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"I sincerely regret the loss of the life of Ms. Frago"
June 11, 2013 4:29 AM   Subscribe

Jury acquits escort shooter. Texas Penal Code s. 9.42 has been interpreted to possibly allow the shooting of sex workers who accept money at night but do not then perform sexual services, and Ezekiel Gilbert was therefore found to have the legal right to shoot at a sex worker over a $150 dispute. This interpretation of the defence of property has come under some criticism, and although the jury may have reached their decision on a different ground, the possibility of this defence under state law appears to be sound.
posted by jaduncan (167 comments total) 12 users marked this as a favorite

 
I just.......really feel like things have gone seriously off the rails lately. This is simply incredible.
posted by nevercalm at 4:32 AM on June 11, 2013 [13 favorites]


If you're reading this, don't skip the last link.
posted by pipeski at 4:38 AM on June 11, 2013 [56 favorites]


Eventually, these states that idolize the Wild West aesthetic will become what the aspire toward, and their citizens will be so surprised that it's not the paradise they expected.
posted by xingcat at 4:39 AM on June 11, 2013 [10 favorites]


A misreading of the verdict in an upsetting Texas case has gone viral, since Gawker claimed: “Texas Says It's OK to Shoot an Escort If She Won't Have Sex With You.” Texas law does not say that, and the jury didn’t either

From the last link.
posted by vacapinta at 4:41 AM on June 11, 2013 [12 favorites]


Yeah, the last link is important. The jury found that this was about the fact that she had stolen his money, not that she had withheld sex. There seems to have been a third party involved in the incident as well which isn't always mentioned in these stories. Not that it justifies murder, but the headlines on this case aren't telling the real story.
posted by roomthreeseventeen at 4:41 AM on June 11, 2013 [2 favorites]


Yeah, if the prosecutors had charged him with manslaughter or the Texas equivalent, he'd be behind bars. They were overeager for a big conviction, and it bit them.

The defense lawyers on the other hand, are scum incarnate. One of the few instances where having no representation would almost have been better for the defendant.
posted by Slap*Happy at 4:42 AM on June 11, 2013 [3 favorites]


The jury found that this was about the fact that she had stolen his money, not that she had withheld sex.

Well (as the last article states) we don't know. One of the things that surprised me about this case is that a (possibly illegal/immoral) contract was formed and the money was given freely.

The most striking thing here is that the judge did not direct that the defence of property claim was wrong as a matter of law, meaning that it rested only on the findings of fact.
posted by jaduncan at 4:51 AM on June 11, 2013 [4 favorites]


> Eventually, these states that idolize the Wild West aesthetic will become what the aspire toward, and their citizens will be so surprised that it's not the paradise they expected.

They're not expecting paradise. They're expecting validation of their fear of everybody around them, or of their belief that the only human relationship is defined by power, or by money.
posted by ardgedee at 4:52 AM on June 11, 2013 [21 favorites]


Isn't it generally the case that if someone dies during the commission of a crime (soliciting a prostitute), that you are guilty of murder?
posted by dirigibleman at 4:54 AM on June 11, 2013


Looking it up, apparently it only applies if you are committing a felony.

This still doesn't change Texas' insane law that you can gun someone down over a property crime when there is no threat to life or limb (as long as it's nighttime, of course).
posted by dirigibleman at 5:01 AM on June 11, 2013 [6 favorites]


You have to be fucking kidding me.
posted by Old'n'Busted at 5:03 AM on June 11, 2013 [3 favorites]


Isn't it generally the case that if someone dies during the commission of a crime (soliciting a prostitute), that you are guilty of murder?

The rule is generally regarding people who die in the commission of a dangerous felony. In Texas solicitation is a misdemeanor, it looks like. There also tends to be a requirement that the felony be inherently dangerous; I have no idea if Texas imposes this requirement. It's the more common rule in 2013, but with the caveat that Texas laws may well be crazier than average.
posted by Bulgaroktonos at 5:03 AM on June 11, 2013


Why would the judge not instruct the jury that they could acquit on murder but still find the defendant guilty of voluntary manslaughter? My understanding is that this instruction is mandatory when the only charge presented carries a potential death sentence. The last article merely says the judge "appears" to have said nothing to the jury about lesser included offenses. Is this acceptable because (as seems to be the case) neither the prosecution nor the defense want such instruction given to the jury?

Also, the combination of the circumstances of this case and the awfulness of the Texas shoot-first-questions-later law is just a real shit sandwich of awful. Jaduncan's point that the judge did not take issue with the defense's legal theory regarding defense of property is just chilling.
posted by [expletive deleted] at 5:06 AM on June 11, 2013 [2 favorites]


Remember when Texas was going to secede from the US? Why didn't that happen?
posted by tommasz at 5:06 AM on June 11, 2013 [8 favorites]


I read the last link. The case may not be the kind of absolutely flipping insane that the headlines suggest, but it's still absolutely flipping insane in its own right.
posted by The Underpants Monster at 5:07 AM on June 11, 2013 [4 favorites]


When it's Halloween in Texas do you get shot for taking two candies from the bowl?
posted by BrotherCaine at 5:09 AM on June 11, 2013 [10 favorites]


I was about to say that surely the Texan law doesn't really mean that you can kill someone absconding with your property, but yes. Yes it does.
posted by Joe in Australia at 5:12 AM on June 11, 2013 [6 favorites]


My understanding is that this instruction is mandatory when the only charge presented carries a potential death sentence.

