It's Friday -- Let's Get Out of Here

Random Friday Morning Thoughts

It didn't turn out good.   Susan Loper was abducted from her Pilates studio in Plano at around 6:00 a.m. when she arrived for work, and her body was found along the tollway later that morning,. Her ex-boyfriend, Terrance Deering Black, was eventually convicted and sentenced to life in prison out of Collin County. All of the facts, including how they solved the case, are detailed at the beginning of an appellate opinion in the case here. The signed jury verdict is here

  • This bill sounded like I could idea, so I looked it up to see what the consequences would be for failing to intervene. Answer: Nothing. 

  • The Arby's in Decatur is struggling this week. 

  • Random carjack report I saw yesterday:

  • President Biden is considering advocating for an increase in the highest tax rate to 39.6% for every income dollar over $518,400.  In looking at the story I came across this chart. Man, look at the rate in the 1940s and 1950s. (The orange blocks just highlight when the rate has been 39.6% -- the same rate Biden is considering.)

  • Ex-Lubbock car dealer Bart Reagor, famous for his commercials on The Ticket where he sounded like a con man, has been indicted. (His meeting with salesmen which was secretly recorded is right out of Glengarry Glen Ross.)    

  • There aren't many details, but one person was shot early this morning in the fashionably hip West 7th Street area in Fort Worth at a place called Trinity College Irish Bar. "Two groups of men exchanged gunfire . . . ."

  • I'm telling you, Texas vaccinations might not ever get above 40% of the population. Basically everyone who wants one has received one. 

  • And that townhouse on the ocean will run you $4.2 million.  

  • Let's check the vote count in the House of Representatives yesterday on giving statehood to the District of Columbia (Note: It won't pass the Senate): 

  • College football rule change: Teams will now be required to run a 2-point conversion play after a TD when a game reaches a second OT. Also, if the game reaches a third OT, teams will run alternating 2-point plays.  They have been tinkering with the rule in the 1990s. 
    • If you want to see your team's record in overtime, here's a comprehensive list. The Evil Empire has only been in 7 overtimes going 3-4.  (And 3 of the 7 were last year!) Aggie has been in 20 overtimes going 14-6.
  • Legal stuff: Trump's impact on the Supreme Court was felt yesterday where the Court did a 180 from just a few years ago and will now allow juveniles to be sentenced to life without parole. Justice Sotomayor was not pleased:

  • Time which has passed since the Wise County Sheriff's Office has failed to solve the murder of Lauren Whitener in her home at Lake Bridgeport: 658 days.
  • Messenger: Above the Fold


Random Thursday Morning Thoughts

The Duke Lacrosse Case is one of the wildest cases of false accusations by a prosecutor in our nation's history, and I can't recommend enough ESPN's 30 for 30 documentary, "Fantastic Lies." Concerning an update for my bullet point above: "In November 2013, she was found guilty of second-degree murder after she stabbed boyfriend Reginald Daye, who died 10 days after. She argued that she acted in self-defense, fearing that Daye would kill her. She was sentenced to 14 to 18 years in prison."

  • I don't know what LeBron James was thinking by targeting the officer involved in the shooting of the teenage girl in Columbus, Ohio. If you want to express concern over whether deadly force was the only option, then fine. But the post below, which he quickly took down, is out of character for him. He doesn't make mistakes like this. 

  • There's a weird aspect about Derek Chauvin's conviction of the greatest charge which I finally completely understand.  
    • He was convicted of "Felony Murder" on the greatest count. That is kind of a weird law that says if you commit a felony and someone dies as a result of the felony, even if you didn't intend for them to die, you're guilty of murder. He was never charged with intentional murder, so even the prosecutors believed Floyd's death was unintentional. 
    • Here's an example of Felony Murder: Say you intentionally commit the felony offense of arson by setting a home on fire but someone dies inside the home even though you didn't know anyone was inside. In that example the "underlying felony" was arson but you've committed "Felony Murder" even though you didn't intended to murder anyone. 
    • In Chauvin's case, the "underlying felony" was "Third Degree Assault" which, when coupled with the unintended death of Floyd, gets you to Felony Murder.  From the Court's Charge:

    • So what exactly is this underlying felony of "Assault in the Third Degree"?  Third degree assault in Minnesota means you intended to commit misdemeanor assault (intentionally cause someone "bodily harm" which is defined as just "pain", that's it) but the result of your misdemeanor assault led to "substantial bodily injury" even if you didn't intend to commit substantial bodily injury.  That's the real kicker in this case. Here the jury found that Chauvin intended to commit simple assault (kneeling on Floyd's neck causing him pain) but they also found that it led to "substantial bodily injury" even if unintentional.  That gets you to an underlying felony of Third Degree Assault. (If Floyd would have lived but had been, say, in a comatose state because of being deprived of oxygen, the greatest charge would have faced was a Third Degree Felony Assault.)
    • Here's how Third Degree Assault was explained to the jury. Simple Assault + Unintended Consequence of Substantial Bodily Injury = Third Degree Felony: 

    • So step #1 is an intended misdemeanor assault got turned into unintended felony assault under Minnesota law.
    • But step #2 is that the case got elevated from Third Degree Assault to Felony Murder by yet another unintended consequence: Floyd died as a result of the Third Degree Assault. 
    • So you have Intentional Misdemeanor Assault + Unintended Consequence of Substantial Bodily Injury => Third Degree Assault + Unintended Consequence of Death => Felony Murder Charge.  
    • That's all a little crazy, right? Sure, no one cares when those "dirty criminals" are charged with nutty laws like this, but it looks a little different when the charge is used against a police officer.
    • Note: Most states, like Texas, require the "underlying felony" in Felony Murder to be a felony other than an assault. Arson as an underlying felony makes sense. Robbery makes sense. Burglary makes sense. If someone dies, even if unintended, while you commit one of those felonies then you rightly bought yourself a charge of Felony Murder. But Minnesota is different. I found this, and it explains it pretty well: 

    • Question: Do you think the jury understood any of this? 
  • I'd pay money to watch this. (Side note: Marjorie Taylor Greene hasn't read the 14 pages of the "Green New Deal" which she constantly complains about?)

  • Over the past couple of weeks, I've noticed several references to "carjackings" in the news in the metroplex. And yesterday I heard firsthand of an attempted hijacking of someone I know in Denton. Examples: 

  • Something doesn't seem right to make it a crime to simply "watch" something without doing anything to encourage or promote it. 

  • A former Tarrant County prosecutor and district judge gets a quote in The Washington Post. He also represented Roy Oliver, the Balch Springs police officer who was convicted of murder. 

  • It looks like the Texas transgender bill will die in committee, and hard-liners are not happy

  • The UT Band will be required to play The Eyes of Texas this fall, but UT is also forming "another" marching band where the members won't be subject to such a requirement. I have no idea how this will work. When does this "other" band perform? And is it just an "additional band" or an option for an "alternative" band? I mean, do you have to participate in the main band to be able to also join the new band? 

  • You got to admit that the scheme is pretty impressive. 

  • It's NFL Draft time an my annual irritation of people saying, "You should draft the best athlete available" regardless of need. Sheesh. The draft is a crapshoot. You don't know who the best athlete is. Heck, most of the time NFL teams don't even know who the best quarterback is. 


Random Wednesday Morning Thoughts

We are in a bit of a drought right now, but I'm guessing Gov. Abbott is a little gun-shy about 
bringing up anything having to do with the weather.   

  • Derek Chauvin notes:

    • It can't be stressed enough how Chauvin would not have been convicted but for a teenager with a cellphone video.  

    • If she had not had filmed it, the cops would not only have tried to cover it up but they would have also gotten away with it. In fact, that's exactly what they tried with their first press release:

    • The person in charge of that press release is paid $110,000 a year in taxpayer money to spin the news in favor of the police. He didn't review the bodycam before he issued the above statement. 
    • Loyal followers of conservative DFW talk show host Mark Davis weighed in on the verdict: 

    • I don't understand how Chauvin can be convicted of three different felonies for the same act. In fact, I know he can't. Texas courts certainly wouldn't allow it under their interpretation of the Double Jeopardy Clause. (Minnesota law allows for Chauvin to only be punished for the most serious offense, but I still don't think he can receive multiple convictions for the same assault against he same person.) 
    • A lot of the national media focused on how this seems to be the "first" case with nationwide coverage where an officer has been convicted for wrongdoing. Maybe so, but we are used to it around here. We've had the recent convictions of Amber Guyger and Roy Oliver. And we've got the prosecution of Aaron Dean for the death of Atatiana Jefferson in Fort Worth already in the hopper.  
    • The judge in Chauvin's trial will take a mind numbing eight weeks before assessing the sentence. This is a reminder of how Texas is one of few states that allow a defendant to choose the jury to assess punishment. I think the only ones which allow it besides Texas are Arkansas, Kentucky, Virginia, Oklahoma and (kind of) Missouri.
  • As we were awaiting the Chauvin verdict, an Ohio officer shot a 15 year old girl four times in the chest yesterday. It's on bodycam video as well, and the police released it last night.  It appears the girl had a knife and was attacking the girl in pink so there probably won't be an uproar about this. (Then again, I was wrong about my predicted reaction to the Chicago shooting of the 13 year old.)

  • Texas Democrat out of Williamson County: 

  • Remember that horrible Burleson case last week where a police officer was shot during a 4:00 a.m. traffic stop and then hours later a carjacking victim showed up at the Joshua PD station with gunshot wounds and later died? Well we now know how she got there: The alleged shooter
    "crashed through" the PD's "back gate" and dumped her out. He then drove off and was arrested in Gainesville hours later.  

  • Folks, we're never going to even crack 50%. Heck, I'm no sure about even 40%. And it's not because of lack of availability of the vaccine. Nope. There are more than half of us who have made the voluntary decision not to get the vaccine. This makes my head explode. (Chart source.)

  • Not that anything would ever happen, but churches can lose their tax-exempt status by expressly endorsing political candidates. With that in mind, watch how Gateway Church Pastor Robert Morris expertly skirted the rule last Sunday.  He even put up the names of church members who were running for office up on the big screen while not endorsing them. 

  • What's this? (@PrezFarmer is the Weatherford College president who called the upcoming announcement a "game changer" this morning.)  

  • Messenger: Above the Fold (Link fixed)


Random Tuesday Morning Thoughts

I wouldn't know "Judas" now if I heard it. And I had forgotten that I was all 
over Trump even way back then. 

  •  Derek Chauvin trial thoughts since I finally saw the Court's Charge. 
    • That Charge is here.  Haven't I preached for years that the jury instructions are the most important part of a criminal trial? As with most factually unusual criminal cases, the Charge in this case is unnecessarily long and confusing.  The jury won't understand it.
    • There are three counts. Count I carries with it a maximum of 40 years, Count II carries with it a maximum of 25 years, and Count III carries a maximum of 10 years. 
    • But before we look at each Count, here is Hot Opinion #1: The Trial Strategy That Wasn't. 
      • The only way Chauvin wins this case is to take the position that "I was out there doing my job. And I was doing what I honestly thought was reasonable and necessary. Yes, the man died on me. I'm very, very sorry for that. But, if I heard the doctors correctly, it looks like no one else would have died by the technique I used. But he did. I'm sick over that that. And  I would take full criminal responsibility for it if my actions had been unreasonable. But they weren't. I was trying to protect the community and something horrible happened." 
      • I would have had Chauvin testify and be like Colonial Jessup from A Few Good Men but a sympathetic Col. Jessup. Give me the Jessup as he sat at the table with Tom Cruise early in the movie. "You need me on that wall." Give me that, just tone it down a whole lot. 
      • And you don't let the prosecution get away with being all High and Mighty. To paraphrase Jessup, "You sleep under the blanket of the very [protection] that I provide, and then questions the manner in which I provide it?" Just get that message across without being Jack Nicholson crazy. 
      • All of that might not work, and probably shouldn't, but a version of that defense is something that you have to run with. It's all you've got. 
      • But Chauvin's lawyer is objectively bad. For crying out loud, he started off his closing argument with, "I'm going to apologize if I get a little long winded." Good lord, man. Why don't you just announce that you intend to bore them to death? He's an idiot. 

    • Now to the Jury Instructions. If the jury were to follow them, then causation is a done deal in favor of the State on all of the counts.  Any drug use or health issues of George Floyd becomes irrelevant. As I read it, unless Floyd would have died on the spot even without a knee on his neck, causation isn't an issue. 

    • But the defense lawyer is a moron and has spent much of his time fighting causation instead of stressing the reasonableness of Chauvin.  
    • Now with causation and lawyer bashing out of the way, let's look at each Count. 
    • Count I: The greatest offense the jury can select is Second Degree Murder, and it is shockingly easy to get to. 
      • All the State has to prove is that (1) Chauvin intended to cause Floyd pain -- an "assault", and (2) that "substantial bodily harm" which resulted in death occurred even if Chauvin didn't intend to cause substantial bodily harm. That's crazy that is all that has to be proved. Once again, it's intentional assault (causing "pain") + substantial bodily injury that results in death even if unintended. It's so nuts that the jury might ignore that part of the Charge (assuming they understand it.) That happens all the time despite their taking an oath.  They will ignore crazy laws that make no sense to them. 
      • But let's stay with  the first part -- the "assault" part -- for a moment. Doesn't an officer always intend to cause pain to an arrestee as the natural part of the job? That happens all the time and we don't have any problem with it, right? If a person isn't willingly cooperating then reasonable force can always be used to get him to comply, and that force will 99% of the time cause pain. So isn't an assault occurring all the time? Probably. But cops are never charge with causing an assault. Why? That brings us to the critical defense which applies in this case to all of the Counts. The following is taken directly from the charge: 
      • And even though the Charge refers to it as a "Defense", that's misleading. Chauvin doesn't have to prove he acted reasonably. No. The State has to prove he acted unreasonably. And they have to eliminate all reasonable doubt about that. That's a big deal. 
      • As in all the Counts, Chauvin shouldn't argue causation. He should argue his reasonableness.
    • Count II is "Third Degree Murder." Honestly, this seems harder to prove than Second Degree Murder.
      • Here's the definition taken straight from the Charge: 

      • It does not define "eminently dangerous."
      • It does not, incredibly, define  "a deprived mind."
      • Heck, it would have been helpful to even define "evincing" (which would be nice because I didn't exactly know what it means.) 
      • But regardless of the vague language, the State still has to overcome the "defense" of justifiable force by a police officer.  It's as important to Count II as it is to Count I. 
    • The final option for the jury is Count III "Manslaughter in the Second Degree." 

      • You know, the jury might lock on to that. There's no intent to cause harm, and they will like the word "negligence."  
      • But once again, the State has to over come the defense of reasonable force by a police office.  Can you be reasonably negligent? That doesn't make sense.  Did I mention the charge was confusing? 
    • So what's going to happen? Seriously, you could put these facts on a Law School exam and ask what crime, if any, did Chauvin commit. And a student could choose Count I, Count II, Count III or "Not Guilty" and still get an A on that exam. Any choice can be legitimately and intellectually argued. That makes this a dicey, dicey criminal prosecution. 
    • My wild guess: They convict him on Count III, Manslaughter. It will be a compromise made in all of the confusion. But don't bet the house on that. 
  • COVID denier Ted Nugent has tested positive. 

  • Lt. Gov. Dan Patrick says there are not enough votes in the Senate to pass Constitutional Carry that made it through the House. 
  • The book is great. The trailer looks cheesy. 

  • I reading the Washington Post article on "what happened to her", I was surprised to learn that she was a 14 year old runaway from Florida when the photo was snapped. She wasn't a fellow college student. When the photo hit the wire and appeared in photos all across the nation the next day, she was incorrectly identified as a "coed."

  • Jocelyn White, the first female meteorologist on metroplex TV has died at the early age of 68. Man, the male audience went gaga over her back in the day. 
  • This is about the only dumb thing that the judge has said in the Chauvin case. That ain't gonna happen: