The Campaign For DA

9.27.2019

Random Friday Morning Thoughts



  • Ukraine:
    • Watergate never moved as quickly as this scandal has over the last three days. 
    • The tip-off was when the Administration went into full damage control by releasing a memo which, despite being its best version of the facts, is so damaging you have to wonder what the true transcript says. Trump never goes on the defensive and he did.
    • Then we learn the true transcript is so politically damaging that it was placed on a super secret system reserved for national security concerns and there are probably others.
    • The hearing yesterday with Joseph Maguire, the acting director of national intelligence, demonstrated the Republicans had no defense for Trump's conduct. They can't attack the Whistleblower's allegations because he has been shown to be correct even based on the limited memo, and they can't attack his character because Maguire said the whistleblower "did the right thing" and called the situation "unprecedented."
    • After Maguire said "he would to the best of his ability . . .  offer [the whistleblower and his sources] the full protections of the whistleblower statute to prevent acts of possible retaliation", Trump was recorded as saying "You know what we used to do in the old days when we were smart? Right? The spies and treason, we used to handle it a little differently than we do now." Treason is punishable by death.
    • Trump is out Nixoning Nixon.
    • The question in my office yesterday was if and when the Republican senators would finally turn on Trump. If so, it's over.  I don't think it'll ever happen. But if this ship goes down, people like Ted Cruz shouldn't be allowed to jump off. He sold his soul to Trump. That should have consequences. 
  • Can we just impeach him for being the dumbest man alive?
  • Some people are like Brad. Don't be like Brad.
  • Good lord
  • Our local Texas Ranger is featured in the Los Angeles Times.
  • Amber Guyger:
    • The State rested yesterday. Yep, that's all they had.
    • Amber may very well testify today. I'd certainly put her on the stand, but I could see the defense now having second thoughts since the State's case was such a dud. But the defense promised the jury she would testify during opening statements, so they are stuck with it. 
    • Even when I'm 99% sure the defendant will testify I always tell the jury: "You may hear from him or you may not. I don't know. It is truly his decision. But it may very well be that that the State's case is so weak that there's no need for him to explain anything at all. Remember, if the State can't prove their case beyond a reasonable doubt, the judge will tell you that you can't convict him. And you've promised me you won't hold it against him if he chooses not to testify." That at least gives me an out. Amber's lawyers didn't create that out. 
    • Once both sides rest and close, the jury instructions are going to be insane. Heck, they are ridiculous in even a simple criminal case. The terminology going forward is that the jury will be given the "Court's Charge." It will contain definitions of what the law is and one multi paragraph question applying them (i.e. "If you find . . . but if you also find . . . . "). 
    • The charge is critically important because the lawyers will be able to stand in front of the jury and say, "The judge has told you the law is . . . ." Even better, the defense can stand up and say, "Look at page 6. The judge is telling you what the the law is about self-defense  -- and it's what I've been telling you all along. She has told you that if you have a reasonable doubt about [insert x], then you must find her not guilty." So, in complicated legalize, a lawyer wants as much good stuff in the charge as he can get. 
    • The first thing I would have done if I were representing her would have been to create the jury charge. (It's really Trial Law 101. You prepare and tailor your case based upon what the instructions the jury will be given. You focus from the get-go on what the jury will be faced with. ) And once I confirmed there is not an appellate case out there concerning jury instructions which even remotely concerns this bizarre fact pattern involving Mistake of Fact and Self-Defense (there's not), I'd consult the smartest lawyers I know to get their opinion on what should be in it. If there had even been a trial before which had Mistake of Fact and Self Defense, I'd got to the district clerk and get a copy of that charge as a starting point. And then I'd prepare it. 
    • If Amber is convicted, the greatest chance that the case will get reversed on appeal is the judge refusing to include an instruction in the charge requested by the defense. The judge isn't bad, but she's proven she's no scholar (she's already commented on the evidence which, although harmless so far, is something a judge knows to never do.)  If you are watching the trial, watch the upcoming part when both sides rest and the lawyers are asking the judge for specific instructions they want in the charge. I think it will be wildly entertaining especially since I don't think the prosecutors, amazingly, have completely thought about it like they should have. 
    • One thing that has not been mentioned is that it is very common for a jury to be instructed on the issue of "apparent danger" in self-defense cases involving deadly force. It's really a "mistake of fact" defense in this scenario: A defendant thought the victim was pulling a gun on him so he shot and killed him. Turns out, the guy was not pulling out a gun but some innocent object. Yep, it's still a defense. Even placing aside for a moment the mistake of going in the wrong apartment, "apparent danger" is going to be a big player in this case.  Once she opens the door, if it was reasonable for Amber to believe Botham Jean was a threat to her life, from her standpoint, then the jury will be instructed to acquit. Here's an example out of a book widely used by trial judges (I got it from a trial judge.): 
    • And one more thing about the "apparent danger" defense that is critical: The jury will be instructed the State must prove beyond a reasonable doubt that she didn't have a reasonable belief she was in apparent danger. Man, that's a crazily high burden. 
    • It boils down to this: Once Amber Guyger walked into the apartment believing it was her apartment, did she reasonably believe that deadly force was necessary even if she was factually wrong about the need to use deadly force. If you want to say she probably should have just tazed him or should have retreated, that's fair but that's not enough to convict. Once again, the State must prove beyond a reasonable doubt that she didn't have a reasonable belief that deadly force was necessary.
    • I continue to believe whether she was reasonable or unreasonable in going to the wrong apartment is a red herring. It is her conduct from the moment she opened the door is what the trial is about.
    • Whether she should have provided medical care to him immediately after the shooting is also a red herring as well. (The lack of no blood on her uniform is absolute a b.s. stunt on the State's part.)
    • This case drives me crazy. And that defense lawyer who was providing commentary yesterday during the breaks on WFAA's live feed would never be my co-counsel. 
    • Watch it live here.
  • I've criticized TCDLA for some of their stupid trial tips in the past. They actually got one right yesterday. 
  • The Star-Telegram has a long feature story today on Ashley Fouts, the Boyd volleyball player who passed away in her sleep.