The article says he faced life in prison, not the death penalty, so the lesser included offense instruction is not required (unless Texas law requires it which I assume it does not).
posted by Bulgaroktonos at 5:14 AM on June 11, 2013


Not only does the post misrepresent the validity of the "Texas law says that you can shoot a non-performing alleged sex worker at night" idea, but by a wild coincidence, I sort of know the attorney who wrote the last link. She's delightful, and very very very smart.

From Ms. Dunlap's blog post, which everyone should read:
This story looks very different depending on whether you are looking at the law or at the reporting. Remember reporting? People used to get paid to go find facts and tell the public about them. That happens a lot less now. With many commentators and too few reporters, an alarmist story can have a long life in the echo chamber.
One of the things that surprised me about this case is that a (possibly illegal/immoral) contract was formed and the money was given freely.

People carry out facially invalid/void contracts all the time. It would only be surprising if a court had actually upheld such a contract.

The jury found that this was about the fact that she had stolen his money, not that she had withheld sex.

No, the jury acquitted the shooter because the murder charge was not proven beyond a reasonable doubt. Prosecution overcharged. Defense raised the reasonable theory that the shooter had not "intentionally or knowingly" caused the death in question, but had instead shot at the victim's tires, meaning that the victim's death had not been caused intentionally or knowingly.

The defense did also raise the silly and offensive "defense of property at night" argument, but that doesn't mean the jury thought the argument was worth a damn. Defense counsel often presents multiple alternative legal arguments.

Remember, at the end of the day, defense doesn't really need to prove anything. They just have to punch large enough holes in prosecution's story.

The last article merely says the judge "appears" to have said nothing to the jury about lesser included offenses. Is this acceptable because (as seems to be the case) neither the prosecution nor the defense want such instruction given to the jury?

It's not just that the judge said nothing about lesser included offenses. The jury could not have convicted on manslaughter unless that option had been provided to them. The judge was entitled to include manslaughter, but the judge was also not obligated to do so. It is not the judge's job to ensure that every defendant gets convicted of something.

Ultimately, it was up to the prosecution to charge the shooter properly. I have no clue why they bungled this so badly.

Jaduncan's point that the judge did not take issue with the defense's legal theory regarding defense of property is just chilling.

The prosecution may have dropped the ball by not strenuously objecting to this defense in the first place. There are limits as to the manner and timing of judges saying "WAIT A MINUTE, THAT'S STUPID AND WRONG".

However, I'm having a hard time trusting the reporting on this case. Would some kind soul with the soul of an angel please pull up some primary sources on this case?
posted by Sticherbeast at 5:26 AM on June 11, 2013 [44 favorites]


I was about to say that surely the Texan law doesn't really mean that you can kill someone absconding with your property, but yes. Yes it does.

Oh, and yes, that is a bad statute right there. There's enough to get mad about here in the real world - we don't need to exaggerate.
posted by Sticherbeast at 5:29 AM on June 11, 2013 [4 favorites]


I love that the law specifically states that this applies to thefts at night.

It troubles me how many parts of the United States resemble one of those backwater outposts from Firefly.
posted by dry white toast at 5:31 AM on June 11, 2013 [4 favorites]


Thank you for posting that last link. I have zero problem with Texas's property defense laws, but I was very confused how the jury could have seen this as defense of property. There can obviously be no property interest in an expectation to receive an illegal service, and the law generally doesn't regard money or goods which changed hands pursuant to an invalid contract to have been stolen in the criminal sense; there is a special case for when the contract was fraudulent ab initio (for example, when you receive goods in exchange for a check that you know will bounce), but usually the law specifically reduces the self-help remedies in those cases.
posted by MattD at 5:31 AM on June 11, 2013 [2 favorites]


However, I'm having a hard time trusting the reporting on this case. Would some kind soul with the soul of an angel please pull up some primary sources on this case?

The case was heard in Bexar county. I don't think they publish their transcripts. I tried their website but no luck.
posted by His thoughts were red thoughts at 5:39 AM on June 11, 2013


How come it isn't a felony to start shooting in the street?

The felony murder rule generally doesn't apply to felonies that are the same act as the murder. If I commit a felonious assault that results in your death it's not a murder because otherwise the distinction between felonious assault and murder would be essentially abolished, and that's not a particularly logical outcome.
posted by Bulgaroktonos at 5:39 AM on June 11, 2013 [1 favorite]


so if I leave my tv on the curb at night and someone comes by, picks it up and starts walking away with it technically Texas law affords me free reign to shoot them?
posted by any major dude at 5:44 AM on June 11, 2013 [1 favorite]


I would imagine that if the curb is not on your property, then maybe not.

But who needs hypotheticals when the reality is so bonkers? You can shoot someone in TX who steals from you, even if they don't use weapons or force or violence or threat of same. That's nuts.
posted by rtha at 5:46 AM on June 11, 2013 [1 favorite]


If she earned the money by going on the date and he shot and killed her trying to get the money back, how is that not murder while committing a robbery?
posted by bleep at 5:49 AM on June 11, 2013 [5 favorites]


Slap*Happy: "The defense lawyers on the other hand, are scum incarnate. One of the few instances where having no representation would almost have been better for the defendant."

How could this have worked out better for the defendant if he'd had no lawyer?
posted by Mitheral at 5:55 AM on June 11, 2013 [10 favorites]


so if I leave my tv on the curb at night and someone comes by, picks it up and starts walking away with it technically Texas law affords me free reign to shoot them?

Probably not. Things left on the curb are typically considered to be abandoned property.

How about this reductio ad absurdum: you could walk around at night carrying a box filled to the brim with lollipops. You walk unsteadily, like a drunk walrus being frogmarched. The box says "SUGAR-FREE LOLLIPOPS", but the "SUGAR-" is on a side panel of the box, so that the box appears to read "FREE LOLLIPOPS" when seen from the front. Lollipops constantly spill from your box. However, you are also constantly muttering, "oh dear me, I didn't mean to drop that lollipop on the ground, that's not yours, oh dear, please stop taking those".
posted by Sticherbeast at 5:55 AM on June 11, 2013


> The defense lawyers on the other hand, are scum incarnate. One of the few instances where having no representation would almost have been better for the defendant.

From the last link:
As Professor Michael W. Martin of Fordham Law’s Federal Litigation Clinic reminded me: “If the law allows the defense, the lawyer must use it, if it is viable, unless there is a good strategic reason not to. Otherwise, it is ineffective assistance of counsel. If the lawyer feels like he is ethically barred from using a legal, viable defense, he should ask to be relieved.”
Not sure why you think the guy's lawyers were bad.

And it looks like this had nothing to do with the money or sex. It was that he didn't actually shoot at the woman. He shot at her car and that doesn't fit the definition of the crime. If you want to get upset, get mad at the prosecutor for going after a charge he couldn't sustain.

Also, gawker and jezebel suck.
posted by cjorgensen at 5:55 AM on June 11, 2013 [21 favorites]


Gee, gawker posts inflammatory, incorrect linkbait? I'm shocked... shocked.
posted by jenkinsEar at 5:59 AM on June 11, 2013 [6 favorites]


Yes, it's an incredibly bad bit of law. A slightly-longer reading indicates that there are two related sections. Section 9.42, to which I linked earlier, is about using deadly force to protect property. It only applies during the night, for some reason, and it doesn't allow the use of deadly force to prevent fraud. If you have been defrauded the relevant law is probably the preceding section, Section 9.41. That law applies during the day as much as at night, and does allow the use of force (not "deadly" force) to recover "tangible, movable property" of which you have been defrauded as long as the force is used "immediately or in fresh pursuit after the dispossession".

So: you can use "force" to protect property or to recover it, and at night you can use "deadly force" to protect your own property, or to recover it from thieves and burglars (but not defrauders), as long as you do it straight away. I find it hard to characterise the alleged non-prostitution as anything other than fraud, which means that he shouldn't have been able to use that defence.
posted by Joe in Australia at 5:59 AM on June 11, 2013 [1 favorite]


I have only just started watching Deadwood and I have to say that this cocksucker is fucking bullshit.
posted by longbaugh at 6:03 AM on June 11, 2013 [3 favorites]


Can he be charged for manslaughter now? or would that be double jeopardy? It seems to me that the core problem was that the prosecution did not go for a manslaughter charge.
posted by MisantropicPainforest at 6:05 AM on June 11, 2013


It was that he didn't actually shoot at the woman. He shot at her car and that doesn't fit the definition of the crime.

Maybe he didn't even shoot at the car. Maybe he was out at night shootin' varmints—something Texans have been known to do—and he just accidentally put a bullet in the tire of someone's car.

Hey, it could happen.
posted by octobersurprise at 6:06 AM on June 11, 2013


If she earned the money by going on the date and he shot and killed her trying to get the money back, how is that not murder while committing a robbery?

He didn't shoot her in an attempt to get the money back, and he wasn't convicted of murder because it wasn't clear that he intended to kill her.
posted by MisantropicPainforest at 6:06 AM on June 11, 2013 [2 favorites]


Hey, it could happen.

Sure, and the job of a defense attorney is to portray a narrative that shows his client is not guilty of the crime charged. I shouldn't have made it seem like he was shooting at the car tires. You're correct. I should have said the argument was that he was shooting at car tires and the jury went for it.

Who knows what really happened beyond the fact that a woman was shoot and died and the person responsible is not going to prison. I find this egregious, but to pretend like the facts of the case are in conflict with the law is silly. It's a stupid fucking law, but 12 people believe it was correctly applied.
posted by cjorgensen at 6:14 AM on June 11, 2013


So, can the prostitutes shoot the johns who refuse to pay? This brings debt collection services to a whole new level.
posted by caddis at 6:15 AM on June 11, 2013 [6 favorites]


Here in Minnesota, discharging a firearm at an occupied vehicle constitutes deadly force - but even then, I'm not sure that you'd have the mens rea for murder. I'm glad you posted that last link, the versions of this that I've seen never mentioned the "driving away in a car" bit.

I wish we knew why the prosecution hadn't charged manslaughter. Overconfidence, maybe?
posted by kavasa at 6:19 AM on June 11, 2013


[If we could steer clear of assigning personality traits to the entire population of a US state that would be nice, thanks.]
posted by goodnewsfortheinsane at 6:20 AM on June 11, 2013 [13 favorites]


You can honestly say that in this case, the defense argued that the defendant was justified in using deadly force to recover money he had given to an escort who would not sleep with him. The defendant was found not guilty. From the last link, lawyers will now be required to tell this to juries in similar cases.
posted by Garm at 6:20 AM on June 11, 2013 [1 favorite]


I find this egregious, but to pretend like the facts of the case are in conflict with the law is silly. It's a stupid fucking law, but 12 people believe it was correctly applied.

Wait wait wait wait wait. Surely you don't find it silly that Texan prosecutors actually have to prove an intentional/knowing mens rea for a murder charge? I would imagine that most people would find that to be an eminently reasonable aspect of the criminal justice system.

If we're arguing over whether he shot at her tires or her person, then that's a question of facts, not law.
posted by Sticherbeast at 6:20 AM on June 11, 2013 [5 favorites]


Last link should have been the first link.
posted by MoonOrb at 6:24 AM on June 11, 2013 [5 favorites]


Not sure why you think the guy's lawyers were bad.

Because they put forward a defense that was offensive and repulsive and contrary to law, and could have influenced a jury against their client.

The only thing that saved his bacon is that the jury decided to rule correctly and fairly on the question of his intent - he didn't mean to shoot her, and he didn't actually shoot her. Her injury was caused by shrapnel caused by the shot - he is responsible for her death, and he should go to jail, but for manslaughter.

In short, the prosecutors made a mistake, and that's what kept him out of jail, not the "shoot double-crossing hookers if you feel like it" defense.
posted by Slap*Happy at 6:24 AM on June 11, 2013 [7 favorites]


From the last link, lawyers will now be required to tell this to juries in similar cases.

I must have poor reading comprehension skills or was reading a different link than you, because I don't see that anywhere in the last link of the FPP.
posted by MisantropicPainforest at 6:25 AM on June 11, 2013 [1 favorite]


You can honestly say that in this case, the defense argued that the defendant was justified in using deadly force to recover money he had given to an escort who would not sleep with him. The defendant was found not guilty. From the last link, lawyers will now be required to tell this to juries in similar cases.

Not really. They would only be required to bring up such a defense if they thought the defense was viable and that there was no strategic reason not to. There is no evidence that the defense is viable. The fact that the man was acquitted does not mean that that defense worked. There are also plenty of strategic reasons to not use that defense - it could turn the jury against the defendant, it could give rise to extremely public and successful appeals on a number of grounds, etc.
posted by Sticherbeast at 6:25 AM on June 11, 2013 [2 favorites]


> so if I leave my tv on the curb at night and someone comes by, picks it up and starts walking away with it technically Texas law affords me free reign to shoot them?

Probably not. Things left on the curb are typically considered to be abandoned property.


what to stop me from saying he walked into my house and took it?
posted by any major dude at 6:35 AM on June 11, 2013


what to stop me from saying he walked into my house and took it?

Evidence, eyewitness testimony, perjury laws, etc. If your example requires lying, then you're not really addressing a problem with the law itself. You might as well take issue with how you can use force to fend off an assault, even though someone could theoretically lie about that.
posted by Sticherbeast at 6:40 AM on June 11, 2013 [4 favorites]


I feel like the first article is so well designed to get people outraged that by the time they get to the actual facts of the matter they aren't thinking straight.

Alternately: TEXAS. AMIRITE? BUNCH OF GUN-TOTING CRAZIES THINK IT'S OKAY TO KILL HOOKERS AND SHOOT PEOPLE WHO STEAL M&MS OUT OF THE CANDY BOWL ON YOUR END TABLE AS LONG AS IT'S AT NITE. WISH THEY'D JUST SECEDE ALREADY GUFFAW.
posted by chasing at 6:47 AM on June 11, 2013 [10 favorites]


Here's a more realistic case:

Imagine two parties meet at night for a transaction to exchange an illegal narcotic for money. When one of the parties does not provide the illicit substance after being given the money and attempts to drive away, the aggrieved party fires 4 bullets from their AK-47 at the fleeing car, striking one person at the base of their skull and killing them. Now, which jury acquits a murder charge in this case?

It's not hard to see why the prosecutors went with murder in the escort killing. I mean, it's unknowable but it's hard not to suspect that the jury's decision didn't come down to class/gender/race distinctions between the two parties in the escort murder case... and it's not hard to see the property defense argument as a stealth way of making the distinction between the parties clear to the jury implicitly. Odds are high that we'll see the same thing in the Zimmerman case, everyone's favourite murder killing of a black man.

This sort of sausage is daily fare in the U.S. justice system and I don't know how the officiants involved manage to eat it, but I guess it's a job.
posted by ennui.bz at 6:48 AM on June 11, 2013


Everybody read the last link!

"although the jury may have reached their decision on a different ground, the possibility of this defence under state law appears to be sound."

Not to spend a wall of text on this; the jury didn't convict of murder because they didn't think it was intentional. The jury, thinking Gilbert didn't intentionally kill Frago, thought he was not guilty of murder. He was charged with murder, and not with manslaughter. The problem is that the prosecution charged the defendant with a charge the jury found him to be not guilty of.

The defense counsel used a novel defense. There is nothing to indicate that this is what the jury found convincing.

There is nothing to see here but conjecture, and of course, a lot of breathless hyperbole.
posted by Xoebe at 6:50 AM on June 11, 2013 [6 favorites]


Wow. Ezekiel Gilbert. You wanted to pay a woman to fuck you (on Christmas Eve). When this woman said, no, I don't do that illegal thing and now I'm leaving, you shot bullets in her direction and this mother of a young child died a slow painful death 7 months later.

And you have the gall to talk about your "nightmares" and how you have to change the channel when you see guns on TV? And you thank "God" for your second chance?

You are a worthless subhuman who deserves to inherit every bit of the misery you're going to endure and I pray you don't harm anyone else because of the constant gnawing guilt you'll carry for the rest of your life you disgusting piece of shit.

I only just now realize I would make a terrible lawyer or judge
posted by Slarty Bartfast at 6:52 AM on June 11, 2013 [7 favorites]


Joe in Australia: "It only applies during the night, for some reason"
I find this fascinating. What is the legal definition of "nighttime" in Texas? This obviously matters as I have to decide what level of force to use against thieveses.

Ideally, I should have an app that shows with a glance on my phone's lock screen whether I may shoot to kill or if I should just scare them off.
posted by brokkr at 6:53 AM on June 11, 2013 [2 favorites]


FWIW, the argument that he aimed at and hit a moving vehicle's tires at night is laughable. He was shooting at the passenger compartment, I have very little doubt in my mind. People think that firearms accuracy is a LOT easier than it is. But the prosecution apparently did a bad job of showing that.

In a country where we have a principle of "innocent until proven guilty," getting mad at the defense or the jury is barking up the wrong tree. The prosecution must prove its case.

ennui - yeah I guess I get why they didn't charge manslaughter (maybe he said no to a plea to that before trial, even), but I'm pretty astonished that they couldn't convince the jury that hitting the tire was a miss (because it almost certainly was).
posted by kavasa at 6:57 AM on June 11, 2013 [2 favorites]


He was shooting at the passenger compartment

I'm pretty astonished that they couldn't convince the jury that hitting the tire was a miss (because it almost certainly was).


What makes you say this with such certainty?
posted by MisantropicPainforest at 6:59 AM on June 11, 2013 [2 favorites]


The only thing that saved his bacon is that the jury decided to rule correctly and fairly on the question of his intent - he didn't mean to shoot her, and he didn't actually shoot her. Her injury was caused by shrapnel caused by the shot - he is responsible for her death, and he should go to jail, but for manslaughter.

I really don't understand how shooting at someone doesn't constitute an intent to kill or seriously harm them. It's not like he fired a warning shot into the air and the bullet took a trajectory that just happened to hit someone, he fired at a moving car in full knowledge that the victim was riding within it. What was he trying to accomplish with this indisputably deadly force?
posted by RonButNotStupid at 7:01 AM on June 11, 2013 [8 favorites]


Not to spend a wall of text on this; the jury didn't convict of murder because they didn't think it was intentional. The jury, thinking Gilbert didn't intentionally kill Frago, thought he was not guilty of murder. He was charged with murder, and not with manslaughter. The problem is that the prosecution charged the defendant with a charge the jury found him to be not guilty of.

You don't actually know how the jury came to it's decision, and it seems that the judge allowed the property defense argument to be included, so it's just as fair to argue that it came down to property defense...

He was shooting at the passenger compartment

I'm pretty astonished that they couldn't convince the jury that hitting the tire was a miss (because it almost certainly was).

What makes you say this with such certainty?


It's a christmas miracle that the legal system re-enacts every day.

1) black man shoots ak-47 at black man over drug deal: murder
2) white man shoots ak-47 at latino prositute: not murder
3) son of judge shoots pistol at black man at close range: stay tuned!

Presumably, it comes down to weighing the intentionality of the bullets as they flew through the air... but it's not hard to see that community standards, when it regards to killings, have many subtleties.
posted by ennui.bz at 7:05 AM on June 11, 2013 [5 favorites]


The judge's decision to allow the inclusion of the property defense, absurd as it might seem on its face, might well be a defensible one from the perspective of avoiding an appeal later, had the accused actually been found guilty of murder. Had the judge suppressed it, it's not hard to imagine (had the jury's decision gone the other way) grounds for an appeal based on the possibility that it might have changed the outcome.

So allowing a novel defense, particularly if it seemed like a stupid but novel defense that was unlikely to actually convince the jury (which, at least from this remove, it does), might have been the most reasonable, conservative course of action for the judge, without alleging any sort of bias.

In general, it seems better for judges to err on the side of allowing novel defenses, even if they don't seem to be particularly good ideas, than to restrict defendants to only those strategies that the judge believes are good ideas, or happen to be conventional in a particular type of trial. That doesn't strike me as the judge's role.

There is no reason to think that the novel defense in this case actually worked; the fact that it was allowed and the defendant were acquitted are not necessarily linked. So we can't say anything either way about its usefulness as a strategy. Perhaps at some point in the future, a situation will emerge where a defense strategy rests wholly on such an argument, and then we'll (very likely) get to see a jury reject it.
posted by Kadin2048 at 7:19 AM on June 11, 2013 [4 favorites]


I am also curious why a lesser included offense was not an option- this would have been an obvious third degree murder charge in the jurisdiction where I studied law- maybe not proof of specific intent to kill, but seemingly sufficient proof to convict on reckless indifference as to causing someone's death.
posted by MoonOrb at 7:20 AM on June 11, 2013


I've always been told by my friends who are into guns that you never draw unless you're willing to shoot, and you never shoot unless you're willing to kill. That's supposed to be, like, the very basics of gun safety.
posted by Pope Guilty at 7:23 AM on June 11, 2013 [7 favorites]


The jury found that this was about the fact that she had stolen his money, not that she had withheld sex.

So how does this relate to theft through white collar crime?
posted by Mental Wimp at 7:24 AM on June 11, 2013 [1 favorite]


So how much time will the shooter do for soliciting prostitution?
posted by Mental Wimp at 7:25 AM on June 11, 2013 [2 favorites]


What's outrageous about it? Did someone get away with murder or not?
posted by Brocktoon at 7:27 AM on June 11, 2013


I've always been told by my friends who are into guns that you never draw unless you're willing to shoot, and you never shoot unless you're willing to kill. That's supposed to be, like, the very basics of gun safety.

Gun safety rules aren't the same as homicide laws. Given that the penalty for intentionally murdering someone can be spending the rest of your life in prison, it's reasonable to ask for more than violating gun safety laws.
posted by Bulgaroktonos at 7:32 AM on June 11, 2013 [4 favorites]


So, I offer my lighter to someone in a bar and they pocket it. I ask for it back and they deny having it. I can shoot them in Tejas?
posted by Mental Wimp at 7:33 AM on June 11, 2013


This seems to undermine the Texan claim of being pro-business.
posted by srboisvert at 7:35 AM on June 11, 2013 [4 favorites]


More concerned about the idea that this is considered theft at all, though obviously most concerned that someone died.

So, she didn't agree to sex, according to witnesses, so she fulfilled her side of the contract and received the money for it. He changed his mind and offered an illegal contract that wouldn't be recognized by law, which she refused. Which, to me actually makes the woman in this case completely innocent, legally speaking. Consider if she had performed the service (sex) but then he hadn't paid her and tried to leave with "her" $150. Under this law she could shoot him, if we're considering all sides equal, but I don't think we are.

(note "according to me" - I've found common sense isn't always the best sense for interpreting law)
posted by OrangeDrink at 7:40 AM on June 11, 2013 [2 favorites]


I thought if someone dies during a robbery it's automatically murder. She was the one getting robbed.
posted by bleep at 7:43 AM on June 11, 2013


But yeah it sounds like prosecution botched this one.
posted by bleep at 7:44 AM on June 11, 2013 [1 favorite]


More concerned about the idea that this is considered theft at all, though obviously most concerned that someone died.

So, she didn't agree to sex, according to witnesses, so she fulfilled her side of the contract and received the money for it. He changed his mind and offered an illegal contract that wouldn't be recognized by law, which she refused. Which, to me actually makes the woman in this case completely innocent, legally speaking.


This, for me, is why I'm convinced that the jury wasn't going off the defense of property defense. The lawyers presented two defenses*, and there's no way to figure out which one the jury bought, but the fact that one of the defenses make little sense based on the evidence is a good reason to assume they didn't buy it.

*Which I found pretty interesting, because that approach is disfavored at least among the criminal lawyers I've known/worked with. The current thinking is: juries understand stories, find one story that is a story of actual innocence and tell it. Obviously the kitchen sink approach also sometimes works.
posted by Bulgaroktonos at 7:44 AM on June 11, 2013


I don't understand how the last link changes things one bit. He shot at a car, with a person in it, the person died as a result, how is this not murder?
posted by Cosine at 7:56 AM on June 11, 2013 [2 favorites]


Wow, thanks for that last link. I'd been outraged by the Gawker link, and had no idea how badly it was misreported.
posted by ThatFuzzyBastard at 8:02 AM on June 11, 2013 [3 favorites]


Because proving murder requires proving intent to kill.
posted by MisantropicPainforest at 8:03 AM on June 11, 2013 [5 favorites]


I've been waiting for this post since I read the headline a few weeks ago which was shared among my friends here in Texas - in horror and shock, mind you. Because this is just too juicy to pass up. Even after people like Bridgette Dunlap have clearly explained Gawker's erroneous (and dangerous!) interpretation of what happened here. This fits too perfectly into the anti-Texas narrative. And it has been a little while since we've dragged out Texas for a good public shaming.

The real criminal here (in addition to the asshole who shot a sexworker) is Gawker, which has provided a horrifyingly oversimplified version of these facts which, to a misogynist, will look a lot like validation and permission. Good job, Gawker. Next time someone uses the "I can shoot prostitutes who refuse sex with me" defense, you should all pat yourselves on the back for helping that one grow legs and walk around.

And come the fuck on MeFi. You're better than this. After there have been at least FIVE hate crime attacks there against gays in the last month or so in New York, we have expressed outrage and sadness. Why not show New York to be the horrible dangerous den of bigotry that it is?

When anti-gay demonstrators attacked gays celebrating the recent victory of marriage equality in that backwater little pissant town of Paris, France, we expressed outrage and shock. Why not take cheap shots at the cheese-eating surrender monkeys who have now all been shown to be backwater morons?

BECAUSE WE'RE BETTER THAN THAT. We mourn the dead, and try to make sense of the awful stuff.

Shape up, MeFi. You're disappointing me.

As for the legal questions here, many people have made a lot out of the "night" requirement for this weird law. To really understand this, you'd have to go back several hundred years to when night was considered to be an element of certain crimes. At common law, burglary was the 1) breaking and 2) entering 3) of a dwelling place 4) of another 5) at night 6) with intent to 7) commit a felony. Those are a lot of little puzzle pieces that have to fall into place before you get to the point of creating a "Burglary!" So it makes sense - whether you agree with the law or not (and I don't) - that lawmakers used the common law as a starting place for carving out specific exceptions to those rules as defenses or privileges. The night time element was deemed to be vital to the common law for certain crimes against property. So why not make it a vital element of any modern privilege? Even absent a definition for "night" (which I don't immediately see in Section 9 of the Texas Penal Code), that just becomes a question that must be proved before the jury.

It's a little bit of a third-rail of politics to change the penal code to remove a protection afforded a victim of a crime. Who is going to vote to repeal that? Someone who doesn't want to be re-elected, that's who. And those privileges are very popular - not just here in Texas, but all over. It's going to take a major national cultural shift on guns before Law & Order Lawmakers are going to feel comfortable taking something like this off the books.

Cosine, frankly, we don't know WHY it isn't "murder" because the jury doesn't have to explain why it reached the conclusion it did. But the best, most logical guess, is because the jury probably found that shooting at a car with someone in it is reckless, and causing someone's death through reckless behavior is "manslaughter" not "murder." Since he wasn't charged with manslaughter, they couldn't convict him of that crime. In my hometown we had a similar problem with the Murder v. Manslaughter which was actually dramatized in the Ryan Gosling film "All Good Things." Robert Durst hacked a roommate into pieces and threw his body into the bay. He was charged with murder because it just seemed like such a slam dunk. And he was acquitted. This stuff happens.
posted by jph at 8:03 AM on June 11, 2013 [18 favorites]


ennui, you misunderstand my point and misantropic's question.

I'm so certain because I've done a fair amount of shooting. While in the Army I could reliably hit the 300m targets over iron sights with all my armor and eye pro on. In training now to hopefully be a cop, I can reliably get small groups at 25m with my pistol. I'm not good, but I'm competent. Hitting small, fast moving targets at night is extremely difficult. Unless this guy has physical proof of his superlative marksmanship, he absolutely missed his target and hit the wheel instead.

Cosine, because a necessary element of the crime is intent. Unlawful killing without intent to do so is the basic premise of manslaughter.
posted by kavasa at 8:09 AM on June 11, 2013 [1 favorite]


The only thing that saved his bacon is that the jury decided to rule correctly and fairly on the question of his intent - he didn't mean to shoot her, and he didn't actually shoot her. Her injury was caused by shrapnel caused by the shot - he is responsible for her death, and he should go to jail, but for manslaughter.

I don't mean to sound uncharitable here, but: have you ever used a gun? Or have you ever been to a range and actually seen people using them? Because literally the first thing that you will hear out of anyone's mouth before the weapon is placed in your hand is "don't point this at anything you don't intend to kill." It is the first and foremost criterion in any sort of weapon-handling context. You keep it unloaded. You keep it aimed at the ground. Because at the point where the business end of it is pointed at another person, you have committed a felony. At the point where you point it at a person in a vehicle containing a human being and it discharges, you have announced your intentions as loudly and plainly as they can be announced, and the fact that twelve human beings are capable of seeing past this really basic premise is so utterly bewildering to me that I'm having a hard time not reverting to LOLTEXAS.
posted by Mayor West at 8:11 AM on June 11, 2013 [3 favorites]


MisantropicPainforest: Can he be charged for manslaughter now? or would that be double jeopardy? It seems to me that the core problem was that the prosecution did not go for a manslaughter charge.
Pretty much a textbook example of double jeopardy.
posted by IAmBroom at 8:12 AM on June 11, 2013


jph: "And come the fuck on MeFi. You're better than this. After there have been at least FIVE hate crime attacks there against gays in the last month or so in New York, we have expressed outrage and sadness. Why not show New York to be the horrible dangerous den of bigotry that it is?

When anti-gay demonstrators attacked gays celebrating the recent victory of marriage equality in that backwater little pissant town of Paris, France, we expressed outrage and shock. Why not take cheap shots at the cheese-eating surrender monkeys who have now all been shown to be backwater morons?
"
Because New York and Paris, France doesn't have legislation that could potentially make anti-gay violence a-ok at night?
posted by brokkr at 8:13 AM on June 11, 2013 [2 favorites]


I don't understand how the last link changes things one bit. He shot at a car, with a person in it, the person died as a result, how is this not murder?

In Texas, murder requires an intentional or knowing mens rea. The act of shooting at an occupied vehicle does not in and of itself show an intentional or knowing mens rea. The prosecution would have to prove that the shooter had either the conscious objective of killing the victim, or that he had or should have had knowledge or reasonable certainty that his conduct would kill the victim.

Arguments such as "he probably meant to kill her" or "shooting at a car would probably kill the occupant" are not good enough. Convictions aren't what about probably happened - you have to prove it beyond a reasonable doubt. I'm not sure if it's true that shooting at a car will probably kill the occupant, and even if that is true, mere probability is not enough - we need reasonable certainty.

(FWIW, Texas apparently does not have depraved heart murder, so don't even go down that road...)

...

