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.


Anonymous said...

I am surprised at your take on this case, and I'm sure I won't be the only one. Here's my take on this case, and it isn't an unusual one either. She made a mistake by entering the wrong apartment. Whether she was tired, distracted by her texting (or sexting), it was her mistake. When she entered the apartment and saw a strange man eating and watching TV, she deliberately pulled her weapon, told him to show his hands, and when he failed to do so, she fired her weapon. Once she entered the apartment, her actions were deliberate and lethal. If Jean had survived this ordeal, what would his take on this possibly be? A strange woman entered his apartment with a weapon, told him to show his hands, and when he stood up to confront the armed intruder, she deliberately shot him. After all the rhetoric, what I take away is this: and armed intruder shot and killed a man in his own home. Forget the skin color differences, forget the gender differences, forget the fact that one of the individuals was a uniformed officer, it all boils down to that. To me, that is murder.

Anonymous said...

You surprised me with this one, LS. If you wrote about this case, I figured it would be from a "the jury reached a just verdict" perspective. Still haven't digested your reasoning

legalschnauzer said...

@7:31 --

That's what my heart wanted to write. But my head had a problem all along with the intent element, which is central to a murder conviction. When I researched Texas law on the issue, it was clear the jury got it wrong -- perhaps because they were given incorrect instructions -- and prosecutors never should have brought criminal charges.

Anonymous said...

I think the b---h got what she deserved.

legalschnauzer said...

@6:36 --

I agree with almost everything you say, especially the part about her winding up in his apartment. To be shot in your own home just seems horribly wrong. You feel that way, and I feel that way. Our only disagreement is on whether it's murder, and my review of Texas law tells me it isn't. That's not the conclusion I wanted to reach, but I couldn't escape it in trying to write an honest analysis of this very sad case.

Shep said...

I think this woman came across as unlikable to the jury, and that probably cost her big time.

legalschnauzer said...


I think you are right, with the sexting evidence being particularly damaging. Of course, that has nothing to do with murder, but it came into play anyway.

Anonymous said...

So, you are saying this woman walked into a man's apartment, shot him to death, and should not be punished at all?

Anonymous said...

I can already tell this is going to be one of your longer threads. 6:36 here. One of the reasons this case resonates with me is something similar happened to me in the mid-nineties. I was living in an apartment, alone with my dog. I never locked my door when I was home in the daytime, only locking it at night at bedtime. Anyway, sitting in my living room watching TV with the dog, my neighbor (not a friend or acquaintance, really a stranger to me) entered my apartment. My dog immediately jumped down and rushed the woman, barking furiously. She screamed, ran out and slammed the door behind her. I laughed, praised my dog and gave her a treat. Just one of those things. After that I always tried to lock my door in daytime while at home. When this Texas case first hit the news, I thought back on that day and wondered: if a police officer had been my neighbor, if she thought I was the intruder, would I be alive today? Would my dog have survived that day? I am NOT trying to equate the little incident from about 25 years ago with the death of Jean, but for this reason in my past, it DID resonate particularly hard with me. I was disgusted by the officer claiming to be in fear of her life, and I was disgusted with the judge who gave the jury the option of the "castle defense". I praise the jurors for seeing through those ruses and coming to a just verdict. Perhaps Texas law, as you say, has these nuances of "intent", but as I see it, she intended to pull her weapon (not a mistaken action but deliberate), she intended to fire her weapon (not a mistake but deliberate), and, as they say, intent follows the bullet.

legalschnauzer said...

@8:07 --

Not exactly. I'm saying Texas law (and likely law in other states) does not criminalize this behavior, probably because the facts are so bizarre and unusual. They certainly do not fit murder under the Texas Penal Code, and I don't believe they fit manslaughter either, although that's probably a closer call.

That's why I say the proper punishment is on the civil side. Suing Guyger is a possibility, but the pockets probably rest with the police department and the owners/management of the apartment complex. My guess is that wrongful death would be the main civil claim, and the Jean family should be very well compensated in such a case.

In essence, the facts of this case are so shocking and unfortunate that the authors of the penal code, and Texas case law, never anticipated it.

legalschnauzer said...

@8:16 --

Thanks for sharing your experience. I've lived in several apartment complexes, most of them fairly large, so I can identify with this, too. Residents are separated only by thin walls, and yet we all depend on each other, and mistakes like the one you experienced can happen. Thankfully no one was harmed, and your dog was up to the task -- as dogs usually are.

I think raising the Castle Doctrine was a big mistake by the defense. It probably confused the jury, and it simply didn't apply here because Guyger has no right to "stand her ground" in someone else's apartment. I have no idea why the defense raised this issue, unless they sensed things weren't going well and needed to pull something out of the fire.

You also raise a point about the presence of a gun. Without a gun involved, this incident probably turns out like yours -- with both parties realizing a mistake was made and perhaps finding it even amusing. So sad that Botham Jean lost his life while simply trying to enjoy a quiet evening at home.

I wonder about the issue of police departments allowing cops to keep their weapons while off duty. I could see that being raised in a lawsuit. Perhaps the policy should be that they turn in gear after their shift.

legalschnauzer said...

@8:07 --

An additional thought: Botham Jean probably lost his life because of what I call the "cop mindset." As noted in the post, I've had the unpleasant experience multiple times of seeing cops in action -- and it's a scary experience. It has taught me that cops are slow to acknowledge mistakes, they tend to blame others (members of the public) when things go sour, and they have a tribal mentality where they tend to stick together -- even lying under oath -- when a tribe member is under fire. They also are more likely than a regular person to escalate a situation toward violence. My experience has been that a lot of cops are not terribly mature -- "arrested development," you might say -- but we entrust them with all of this authority and weaponry. Many of them are not capable of handling it, and that can put the public in danger. I think Guyger just could not conceive, in the heat of that moment, that she was the one in the wrong place.

A regular person, upon encountering Jean, might have said," Who are you?" He says, "I live here. Who are you?" In that moment, a regular person might have realized her mistake and said, "Oh my God, I'm in the wrong place. I'm so sorry." But Guyger immediately became bossy and saw the situation as a crime scene. What regular person would have told Jean to "show his hands"? He had to be wondering, "WTF."

Anonymous said...

I believe the sentencing phase continues today. Will be interesting to see how that turns out. Some of Guyger's texts and social-media posts won't help her.

Anonymous said...

So, you believe the woman's story?

ineedthat12 said...

LS, I see many are not in agreement with you.
I am not one of them. I agree with you 100%.
She simply made a mistake. The mistake cost a human life and is tragic.
The bottom line remains that it was a mistake so this is a civil matter and not a criminal matter.
By the way, I don't agree with you about 50% of the time but I read your blog almost daily because I am open to views I don't always agree with.

legalschnauzer said...

@9:50 --

In news accounts I've read, I don't see where the prosecution poked holes in her story. In one report, a prosecutor called her account "garbage," or words to that effect. I don't see that as a very effective way to rebut Guyger's story. Best I can tell, the facts are pretty well established. My argument is based on matters of law. If you become aware of an account that presents facts effectively countering Guyger's story, please let me know.

Anonymous said...

I agree with Guyger on one thing. She did "ef" up, big time

legalschnauzer said...

@9:52 --

Thanks for being a regular reader -- and for sharing your thoughts on this post.

Anonymous said...


Thanks for running the photo of the apartment complex. I was wondering what it looked like, how it is designed, and that's a big part of this story. Based on the Web site, it looks like a pretty nice place to live.

Anonymous said...

I can't help but think of the Sandra Bland case in TX, upon reading about Guyger. I suspect the Bland matter was on the minds of jurors, and certainly on the minds of those who conducted protests over Guyger's actions in killing an unarmed black man while he watched TV and ate ice cream in his own home.

legalschnauzer said...

Here is part of prosecution's closing argument, from Court TV:

Anonymous said...

Guyger didn't help her cause by choosing a likable, sympathetic victim.