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Crunchy Frog

(26,753 posts)
Tue Sep 11, 2018, 04:47 PM Sep 2018

Amber Guyger, when the National Review is calling you out, you're probably in deep shit.

Last edited Tue Sep 11, 2018, 06:29 PM - Edit history (1)

https://www.nationalreview.com/2018/09/amber-guyger-botham-jean-shooting-police-must-face-impartial-justice/

Really surprised at some of the stuff they're saying.

Aside from the horrific details of the shooting itself, there are already troubling indications that Guyger’s identity as a police officer is providing her with actual, undeserved advantages in the prosecution of this case.

First, police sources are reportedly indicating that Guyger may actually try to raise the fact that Jean didn’t obey her commands as a defense. It’s not a defense. The moment she opened the door to an apartment that wasn’t her own, she wasn’t operating as a police officer clothed with the authority of the law. She was instead a criminal. She was breaking into another person’s home. She was an armed home invader, and the person clothed with the authority of law to defend himself was Botham Shem Jean.

Which brings us to the second troubling element of the story. So far, Guyger is only charged with manslaughter. But all the available evidence indicates that she intentionally shot Jean. This wasn’t a warning shot gone awry. The pistol didn’t discharge during a struggle. She committed a crime by forcing open Jean’s door, deliberately took aim, and killed him.

Texas law defines murder quite simply as “intentionally or knowingly caus[ing] the death of an individual.” Manslaughter, by contrast, occurs when a person “recklessly” causes death. Guyger’s warning and her deliberate aim scream intent. 



Not defending the NR here, and of course they always have a hidden agenda, but I still found it pretty remarkable that they're suggesting that she committed actual murder rather than manslaughter, and calling her out on her attempts to use victim blaming as her defense.

I'm hoping that this case has gotten so high profile that they won't have a choice about rendering real justice.
17 replies = new reply since forum marked as read
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1. High Profile Means Little
Tue Sep 11, 2018, 04:52 PM
Sep 2018

Plenty of "high profile" cases don't result in ANY justice. Just think about it for a second. The past few years are littered with examples of cases protested vehemently, which resulted in nothing.

DFW

(54,944 posts)
2. I'm sure she didn't consent to any testing for alcohol or stronger drugs
Tue Sep 11, 2018, 04:54 PM
Sep 2018

Until at least 36 hours after the shooting, a lot of water and many trips to the toilet.

 
3. Don't Think That Played A Part
Tue Sep 11, 2018, 04:57 PM
Sep 2018

I had read they tested her shortly after incident. Can't say you can believe anything that the police say though.

But I think she was stone cold sober. Just my opinion.

DFW

(54,944 posts)
4. That isn't exactly reassuring, of course
Tue Sep 11, 2018, 05:04 PM
Sep 2018

She wandered into a stranger's apartment stone sober and started blazing away? If she wandered into her victim's apartment by accident while stone sober and shot the unarmed resident dead, then there are deeper medical issues with her than have been so far addressed.

 
5. Nope, Don't Think So
Tue Sep 11, 2018, 05:09 PM
Sep 2018

I tend to believe she was just a power hungry, gun toting cop, who perhaps got confused and panicked. When you and I panic, we don't pull out a gun and start shooting. But not all cops are built that way. Remember, their lives are ALWAYS in danger, 24/7. Everybody they encounter is a threat.

There are plenty of examples of cops who shoot first and ask questions later. That's their training.

When you make a mistake with a gun, it's still a "mistake." Only with a gun, it often results in someone's life being taken away. Police live by the motto, "oh well, at least it wasn't me."

 

bettyellen

(47,209 posts)
7. There are reports today that she'd often complained to him about noise in his apartment- including
Tue Sep 11, 2018, 05:21 PM
Sep 2018

The morning of the murder. I’m wondering if it wasn’t the first time she banged on his door?

qazplm135

(7,447 posts)
8. possible but if she's stone cold sober
Tue Sep 11, 2018, 05:22 PM
Sep 2018

how does she miss the giant red welcome mat in front of the door?

Wouldn't that clue in someone with all of their faculties that they ain't in the right spot, or at the very least, that something is off.

Wouldn't that cause you to at least glance at the apt number?

A lot of unknowns out there on this, and hopefully there's a fair trial so we get some explanations/evidence/answers.

whopis01

(3,559 posts)
17. Drugs and alcohol would actually provide an explanation
Wed Sep 12, 2018, 10:19 AM
Sep 2018

Perhaps not one good enough to get you out of legal responsibility but

“I was drunk and high and confused and accidentally went in the wrong apartment and shot and killed him”

sounds slightly better to me than

“I was perfectly sober, went into someone else’s apartment and shot and killed him”

Crunchy Frog

(26,753 posts)
11. I've become extremely cynical too.
Tue Sep 11, 2018, 05:52 PM
Sep 2018

Still, I have to try to have some hope.

The more and heftier the voices on the side of justice, the more likely that she won't just be able to walk away from this.

moriah

(8,312 posts)
9. I suspect it helps Botham was a Harding graduate, etc.
Tue Sep 11, 2018, 05:34 PM
Sep 2018

When you can't paint the dark foreigner as a criminal or illegal immigrant, but Harding University is instead releasing video of him in the lead in the choir in a very red state....

Harder to blame the victim.

 

DoctorJoJo

(1,134 posts)
13. If This Hideous Excuse for a Police Officer Doesn't Get Charged With Murder, ...
Tue Sep 11, 2018, 06:54 PM
Sep 2018

... there is no justice in this world! Next we'll hear it being blamed on it being her time of month! Wrong floor, prior confrontations, it all adds up to MURDER in the 1st!!

Cha

(299,478 posts)
15. NR makes a compelling case.. I hadn't
Wed Sep 12, 2018, 04:02 AM
Sep 2018

thought of it in those exact terms. But, it makes sense to me.. and I'm sure they have lawyers around there who know the law.

It is amazing they're taking the victim's side.

I'm hoping the same, Crunchy Frog.. I'm glad I saw your OP.

First, police sources are reportedly indicating that Guyger may actually try to raise the fact that Jean didn’t obey her commands as a defense. It’s not a defense. The moment she opened the door to an apartment that wasn’t her own, she wasn’t operating as a police officer clothed with the authority of the law. She was instead a criminal. She was breaking into another person’s home. She was an armed home invader, and the person clothed with the authority of law to defend himself was Botham Shem Jean.

Which brings us to the second troubling element of the story. So far, Guyger is only charged with manslaughter. But all the available evidence indicates that she intentionally shot Jean. This wasn’t a warning shot gone awry. The pistol didn’t discharge during a struggle. She committed a crime by forcing open Jean’s door, deliberately took aim, and killed him.

Texas law defines murder quite simply as “intentionally or knowingly caus[ing] the death of an individual.” Manslaughter, by contrast, occurs when a person “recklessly” causes death. Guyger’s warning and her deliberate aim scream intent. She may have “recklessly” gone to the wrong apartment, but she very intentionally killed Jean. There is a chance that the grand jury will increase the charge to murder, so the early manslaughter charge is tentative. But I ask you: If Jean had mistakenly gone to Guyger’s apartment and then gunned her down in cold blood after demanding that she follow his commands, would he face a manslaughter charge?

https://www.nationalreview.com/2018/09/amber-guyger-botham-jean-shooting-police-must-face-impartial-justice/

moriah

(8,312 posts)
16. It requires a close reading of culpable mental state and justification
Wed Sep 12, 2018, 05:39 AM
Sep 2018

Also, a close reading of the defense of "mistake of fact" and differentiating it from "mistake of law".

A person is presumed justified when they:

(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment


The "justification" chapter here suggests "occupied" has a different meaning from "habitation", as only habitation is specifically defined. There still could be argument about it meaning a "customary dwelling", where they lived.

I personally would argue, though I'm not sure if the Texas Supreme Court has made case law distinguishing between the meaning of the statute in these two scenarios, but "mistake of law" could exist if Texas defines "occupied habitation" as meaning protecting the owner inside the habitation defending against intrusion as it is happening, or would actually cover storming into a house to be the Lone Ranger when you essentially have them trapped within.

You'd probably better be right about your legal right to enter the dwelling, would be my guess -- unlikely to be charges if a real home intruder is killed, but it's a "taking unnecessary chances" scenario even armed to enter your own empty-except-for-an-intruder home to deal with them. They could be armed, too.

Which would totally negate her "mistake of fact" defense, that she believed that apartment to be her "castle".

But let's go to murder. There's a note in the beginning of the penal code chapter.

(a) In this section:
(1) “Adequate cause” means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.


The two easier ways to define murder:

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.


There's no doubt she intended to cause Botham Jean serious bodily injury by shooting him, even if her intent is going to be claimed to not be to kill by her allegedly rendering aid. Also, she did commit breaking and entering, though that again may go to a "mistake of fact" defense to that part.

So we look at "culpable mind states":

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.


It's easier to argue her conscious objective was to seriously injure him, and he died as as the results of an act clearly dangerous to human life, and it caused a death.

That note about her reasonably being potentially startled enough if she opened the door and saw an unexpected person would probably make this qualify:

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.


So, second degree murder would be an appropriate charge. But that's affirmative defense after conviction for plain murder -- a high bar.

I think getting a warrant on recklessness was probably wisest at first, and a grand jury should decide if murder should be the heading charge. Then the jury can decide just what they feel her mindstate was.

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