Unless this guy has physical proof of his superlative marksmanship, he absolutely missed his target and hit the wheel instead.

So, you believe hitting any nearby object is now absolute proof that one had intended to hit another target, the one specified by the prosecution? Oy gevalt.

He could have been shooting at her, or he could have been firing generally at the car to scare them into stopping, or he could have been trying to disable to car, or he could have been an idiot who was shooting because he was angry. It's not enough that he possibly, even probably, aimed for a person. You have to prove it beyond a reasonable doubt, and the prosecution failed to do that.
posted by Sticherbeast at 8:14 AM on June 11, 2013 [2 favorites]


Eventually, these states that idolize the Wild West aesthetic will become what the aspire toward, and their citizens will be so surprised that it's not the paradise they expected.

Ironically, the actual Wild West had stricter gun control:

"A visitor arriving in Wichita, Kansas in 1873, the heart of the Wild West era, would have seen signs declaring, "Leave Your Revolvers At Police Headquarters, and Get a Check.""
posted by qxntpqbbbqxl at 8:15 AM on June 11, 2013 [5 favorites]


"don't point this at anything you don't intend to kill."

But this is not the same as premeditation, which is required for a murder charge. When I was a juror on a murder trial a few years ago (in California), the judge spent quite a bit of time talking to the jury about intent and premeditation. You don't have to have elaborate, long-thought-out-plans to kill someone in order for "premeditation" to be considered - it can happen minutes or seconds before you fire the gun*, but it is necessary for it to be considered murder in the first degree. This isn't some weird or Texas-specific thing.

IANAL and I might've gotten some terms wrong.

* Which might make the prosecution's job more difficult to prove.
posted by rtha at 8:18 AM on June 11, 2013


When the full story of this is written, my guess is that this will come down to a failed plea bargain strategy on the prosecution's side. The prosecution probably offered manslaughter, and when the defendant countered with some kind of lesser offense (reckless discharge of firearm, etc.), said "plea to manslaughter now or we'll charge you without giving the jury a manslaughter option." They had to stick to their guns when the defendant said "no thanks." Whether the defendant took that gamble from savvy (evidence around the tire being sought, the recovery of property defense) or just got lucky is really interesting.
posted by MattD at 8:18 AM on June 11, 2013 [3 favorites]


Sticher, not really. I'm asserting that, barring some exceptional evidence (trophies from night-time rifle shooting competitions), the argument that he was a)aiming at and b)hit a tire is beyond any reasonable doubt false. This isn't an argument about the verdict, the jury, or the defense. It's me saying "I don't buy his defense, here's why."
posted by kavasa at 8:19 AM on June 11, 2013


kavasa: Hitting small, fast moving targets at night is extremely difficult. Unless this guy has physical proof of his superlative marksmanship, he absolutely missed his target and hit the wheel instead.
kavasa, your argument seems to be:
1. Hitting small, fast moving targets at night is extremely difficult.
2. The woman driving away was small, fast moving, and it was night.
Therefore, he must have aimed at, and missed, the woman.

The fact that it's hard doesn't mean you automatically miss. Hitting the tire is never going to be reasonable proof that he was aiming anywhere but the tire. It only opens the possibility that he was aiming nearby and missed.

I'm pretty damned sure he was aiming at her, but these two facts alone aren't proof enough to establish intent to kill.
posted by IAmBroom at 8:19 AM on June 11, 2013 [1 favorite]


Also, how in the world do you come up with "absolute proof" when I have repeatedly stated a caveat?
posted by kavasa at 8:20 AM on June 11, 2013


Cosine, frankly, we don't know WHY it isn't "murder" because the jury doesn't have to explain why it reached the conclusion it did.

I'd hope at least one journalist would interview them.
posted by jaduncan at 8:22 AM on June 11, 2013


If I just acquitted a man who shot and killed a woman, orphaning her child, because she wouldn't sleep with me for money, there is no way in hell I would talk to a reporter.
posted by Elementary Penguin at 8:23 AM on June 11, 2013 [1 favorite]


No. Tires are small and fast moving. My argument is that I don't believe, with my frequent caveat of other evidence, that he was aiming at the tire.
posted by kavasa at 8:24 AM on June 11, 2013


Sticher, not really. I'm asserting that, barring some exceptional evidence (trophies from night-time rifle shooting competitions), the argument that he was a)aiming at and b)hit a tire is beyond any reasonable doubt false.

By that logic, had he literally hit her head, that would be great news for the defense! It would be up to the prosecution to prove that he was a marksman - since, after all, it is beyond any reasonable doubt false that he could have hit a small moving target at night.

You don't know how well-illuminated the area was or was not, how quickly the car was going, how close he was, the actual odds of hitting any particular target in the area, etc.

Also, how in the world do you come up with "absolute proof" when I have repeatedly stated a caveat?

This:

Unless this guy has physical proof of his superlative marksmanship, he absolutely missed his target and hit the wheel instead.

You introduced absoluteness.
posted by Sticherbeast at 8:25 AM on June 11, 2013 [3 favorites]


kavasa: No. Tires are small and fast moving. My argument is that I don't believe, with my frequent caveat of other evidence, that he was aiming at the tire.
I hope you're never, ever on any jury sent to judge me then, because a blind monkey pointing the gun in the direction of the car stands a chance of hitting a tire. