It's Friday. Let's Get Out Of Here.

Random Friday Morning Thoughts

  • ABC News found two of the Amber Guyger jurors. I was pleased to see that neither of them said anything particularly dumb, but we didn't learn anything about their thinking regarding the self defense and mistake of fact issues. It was a horrible interview of these two. 
  • Trump's defense theory on impeachment took a dramatic turn yesterday: Admit on the White House lawn what you've been accused of doing. Think I'm wrong? Let's check in on Fox News' Shepard Smith: 

  • He's not the only one at Fox who is breaking with The Party.
  • And his base is not pleased when State TV turns on their leader.
  • Nothing says "holy worship" like an interview during Sunday services of someone who is so toxic that Fox News fired him after you talked with him about Democrats worshiping a pagan god. 
  • The Baylor scandal all started with one allegation. The guy was convicted at trial. The Waco court of appeals reversed it. The Texas Court of Criminal Appeals then reversed the Waco appellate court and sent it back for further consideration. The Waco appellate court then reversed the conviction again. On Wednesday, the Court of Criminal Appeals said it wants to review that decision. 
  • Whenever I use two factor authentication and have that three second wait before I get a code on my phone, I feel like a CIA spy when it arrives.
  • There appeared to be a mentally disturbed woman at an AOC rally yesterday who said we should all "eat the babies" in order to stop global warming. Something doesn't seem right. I'm not ruling out that she might be a plant.  Edit: That didn't take long
  • Tarleton State will move to Division I football and join the WAC. Over the next ten years they'll make millions of dollars playing away games at Top Ten teams. It'll be brutal, but they'll get rich. (You should have seen me and two other guys at the courthouse trying to figure out Tarleton's move to the WAC when we finally figured out the WAC doesn't play football any longer. Tarlton will compete as an independent in football.)
  • I didn't mention it yesterday, but I saw this official complaint coming. I noted that one of the boys on The Ticket's afternoon show even objected to the judge's actions. "I wonder what the reaction would be if she handed her a Koran," he said. 
  • When Mrs. LL and I went to see Once Upon A Time In Hollywood, one of the previews was the yet-to-be-released-on-the-Internet trailer for Joker. I hadn't even heard anything about the movie. We both rated the trailer a collective "meh."
  • Legal nerd stuff: Yesterday the the Fort Worth Court of Appeals took the extraordinary action of  issuing an opinion on the State's Motion for Rehearing for the sole purpose of adding a footnote to slap down the State's appellate lawyers. It might seem like nothing to the man on the street, but this is the equivalent of an Appellate Public Execution. 
  • Concerning that slap down, I first thought the court was going after the Tarrant County DA's office who was first involved in the appeal. But it wasn't. After the court issued an opinion striking down a statute as unconstitutional, the State Prosecuting Attorney's Office out of Austin made an appearance in the case to flex its muscles and filed the Motion for Rehearing. It is that Motion that the court took to task. So the smack down is basically: Before you ride north to come up here to tell us we were wrong, you might want to at least first read the local DA's original brief. Edit: I faithful reader sent me an alternative theory. Maybe it is at least an "implied slap" at the DA's office for not arguing that the defendant had waived the overbreadth complaint in the first place. 
  • It's good to see that the 1918 massacre of 15 men and boys by Texas Rangers is getting the notice it deserves. (The site finally got a historical marker last year.) Now there's a documentary . . . 


Random Thursday Morning Thoughts

  • Amber Guyger:
    • Yep, that was a heck of a moment. I actually had someone call me from the courthouse as it was happening with a "Are you watching this?! Are you crying!? I bet you're crying!"
    • Legend will have it that the moment occurred in front of the jury and before sentencing.  (WBAP's Brian Estridge said this morning that he thought the moment prompted the jury to give the relatively light 10 year sentence.) It didn't. Texas is weird in that we allow for post-sentencing victim impact statements from the witness stand.
    • I've seen my fair share of victim impact statements. Most people, expecting to be nervous, bring a written statement and read it. And almost all are very bitter. Those who have forgiven tend to forego the opportunity altogether.
    • The judge paused before allowing the brother to hug Amber.  You know, that was a tough call. Can you imagine the hell that have broken lose if the brother had actually been putting on a grand charade and suddenly choked Amber out during the hug? That's exactly why the bailiff can be seen standing in close range.  It seemed like a safe gamble to let him hug her, but a gamble nonetheless.
    • I was surprised by the 10 years. I thought the jury was going to crush her after the quick guilty verdict. 
    • She's eligible for parole in 5 years. I would guess in this case she would actually serve 7 to 8 but that's impossible to predict. But no less than 5 years is guaranteed.
    • If the jury would have found her guilty of Manslaughter and given her 10 years, the parole law would be the same. (That's assuming a Deadly Weapon finding which would have certainly occurred.)
    • I'm not sure there will be an appeal. Amber's team needs to have a serious talk with her about the old adage of, "Be careful what you ask for." Does she really want a new trial? You sure it would be better the second time around? (There was a case out of Wise County within the last year or so where the defendant miraculously received probation and he still appealed and sought a new trial. I had no idea what he was thinking. Fortunately for him, the Fort Worth Court of Appeals did him a favor and affirmed his conviction.) 
    • I'm obviously in the minority, but I wasn't a fan of the judge hugging Amber and giving Amber her personal Bible in public.
      • The video feed should have been shut off at that point -- all aspects of the trial were over -- so that seemed a little bit of playing for the camera. And the judge controlled the camera's on/off switch. 
      • A judge should always be impartial and appear that way for matters pending before her. This case isn't over. There will be post-trial motions to rule on. The case could be reversed and tried again. Or that footage could be used in front of the parole board.
      • What's going to happen the next time a defendant elects for the judge to assess punishment? Say he takes the stand and says, "When I saw the judge hand Amber Guyger her Bible that time and point out John 3:16, I looked that verse up at that very moment. I was a changed man from that point forward because I took it to heart. Thank you, judge."
      • Personal thought: Why did the judge think Amber wasn't familiar with the most famous verse in the Bible? That was a weird "Let me show this verse that you might not have heard of" moment. (The very skeptical part of me thinks that anyone who says John 3:16 is their favorite verse is someone who probably can't name any other verse.)
      • Hey, I'd be fine with the judge doing that behind closed doors and we never heard about it. The case is so unusual and so bizarre that it would fit right in.
    • I saw one legal expert say it was a "compromise verdict." Huh? Heck, they are all compromise verdicts. (It reminds me of a buddy who I was golfing with once who heard one of our party say, while on the green, that "This one is a speed putt." He jumped in with a "[Expletive deleted], they are all speed putts!")
    • If the Amber Guyger case hadn't involved a cop and black man, it would have been plea bargained a long time ago (assuming it even got passed the grand jury.)
  • Our favorite Baptist pastor, oozing with Christian Love, is at it again. (Amazingly, even Fox News fired the radio host who agreed with Jeffress when he said it.) I've said it for years: In the long run, Jeffress will single-handedly destroy the First Baptist Church of Dallas.
    I hope The Onion posts a response from Moloch.
  • Count the red flags out of Wichita Falls. And they even left out of the graphic that (1) he is an English teacher at City View ISD, and (2) he crashed the Corvette.
  • And then there's this guy.
  • I don't know if we should be concerned that he can't spell "moat" or that he didn't deny that part of the story where he wanted Border Patrol agents to shoot border-crossers in the legs. 
  • Every person in the right half of this photo from a September 1st meeting in Poland with the president of the Ukraine is probably a tad-bit nervous (except John Bolton.)  Trump has been throwing Pence under the bus lately with a weird He-did-the-same-thing-I-did defense.   Rick Perry might be next. 
  • These are strange days when Trump posts an attack video on Joe Biden accompanied by  a Nickelback song only to have Twitter take it down because of formal copyright complaint. And I think we can all agree on a formal impeachment article based upon him making Photograph get stuck her in our heads.
  • At least four local churches are involved in the "Blessing of the Animals" or "Blessing of the Pets" this week. I think that's a funny bit which I support. (Am I in trouble for calling it a bit?)


Random Wednesday Morning Thoughts

  • Amber Guyger:
    • Oh, my.
    • She never had a chance with that jury. The verdict was simply too quick for any meaningful discussion.  Heck, I've had many misdemeanor DWI trials where the jury deliberated longer. I said yesterday that I would want someone to stand up in the jury room and say, "It's a simple 'If-Then' construct!"  Their brief deliberations show they didn't even get close to that. 
    • Do you know how hard it is to get 12 people to agree on anything? Have you talked to any of your friends about this case? I can't get three people in a group to agree on any part of it. I had one of my lawyer friends ask me yesterday, "They aren't really going to convict her are they?" and another say, "They need to hang her." 
    • I think she would have been found not guilty in Collin County, Wise County, or Tarrant County. At the very least there would have been a hung jury.
    • Question: "Did you intend to kill him?" Answer: "Yes"
      • I have heard so many people say this was the "turning point in the trial" when Amber admitted this on cross-examination. That blows my mind. We knew that from day one. 
      • I was listening to that very testimony at my desk live. When that question was asked of her, I literally said out loud, "Say 'yes'!" Say 'yes'!" It's the truth we all know. It's fits perfectly in the self-defense argument.
      • But that testimony turned out to be so impactful, and I didn't see the blow-back coming. Neither did her lawyers. That bothers me. It apparently came across as, "Did you intend to shoot Botham Jean - the innocent man?" She should have been prepared to answer and with passion: "No. You've got it wrong. I didn't intend to kill Mr. Jean. I intended to kill a person who I thought was an intruder in my apartment who meant to harm me." 
    • I predicted she would be found "not guilty" but I did grow a little concerned as the trial unfolded. I was stunned by how many rationale people online during the trial thought she was guilty simply because "She went into the wrong apartment and killed an innocent man." There was no nuance to their thinking. 
    • Here's why I thought she would be found not guilty, and I still believe it. Did she act reasonably in using self-defense when she walked into the apartment? I don't know. And because I don't know, I would have to vote not guilty. It was the State's burden, and the Charge correctly stated this, to prove beyond a reasonable doubt that her conduct was not reasonable.  There is no question to me that I have a reasonable doubt about the appropriateness of Amber's conduct once she opened that door. I'm not going to convict her of a crime if that's the case. In this mess of a case, this is pretty simple.  
    • You know what's going to put me over the edge: When some (or all) of the jurors agree to give interviews and say the dumbest things which fly in face of the questions and law they were given in the Charge. And it will happen. 
    • Will she win on appeal? Reversals, in general, are rare, and I have serious concerns about this case. The jury was free to say her conduct was not reasonable and there's nothing any appellate court can do to set it aside. Did I think the jury instructions were wrong yesterday? Yes, but they were wrong in favor of the defense. She can't complain that a manslaughter charge was included. She can't complain about that crazy Mistake of Fact instruction I went on and on about yesterday was given because the instruction helped her. The only thing she can hang her hat on is the excluded Ranger's testimony, and I don't feel particularly good about that. 
    • I'm scared for her on punishment. 
    • Yesterday the jury heard of racist texts and social media posts. I think that's cheap of the prosecutor to bring that up, and if I were judge I wouldn't allow it. That should have no impact on punishment whatsoever. What's supposed to happen? She's supposed to get x number of years added to her sentence because of an MLK Jr. joke?  And I say that even as it applies to me. You remember the comment section? You remember some of the crazy attacks I endured? Well, I don't think anyone needs to spend a minute in prison for something they said because it was offensive.
    • I feel incredibly bad for Amber. That verdict bothered me yesterday. If I'm her lawyer, I never get over that. I take it to my grave.   But I feel bad for her because the system didn't work. The verdict was too quick. She didn't have 12 people who agonized over the decision. She didn't have 12 people who studied the Charge and argued and debated as they held the life of another in their hands.  I think I've thought more about this case than jury did. And if you've read this far, I bet you have thought more about it, too. 
  • Three Burleson high school students were injured in a shooting in Fort Worth last night. 
  • I went on a historical journey in Paradise on Sunday, and I now intend to find the location of the water well shown in the photo on the website of the Paradise Historical Commission from 1926. It may not have been in the current downtown area. Side note: In the "suburbs" of Paradise, there's a lot of nice homes in actual subdivisions that have been built and are being built. I had no idea. 
  • Trump keeps on giving:
  • And you really think the Amber Guyger jury read the charge? People don't read at all. Link.
  • This morning Secretary of State Mike Pompeo admitted he was on the Ukraine phone call. He misled us on that just last week. There is a reason why honorable people like former Secretary of State Rex Tillerson left. There's a reason why people like Pompeo are there now. 
  • The Aggies are banning vaping on every campus.  Seems to be quite the overreaction. 
  • There's no way there's not an uprising over this, right? Then, again, Gainesville is in the Florida panhandle. 
  • Messenger: Above the Fold


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. 


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