The Campaign For DA

9.30.2019

Random Monday Morning Thoughts



  • Amber Guyger
    • On Friday Amber took the stand, and this case finally began to play out like it should have. The focus was all on her actions once she entered the apartment. Everyone now basically concedes she actually believed she was in her apartment. 
    • The most telling thing legally happened when the prosecutor asked her if she intended to kill Botham Jean.  She said yes. She had to say yes. The prosecutor did this so he can now argue to the judge that she can no longer legally ask the jury to consider lesser included offenses of manslaughter or criminally negligent homicide. As I've said from the beginning, she didn't recklessly or negligently kill him. She intended to kill him. And that's what makes this trial about whether she reasonably used deadly force in self defense based upon the facts as she knew them. We have finally gotten there. 
    • I don't think the jury should be asked about anything other than murder and self-defense.
    • There's going to be a fantastic strategic question that the defense team will face. The defense certainly knows that legally the jury shouldn't be asked about lesser included offenses of manslaughter and criminally negligently homicide, but they will try to get them submitted anyway. And does the prosecutor decide to agree to it for strategic reasons as well? The prosecutor has to have some fear of a not guilty verdict on murder and, after thinking about it for a couple of days, might want those lesser charges submitted as a fallback. And to complicate matters, just because both sides agree, the judge doesn't have to go along with it (although most of the time a judge will.)  
    • Really technical: If the defense does ask for lesser included offenses of manslaughter or negligent homicide and it is submitted, rightly or wrongly, and she is convicted of one of those two offenses, can the defense later argue on appeal there is legally insufficient evidence of either of those charges since the uncontroverted evidence is she intended to kill Jean? I don't think so, but I'd have to research it. I think that if the defense asks for a lesser included offense they are stuck with it if she gets convicted of it. Those defense lawyers should know -- and absolutely must know -- the answer to this. 
    • Here's why the lesser includeds are important: If she is convicted of murder, the jury will decide punishment with a range of 5 year to life. They cannot give her probation. Yep, the jury knows if they convict her of murder they are sending her to prison.  If a manslaughter charge is submitted (even if improperly) and she is convicted of it, the range is 2 to 20 years and the jury will have the option of giving her probation. 
    • The defense may very well decide to go with an "all or nothing" strategy. That is, they don't even try to get the judge to submit manslaughter or criminally  negligent homicide charges, and give the jury the only option of murder or not guilty. Is it possible the jury will be nudged towards a not guilty verdict since they know a guilty verdict also means they must send her to prison? This is something they have to sit down with Amber about, make sure she 100% understands everything I've mentioned so far, give her advice as to what they think she should do, and then let her make the call. 
    • Amber did a good job testifying, but the prosecutor struck some blows. Notice how he asked her what she "could" have done. Could she have taken cover instead of firing? Could she have called for back up? Amber answered yes to that series of questions.  Notice he didn't ask he "Did you feel you had time to take cover?" or "Did you feel you had time to call for backup." Her answers would not have been yes. 
    • Both the prosecutors and the defense lawyers are very good.
    • And, overall, the judge is good.  She might be on shaky ground on limiting evidence from the defense experts, but she's played it pretty straight. And one thing she needs extra credit for: She is not grandstanding for the cameras. 
    • The judge severely limited Texas Ranger David Armstrong from offering opinions about the propriety of Amber's conduct once she entered into the room. The legal expert on WFAA criticized her about that on Saturday. He even speculated that the short session that morning was perhaps because the judge had been presented with "some new authority" which is making her question her decision. Notably, there was a case out of Texas' highest criminal court earlier this year which liberalized somewhat when an expert can testify in the field that does not involve "hard science." If  you hear a reference to the "Nenno Test" today or tomorrow, you heard it hear first.
    • I think Amber Guyger should not be convicted. I'm beginning to worry that she might be convicted. 
  • A house burned in Haslet on Saturday. Someone wants you to know about his photography business. 
  • Messenger notes: (1) They are going to release news about a paywall of some sorts. Everyone quit griping and subscribe. They provide a critical service to the county. (2) Check out Brian Knox's column this week about one of oddest parts of the recent murder trial: The kid basically turned into the early days of Alexander Supertramp after the murder. It's pretty wild. (3) This could be a running bit for the coverage of every council meeting: Describe someone who speaks.
  • Montana this weekend.
  • I haven't read this but it's a great idea. Burn Big Tex just like the ending of the Burning Man festival. 
  • Ukraine/Impeachment:
    • Trump was an absolute raving paranoid maniac on Twitter this weekend. He retweeted on Sunday over 25 random Twitter accounts (some bots) who praised a Fox News segment that morning. That is disturbing and unbalanced behavior -- even for him.
    • Then he amazingly quoted Money Changer In The Temple Robert Jeffress about a "Civil War like fracture" if he is impeached.
    • He even intimidated the Whistleblower:
    • Smart to do it late Friday: After the Ukraine memo mentioned envoy Kurt Volker, he abruptly quit.  (Side note: The Arizona State student newspaper broke the story.)
    • This weird defense that the Whistleblower relied upon hearsay is bizarre. He was right. The White House's own memo about the Ukraine conversation confirmed what he said. 
    • He's freaking out again this morning:
    • This is now 100% Orwellian. It's not even funny. It is actually happening. And Trump's base is obeying The Party.
    • Here's an example of that: House Minority leader Kevin McCarthy defiantly told 60 Minutes correspondent Scott Pelley that he was making up the quote, "I need a favor though." Good lord. 
    • If you care more about Robert De Niro dropping F Bombs on CNN than about the scandal, your missing it.
  • Off beat images from the college football weekend. 


  • The Denton County Sheriff's Office continues to keep from the public any details regrading the shooting of the man who was running away from his deputies. The Sheriff won't even tell us the name of the officers involved. s
  • Messenger: Above the Fold