The Campaign For DA


Random Tuesday Morning Thoughts

  • Amber Guyger:
    • I told you the Court's Charge to the jury was going to be a cluster and, man, it was.
    • First off, that thing was put together outside the view of the cameras and probably after a several hour meeting with the lawyers and judge on Saturday. Generally, the Charge in most criminal cases is pretty simple. It might get handled on the record like this: Defense: "I'll request a self-defense and defense of third person instructions." Prosecutor: "That's fine. Judge: "OK." Then the Charge is prepared and tiny nit-picky objections to the wording are made. This case ain't simple. 
    • Yesterday, the trial began with the "nit-picky" objection part. We missed the part as to how it was decided what would go into the Charge since the lawyers obviously knew when they walked in yesterday what was going to be in it. There's nothing sinister about this. (It's actually more common in civil cases than criminal cases, but still common.)
    • Manslaughter was given as a lesser included. That's bizarre. There is no question that was done only by agreement by both sides because there is no way it should legally be given. I've not heard one legal "expert" on TV or radio who says otherwise. (And if you want to get really technical, the Manslaughter option oddly didn't even list, and require the jury to find, what specific reckless acts were committed by Amber. If a Manslaughter charge is included in an original indictment, the law requires that the reckless acts be specified. They couldn't do it here because it doesn't make sense -- she intended to kill him and didn't recklessly kill him.  Here the jury just could just make up whatever they want to as to the "reckless acts"  and convict her of Manslaughter if they desire.)
    • Oddly, there was no Criminally Negligent Homicide option. That's weird. If Manslaughter  is ever given to a jury there is always a lesser included of Criminally Negligent Homicide given as well. Someone said yesterday they are "legal cousins" and that's close. They are basically legal father and son who are always together. The only explanation is that the neither the State or the Defendant wanted the Criminally Negligence submitted. 
    • Everyone is screaming about the Castle Doctrine being included. That basically tells the jury to start with a presumption that deadly force in self defense is reasonable unless the State can overcome it. That really doesn't bother me. If Amber thought she was in her own home, she shouldn't be convicted for acting like she was in her own home based upon law applicable to those in their own home. (Side note: The Castle Doctrine is really over hyped in its intended use. No Texas jury is ever going to convict a home resident from killing an intruder. The resident is going to get a break from the jury every time even if the Castle Doctrine didn't exist.)  
    • Here's the Nuclear Bomb in the Charge which I believe is completely wrong and completely a gift to the defense: The crazy Mistake of Fact Instruction at the very end. I was listening last night to a replay of the judge reading the Charge to the jury and it stopped me down so much I immediately transcribed it. Stay with me here . . . .
    • The jury was told if they believed the defendant was guilty of murder or manslaughter (which means they had rejected self-defense) they were "next to decide whether the State has proved the defendant did not make a mistake of fact constituting a defense. To decide the issue of mistake of fact you must determine whether the State has proved beyond a reasonable doubt one of the following: (1) That the defendant did not believe she was entering her own apartment or did not believe that the deceased was an intruder in her apartment, or (2) the defendant’s belief that she was entering her own apartment or her belief that the deceased was an intruder in her apartment was not reasonable.You must all agree the State has proved beyond a reasonable doubt doubt either one of the two elements listed above."
    • There's more to this which I'm about to reproduce, but stop right there. Holy, cow. That's insane. I can't get over the fact how it is on its own island. Do you understand how that literally reads? The jury could believe she was not justified in using self defense -- after all, they only get to Mistake of Fact if they believe she is guilty of murder or manslaughter -- but the State still also has to prove she didn't (1) actually believe or (2) reasonably believe she was in her own apartment or faced with an intruder while there. I could completely understand if the jury had been instructed that finding this mistake was a prerequisite before deciding whether Amber could invoke self-defense, but that's not what is going on here. And if you think I'm over-hyping this, look what comes next:
    • "If you find the State has failed to prove beyond a reasonable doubt either element one or element two listed above you must find a defendant not guilty." And here's the only way they can find her guilty: "If you unanimously agree that the State has proved beyond a reasonable doubt each of the elements of murder or manslaughter and you unanimously agree that the State has proved beyond a reasonable doubt either element one, that the defendant did not believe she was entering her own apartment or did not believe the deceased was an intruder in her apartment or element two, that the defendant’s belief she was entering her own apartment or in her belief that the deceased was an intruder in her apartment was not reasonable, then you shall find a defendant guilty as alleged or included in the indictment." (This part of the Charge is read at 1:27:40 on this WFAA video.)
    • Can you tell I can't believe that instruction is in there? Read it again and you'll understand. This is a complete misstatement of the law (and even I don't think Amber should be convicted.)  How the prosecution couldn't stop this from getting inserted in the Charge is beyond me. How the judge, who is no fool, put it in there is a mystery. The best explanation is that the paragraphs were inserted, removed, and moved around and  inserted, removed, and moved around again so many times in the multi-hour conference about the Charge that this paragraph ended up, once again, on its own island that no one saw. Talk about being on "auto-pilot."
    • Could she possibly be convicted with that Mistake of Fact instruction? You would think the answer is, "Absolutely not." But here is the real world: All of the instructions in the Court's Charge are so convoluted that the jury is going to use them only as a guideline and do what they think is "right." That's not how it supposed to work, that's not the way the law is supposed to work, but that's how it actually works. And that's especially true in cases like this. 
    • But this shows why the defense want people who work in technical fields (engineers, computer coders) on the jury for cases like this. You want someone who is used to logic and flow charts. You want someone who will stand up and say, "Do you see what that mistake of fact paragraph says!? It's a simple 'If-Then' construct! Can't you see that? There's no way we can find her guilty!"
    • Remember when I said the first thing I would have done if I had been hired in this case would be to prepare the Charge. Now you know why. But even I wouldn't have thought I'd get that kind of Mistake of Fact instruction. 
    • Finally, you'll hear people say, "The longer the deliberations go, the better it is for Amber." You'll hear me say, "The longer a jury deliberates, the more it means nothing." 
  • That exhausted me. 
  • There were three earthquakes around Snyder, Texas overnight. Are they fracking out there? (There was also one near Alvarado.) 
  • Ukraine/Impeachment. With all the news yesterday afternoon, all four of these people should be sweating.
  • Wise County's 1/2 representative Mac Thornberry announced he won't run again. That doesn't make much sense. His district goes all the way out to Amarillo and voted 80% for Trump.
  • The guy who was able to turn $3 billion into $3 billion after 20 years doesn't like an online sports news organization that is breaking the mold on making money. 
  • Happy birthday to communism in China.
  • There was some kind of brawl at a wedding rehearsal dinner in Rhome this weekend that left a couple of people in jail and a bridesmaid with a shiner. 
  • I'm guessing the prosecutor isn't exactly a joy at parties.