Wednesday, October 2, 2019

Jury in Dallas, Texas, convicts ex-cop Amber Guyger of murder in shooting of Botham Jean, providing more evidence that our courts often fail to dispense justice

Amber Guyger

I probably am among the least likely people on the planet to defend the actions of a cop.  But even I was aghast upon learning yesterday that a Texas jury had found former Dallas police officer Amber Guyger guilty of murder in the 2018 shooting of Botham Jean. I've written numerous critical posts about the unjustified use of police force, especially against black citizens. (Guyger is white; Jean was black.) Still, the Guyger conviction provides more evidence that our courts are citadels where truth and the rule of law go to die.

State v. Guyger is particularly disturbing because it points to prosecutors who were overzealous, corrupt, incompetent -- or some combination of all three.

As regular readers know, my interactions with law enforcement officers have been almost uniformly horrific. In October 2013, an Alabama deputy named Chris Blevins entered our Birmingham home -- without showing a warrant, stating he had a warrant, or stating  his grounds for being there -- beat me up in our basement-garage, doused me with pepper spray, and hauled me for a five-month stay in the Shelby County Jail. I've described this event as a "state-sanctioned kidnapping" (no warrant or other document lawfully authorizing my arrest ever has surfaced) and written that it amounts to an "arrest for being a liberal blogger" (because it grew out of civil allegations of defamation from GOP political operative Rob Riley and lobbyist Liberty Duke, without even a whiff of alleged criminal conduct). To this day, by the way, my reporting on the Riley-Duke relationship never has been found to be defamatory, as a matter of law.

In September 2015 -- after we had essentially seen our home stolen via a wrongful foreclosure and been forced to move out of Alabama, I saw Missouri deputies break into our home for an unlawful eviction that ended with them brutalizing my wife, Carol, and yanking on her limbs so severely that they caused a comminuted fracture of her left arm, which required roughly eight hours of trauma surgery (and installation of numerous plates and screws) for repair. Carol and I then saw Sheriff Jim Arnott conspire with Greene County Prosecuting Attorney Dan Patterson to bring bogus "assault on a law enforcement officer" charges against Carol -- who, in fact, was the victim of a criminal assault, by thug cops.

This was an obvious "cover charge" designed to cover for blatant use of excessive force, and Carol and I were forced to sit through a carnival trial where four officers repeatedly lied under oath -- with at least one case of clear perjury -- causing Carol to be wrongfully convicted before a crooked judge named Jerry Harmison. What was Carol's punishment? It essentially amounted to a $10 fine.

Bottom line: You might say I have grounds for a healthy hatred of cops. At a minimum, I have reason to view them with extreme distaste and contempt. Despite that, I see the Amber Guyger conviction as a grotesque injustice. Guyger, 31, faces up to life in prison and already had been fired from her job before the trial; Jean, 26, was an accountant for a major firm. They lived, one directly over the other, at South Side Flats Apartments in Dallas.

Based on evidence at trial and press reports, here are the facts of the case:

Guyger had gotten off duty from a long shift, about 10 p.m. when she pulled into a space in the parking deck attached to her large apartment complex. As she entered the building, she did not realize she was on the fourth floor, not the third floor where she lived. A witness testified at trial that residents of the complex stated the parking deck and apartment building are designed in a confusing manner, causing many of them to get off on the wrong floor at different times.  
At some point during the day, Guyger had been texting about intimate matters with her male married police partner. She was having an affair with him, and that evidence was introduced at trial. 
Guyger went to the apartment directly above hers, and noticed the door was ajar, perhaps from a malfunctioning door knob. That allowed her to enter as Jean was sitting on his couch, watching TV and eating vanilla ice cream. Guyger saw a silhouetted figure in a fairly dark room and thought she had walked in on a burglary at her home. She commanded Jean to show his hands, but likely confused as to why this strange woman was in his apartment and bossing him around, Jean approached her at a "fast-paced walk." Guyger fired her service weapon, fatally striking Jean in the chest. He died after being taken to a nearby hospital.

By almost all rational accounts, this could be described as a tragedy that defies description -- even belief. Jean, a native of St. Lucia, was a smart, likeable, talented young man with a bright future. Aside from having an affair with a married man, Guyger seemed, before and during the trial, to be a solid citizen who performed pretty well in a high-stress, male-dominated profession. Sentencing phase of the trial began yesterday, and it was revealed Guyger had sent racially insensitive texts and vulgar online posts. How is that relevant to a murder case? That remains unclear.

Some bigger questions: Was this really murder? Was it even a crime -- despite its awful outcome?

Botham Jean
To understand the relevant law in State v. Guyger, we turn to Chapter 19 ("Criminal Homicide") of the Texas Penal Code. Texas recognizes four kinds of criminal homicide: murder, capital murder, manslaughter and criminally negligent homicide. Guyger originally was charged with manslaughter, and the jury could have convicted her of that, but they went with murder instead. (Note: Texas does not recognize various degrees of murder -- first, second, third, etc. Everything that meets the definition of murder is "murder.")

The key statutory law in Guyger is found in Sec. 19.02 ("Murder"), at (b) (1) (2) (3), which reads:

(b) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Item (3) is not a factor in this case, so we consider (1) and (2). The inquiry, however, does not end there. Various forms of the words "intentionally" and "knowingly" are central to the offense. To grasp their meaning under Texas law, we turn to Sec. 6.03(a), which states:

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

Many everyday folks, including me, are likely to need clarification on what sub-section (a) actually means. For that, we turn to Texas case law -- especially a ruling styled Cook v. State, 884 SW 2d 485 (Tex Court of Criminal Appeals, 1994), which holds:

Murder is an offense which requires that the culpable mental state accompany the result of the conduct, rather than the nature of the conduct. A charge which defines "intentionally" or "knowingly" as they relate to the nature of the conduct as well as the result of the conduct is error.

In other words, the central question is this: Did Guyger intend to cause Jean's death (the result), not did she intend to shoot him (nature of the conduct)? In this case, the evidence suggests she did not intend either one. Guyger testified in her own behalf and said she did not intend to be in Jean's apartment, that she thought she was in her own home. Guyger also stated, “I never wanted to take an innocent person’s life. I am so sorry.”

That statement might not be determinative of the entire case, but it's close. This is from a Daily Beast account:
“I thought it was my apartment,” Guyger told dispatchers 19 times on the frantic 911 call played in court. “I thought it was my apartment. I’m fucked. Oh my God. I’m sorry.”

We can find no sign that the prosecution effectively countered any of Guyger's defenses. The evidence suggests the following:

* She was, in fact, unaware she was on the wrong floor -- a mistake many of her neighbors had made;

* She did, in fact, think she was entering her own apartment. After all, she did, in fact, live directly below Jean;

* Guyger's own words, on the stand and in the 911 call, show she did not intend to kill Jean, or anyone else, and we see no sign that prosecutors impeached her testimony on that issue;

* Under Texas law, the nature of Guyger's conduct -- mistakenly entering his apartment and firing her weapon -- is not a factor in the criminal mindset necessary for a murder conviction, but the record indicates she did not intend to even be in his apartment, much less firing her weapon.

South Side Flats
The prosecution's case consisted largely of claims that "she should have recognized this" or "she should have done that." But such points do not go to a culpable mental state. They suggest Guyger made a series of mistakes and was unable to correct them before events turned tragic inside Botham Jean's apartment.

One paragraph in a Dallas Morning News editorial yesterday suggests prosecutors pulled a con game on the public -- and the jury -- and Judge Tammy Kemp apparently let them get away with it. From the editorial:

We’re on record with our worries that Dallas District Attorney John Creuzot took a big risk in charging Guyger with murder rather than manslaughter. Creuzot and his prosecutors pointed out that Guyger didn’t accidentally discharge her weapon. She intended to shoot Jean. Manslaughter calls for a determination of recklessness.

The newspaper's editorial board should be more than worried about Creuzot's actions. They should be outraged that they have a fraud sitting in the DA's chair -- a man who is paid to know the law and apply it correctly, but clearly did neither in this case.

Was a murder charge appropriate in the Guyger case? For the reasons cited above, the answer is absolutely not. What about manslaughter? Here is how the Texas Code describes the requisite mental state for a finding of recklessness required in manslaughter:

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Guyger's trial testimony and her call to 911 show, over and over, she was not aware of the risk that she was entering an apartment other than her own, and she did not consciously disregard anything. Our conclusion: There was no crime here, and no charges should have been brought.

Does that leave the Jean family out in the cold in their search for justice? No, but proper remedies are on the civil side. We foresee viable lawsuits against the apartment complex, its owners, the Dallas Police Department, and perhaps other entities.

That won't bring back Botham Jean, but neither will yesterday's verdict. At least with a civil case, the matter will be in the proper legal arena. There never should have been a criminal case.

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