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4th and 5

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Posts posted by 4th and 5

  1. 10 hours ago, Quagmire said:

    I can’t imagine anything much worse than sitting in prison for something you didn’t do

     

    I can. 

    How about your wife getting killed on your 32nd birthday, you’re wrongfully convicted of her murder by a DA who hid exculpatory evidence, your son thinks you did it and tells you he doesn’t want to see you anymore, and you spend 25 years in prison while the new DA does everything thing he can to fuck over your lawyer’s attempt to prove your innocence, while the real killer goes on to commit multiple felonies, including another murder.

    • Like 3
  2. 6 hours ago, bernorange said:

    So, DMN confirms Jean's body was near the couch.  He did not open the door for her.  IMO, that lends some credibility to her story.  Doesn't justify the shooting of course, but it sounds like a tragedy of unfortunate events rather than something premeditated.

     

    He might have opened the door, and backed away, and then gotten shot. He might have opened the door and gotten shot, staggered back and fell in the living room.

    4 hours ago, gsoda3 said:

    the positioning of the furniture in the living room will be important-  was jean facing her and the tv facing away from her?  if so she should be clearly able to see him and what he was holding.  was the tv facing her?  if so she could say she was blinded by the tv and just saw the silhouette of someone with something in his hand, backlit by the tv.

    As I pointed out a page or two ago, visibility and perception is going to be a key issue for the "reasonable belief" element of her defenses. As to him, his movements, the interior of the apartment, etc.

    • Like 1
  3. https://www.usatoday.com/story/life/music/2018/09/20/suge-knight-agrees-serve-28-years-after-pleading-manslaughter/1373863002/

     

    Knight collapsed during one court hearing, two of his former attorneys were indicted on witness-tampering charges, and his fiancee pleaded no contest to selling video of Knight hitting the two men with his truck.

    His attorney Albert DeBlanc Jr., appointed by the court five months ago, was his 16th, and Knight tried to fire him and get yet another lawyer just a day before the deal was reached. DeBlanc declined comment Thursday.

    While awaiting trial, Knight was also accused of threatening "Straight Outta Compton" director F. Gary Gray.

     

     

  4. Nor have we really discussed defense of property

     

    
     

    SUBCHAPTER D. PROTECTION OF PROPERTY

     

    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.

     

     

    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.

     

  5. Been busy defending the Constitution today, been trying to get around to this section of Chapter 9 of the Penal Code that addresses use of force by peace officers

     

     

    SUBCHAPTER E. LAW ENFORCEMENT

     

     

    Sec. 9.51. ARREST AND SEARCH.

    (a) A peace officer, or a person acting in a peace officer's presence and at his direction, is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest or search, or to prevent or assist in preventing escape after arrest, if:

    (1) the actor reasonably believes the arrest or search is lawful or, if the arrest or search is made under a warrant, he reasonably believes the warrant is valid; and

    (2) before using force, the actor manifests his purpose to arrest or search and identifies himself as a peace officer or as one acting at a peace officer's direction, unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested.

    (b) A person other than a peace officer (or one acting at his direction) is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making a lawful arrest, or to prevent or assist in preventing escape after lawful arrest if, before using force, the actor manifests his purpose to and the reason for the arrest or reasonably believes his purpose and the reason are already known by or cannot reasonably be made known to the person to be arrested.

    (c) A peace officer is justified in using deadly force against another when and to the degree the peace officer reasonably believes the deadly force is immediately necessary to make an arrest, or to prevent escape after arrest, if the use of force would have been justified under Subsection (a) and:

    (1) the actor reasonably believes the conduct for which arrest is authorized included the use or attempted use of deadly force; or

    (2) the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the actor or another if the arrest is delayed.

    (d) A person other than a peace officer acting in a peace officer's presence and at his direction is justified in using deadly force against another when and to the degree the person reasonably believes the deadly force is immediately necessary to make a lawful arrest, or to prevent escape after a lawful arrest, if the use of force would have been justified under Subsection (b) and:

    (1) the actor reasonably believes the felony or offense against the public peace for which arrest is authorized included the use or attempted use of deadly force; or

    (2) the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to another if the arrest is delayed.

    (e) There is no duty to retreat before using deadly force justified by Subsection (c) or (d).

    (f) Nothing in this section relating to the actor's manifestation of purpose or identity shall be construed as conflicting with any other law relating to the issuance, service, and execution of an arrest or search warrant either under the laws of this state or the United States.

    (g) Deadly force may only be used under the circumstances enumerated in Subsections (c) and (d).

  6. 8 minutes ago, TwiceHorn said:

    Cool, thanks, that's what I thought.

    Also, if manslaugther sticks as the biggest charge?  Mistake of fact makes the totality of the action less than reckless?

    
     

    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.

     

    Read what I bold faced.

    The mistake of fact is: "I thought it was my house."

    If the fact were as she believed, that is, it was in fact her house, would she be guilty of any lesser included offense, specifically manslaughter or criminally negligent homicide? 

  7. 2 minutes ago, 0xdeadbeef said:

    Let's assume these facts are correct.  So she was standing in a well lit hallway in front of what she thought was her own apartment,  she somehow opened the door {defective lock, left ajar, doesn't matter}, she saw a stranger 15 feet away and  yelled commands at him.  So far not unreasonable.    How the fuck does she go from there to shooting him?

    Police arrogance is the only answer.   She shot him because she's a cop and he didn't follow her goddamn commands.     

    She should have stepped back, let the door close and called for backup.  It's not like the guy could exit from the back.   She was in no way in clear danger. 

     

     

    Well lighted hallway, looking in to a dark room, eyes not adjusted, maybe no backlighting (negative contrast) either.

    Easy to second guess fight or flight when you have all day to do so.

  8. 36 minutes ago, TwiceHorn said:

    What kind of theory are you guys thinking of for NG?  Or just kind of a nullification theory?

    Intentional act + defense of self defense + defense of property + mistake of fact

    A reasonable belief at the time is what is required, not a correct belief.....it is not judged in hindsight but under the circumstances that the person reasonably believed them to be.

    Below are the elements of deadly force to defend person, color coded, and commented on ..... mistake of fact law is so muddy the more I read the less I understand

    Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON.

    (a) A person is justified in using deadly force against another:

    (1) if the actor would be justified in using force against the other under Section 9.31; and

    (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (SHOT FROM A DISTANCE)

    (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (HE DID NOTHING OTHER THAN OCCUPY WHAT SHE THOUGHT WAS HER DWELLING AND PERHAPS NOT COMPLY WITH HER ORDERS)

    (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. (I SUPPOSE ANY OF THESE ARE POSSIBLE, IS IT REASONABLE TO ASK AN INTRUDER IN YOUR HOME WHAT THEIR SPECIFIC INTENT IS?)

    (b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

    (1) knew or had reason to believe that the person against whom the deadly force was used:

    (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied (BIG PROBLEM) habitation, vehicle, or place of business or employment;

    (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

    (C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

    (2) did not provoke the person against whom the force was used; and

    (3) was not otherwise engaged in criminal activity, (IF ENTRY OF HER ENTIRE BODY INTO THE DWELLING = CRIMINAL TRESPASS) other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

    (c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

    (d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

    • Like 1
  9. 36 minutes ago, Nice Guy Eddie said:

    If you’re actively fleeing from a charge, do the statute of limitations effectively pause until the police actually have the ability to take you into custody? Asking for a friend....

    i would bet even money this guy posts on surly.  Can the admins check logs for Taiwan ips?

    Statute of limitation is tolled while out of the state.

    It's academic though, because there is no limitation on Sexual Assault of a Child......

    Also, not sure of the law, but might be a federal charge of Unlawful Flight to Avoid Prosecution 18 U.S. Code § 1073, amongst the many other state (and federal) charges that could be brought

  10. 2 hours ago, TwiceHorn said:

    Self-defense in Texas mostly assumes that the force used in defending oneself was intentional, both as to the act and as to the harm or potential harm inflicted.

    Manslaughter is "recklessly" causing a death, which is behavior worse than simple carelessness.  I'm not really sure you can shoehorn self defense into a manslaughter charge.

    Exactly, which is why this is a murder not a manslaughter case, with the defenses of self defense and mistake of fact. A jury might buy her defense. The might not and give her 5, the minimum, because they think she fucked up but is not a bad person.

    Manslaughter mens rea is recklessness, meaning she didn't intend to shoot him, but she did (TWICE). How queer is it to claim self defense, an intentional act, to a charge alleging a culpable mental state of recklessness? 

     

  11. 4 hours ago, Gene Parmesan said:

    The apartment #s were shown in videos early on.  To me that's 1 in a million things that should have registered with her between the garage and the door but didn't.  If you believe that her arriving at that door was in fact purely accidental then you pretty much just write those things off as being tuned out.  It happens.  The alternative to think she purposefully went to that door, but there is basically zero evidence of this other than unconfirmed noise complaints.  Now what happened after she arrived at the door is entirely in question.

     

    3 hours ago, South Austin said:

    That and the welcome mat in front of his door.  How loopy after a long shift at work do you have to be to not even notice that there's now a fucking welcome mat in front of what you think is your door????

     

    3 hours ago, Gene Parmesan said:

    There are a thousand things that could have registered in her mind but didn't.  Your brain tunes out a lot of crap when you go into routine mode even after only a 5 hour shift of sitting on your ass.  Doesn't excuse her killing, but it reconciles how she wound up at the door fairly simply.

     

    3 hours ago, Huckleberry said:

    Perhaps it can explain showing up at the door. The problem with this theory, though, is that zoning out like that requires that your routine is being repeated. That's how people leave their kids in a car, because once they get on the drive to work their brain checks out as they're in a routine. If the baby doesn't cry, it becomes dangerous if they're tired, etc.

    But once she's at the door her routine was broken. There was a red doormat. The light that turns green when she inserts her key turns red instead. There were almost literally multiple red flags that should have snapped her out of it.

     

    3 hours ago, Reagan1k said:

    In my opinion, it's not that far fetched.....I have stuff magically appear in my house from time to time and find out it was there for days or weeks before I paid attention.

    Not defending her, but my own experience says that when I'm in a routine, I miss stuff.  My wife redecorated some of our dining room once and had a bet with the decorator how long it would take me to notice.....Wife won with the over at 7 days.

    She quite easily have been staring at her InstaBook account on the phone and just going through the motions.

    I am in no way defending her at all and this is tragic....I'm just thinking out load as to how it even plausible.

     

    Perception is huge. I happen to know quite a bit about it due to pedestrian/auto death cases. Vision is being able to see an object, like the eye is capable of detecting an object, clearly she could have seen the red mat, or the red light. Detection sets the bounds of the possible but does not mean conscious perception. When a person is on alert and knows exactly what a target looks like and when or where it will appear, the difference between sensation and perception can be very small. In the real world, there may be situations where a person fails to perceive a detectable object for very good reasons. Attention is “gatekeeper” or filter that lies between sensation and perception and it is a limited resource. The more you focus your vision, the more likely objects in the periphery are not noticed. People look where they expect to find info, or for a particular object they are looking for. Attention is tuned to the object's expected location or properties like color, shape, or motion. You are more likely to see what you are looking for, or where you were looking for it, and less likely to see things that are "irrelevant" in your mind. I think the case can be made she is not looking for an apartment number, at all. She "knows" where she is. She does not concern herself with door mat trying to enter her place with a handful of items. Doors have mats, the brain expects as much and it is not "out of place" in a way that it might be conspicuous enough to enter her perception, if she even bothered to look down. Perception is the process of organizing and attaching meaning to sensations that have penetrated the attentional filter. Expectancy is a major component of perception. You point your eyes where you expect to find info. You see things you expect to see better or faster than the unexpected, or things that are out of place. The number on the door is of no import to her. There is a mat in front of a door, right where the brain would expect one to be, and may not have entered her attention.

     
    3 hours ago, TwiceHorn said:

    Actually, no you don't really.  Murder in Texas is a real straightforward offense:  killed someone intending to do so or intending to harm them.  Fin. 

    It really fits what she did better than any other crime.  She was neither reckless nor negligent in her actions with her weapon.  She may have been reckless or negligent in the actions that led up to the use of her weapon, but that is of no moment under the Texas murder statute.

    Her being reasonably mistaken as to the ownership/possession of the apartment, and his right to be there, gives her a "castle doctrine" type self defense claim.  If her mistake was not reasonable, she has no defense.

    That's correct. However, if she entered the apartment at all, that is a criminal trespass and while she may get a jury instruction on self defense, she will not get the benefit of the "Castle Doctrine" jury instructions for "force used is presumed to be reasonable" and "no duty to retreat" under 9.32(b) and (c)  

  12. 7 minutes ago, TwiceHorn said:

    Ah excellent points.  I neglected to look at the dates.

    Am I correct that most warrants are sealed until executed and returned?  An article mentioned that there were several remaining under seal.

    They are not public record until executed, with the exception being: sealed by motion and order of the court. See CCP 18.01(b) and 18.011.

    • Like 1
  13. Gentlemen:

    An important point .....the shooting was Sept. 6 at 10pm. THE SEARCH WARRANT was signed on Sept. 7 and the search was conducted. Prolly as fast as they could find a judge to sign it at that hour, which in a metro area would be pretty quick.

    The RETURN was recently filed, and the items found became a public record.

    The search of his residence took place shortly after the shooting, not in the last few days.

    I agree that her place should have been searched at a minimum to show the layout of the place to confirm or negate the reasonableness of her beliefs then existing.

    NOTE: if she did give consent, there would be no need for a warrant and hence no public record of it, so to assume, from the lack of a public record, that a search did not take place is an assumption that this lawyer, who is deathly allergic to speculation and assumptions, will not make at the present time. 

     

    • Like 4
  14. Crime-scene evidence from Botham Jean’s apartment supports Dallas police Officer Amber Guyger’s account that she shot Jean from across the room as she stood inside his apartment door, two law enforcement officials with direct knowledge of the case told The Dallas Morning News.

     

     

    The two shell casings were found just inside the door, indicating that's where Guyger stood when she fired her gun, one official said.

    That official said there was no blood by the door to indicate that's where Jean was shot. There was "a small amount along the paramedics' route with Botham," one of the officials said.

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

    I had lunch with a cop today, we discussed it and consistent with my recollection, and tough lessons on hot brass, his opinion is the casings are ejected out to the side and to the back, not forward.

  15. 2 hours ago, Dahobbs said:

    I was speaking generally, not specifically as to the penal code. And my point was that "malice aforethought" historically was simply one type of mental state. The precise definitions and characteristics of mental states have changed over the year, either through progression in the common law or via statutory enactment. But the general framework has remained. 

     

    It depends on the jurisdiction as to what the precise burden of proof is for an affirmative defense. In Texas, the Defendant must prove it by a preponderance of the evidence:

    It sounds like you are referring to general defenses or exceptions under section 2.02 or 2.03:

     

    lee-corso-not-so-fast-my-friend.jpg

     

    The Burden of Proof. The defendant bears the burden of producing some evidence in support of a claim of self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces such evidence, the State bears the burden of persuasion to disprove that defense. Id. “The defendant is not required to prove self-defense. Rather, the state must prove, beyond a reasonable doubt, that self-defense does not apply to the defendant's conduct.” Texas Criminal Pattern Jury Charges: Criminal Defenses § 32.2, at 184 (2015). 

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