5 hours ago, Gene Parmesan said:People are absolutely stupid enough to enter the wrong apartment. That's not even top 1000 of the stupidest things people are capable of.
Yep.
4 hours ago, BurntEyes said:It does happen and a good friend of mine got killed for it.Â
Ironically, he was a liberal who was largely anti-gun and almost hippy like in his non-violence.
That shooter also walked.
Sorry about your friend. It happens more than you would think.
4 hours ago, pops said:Has anyone figured out how she got in? Was his door open? Do they have shitty keys there and hers actually opened his door through some computer glitch? Was it possible his door was unlocked, she swiped her key and the door opened therefore she thought "my place"?
All important issues. Was she fucking with the lock and he heard it and answered? Who knows. Reserve your opinion until you do know.
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4 hours ago, C-Man said:Where have I said I support her (or defendants in DWI death situations for that matter)? Not in the slightest. She fucked up and there's a price to pay, probably prison. What I'm saying is I don't believe she was on the 4th floor that night to shoot Botham Jean dead. It's far more likely she was there because she was drunk or tired and mistakenly got into his apartment -- we don't definitively know -- and killed an innocent man. That said, it doesn't excuse what she did. Should she have backed out and de-escalated before going to the gun? Absofuckinglutely. What I guess I'm saying is this wasn't a straight-up murder or execution. I think it was extremely poor decision making by a substandard cop and resulted in an innocent man's death.
Maybe. I'm sure she wishes she did. What if he answered the door because she was fucking with the lock. He's close. Real close. She knows distance is not her friend here...21 feet and he can get to her before she can draw and fire. She ran high risk warrant apprehensions. Major city, dealing with minorities, and often not in a good way. I'll bet never without backup. Always on alert because of her job. And then she sees a large black male in "her" apartment. What do you think she's going to do?
What if she entered a dark apartment and he walked out of the bedroom and startled her in the entry way?
We don't know the answers to these questions.
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3 hours ago, Beau Vine said:I did it once in the dorms in college. I was hammered. The elevator stopped on the floor below mine. I got off and walked four doors down like I always did, and opened the door. I walked in, and there were three girls sitting on the floor watching TV. They looked at me and squealed, and immediately began ripping my clothes off. I spent the next six hours fulfilling the insatiable, repressed desires of passion that young nubile women have. When I was done, I walked back to the elevator and realized that I was on the 4th floor, not the 5th.Â
(*) Parts of this story have been embellished by the author.
You had me there for a second
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Also I posted this way back when this happened, but she may be able to use the defense of Mistake of Fact. I haven’t looked at Texas caselaw to see if it possible. Usually the specific controls the general, and the use of a Mistake of Fact defense may not be possible. For instance there is a fairly recent case from the CCA that says the D could not get a jury charge based on the defense of Necessity, because the defensive conduct he engaged in, while it may have been a necessity, was provided for specifically by the defense of Self DefenseÂ
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I’ll have to look at this closer but I don’t think she can use defense of property. The law requires her to be in lawful possession of, or unlawfully dispossessed of land or property. She was neither. A reasonable belief that the apartment was hers is irrelevant. It has to actually be her apartment. And if she could not use force under 9.41 she cannot use deadly force under 9.42.Â
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Dallas officer kills man after mistaking apartment for her own, police say
in Daily Texan
Posted
Correct, except by "robbery" (a crime against persons) I'm sure you actually mean burglary (a crime against property) and yes a person can use force, and deadly force, to protect their property.
Check out section (b). She was not, in fact, unlawfully dispossessed. I think I pointed this out a few pages back that this would be a problem at trial. And note it you are not justified under 9.41 (force) you cannot use deadly force under 9.42
Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
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Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
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Now how about this.....what if she had a roommate....who had property in her (real) apartment. Lots of reasonable beliefs give her room for a belief that is not in fact true, and not available in 9.41.
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Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his protection of the land or property;
(B) he has a legal duty to protect the third person's land or property; or
(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.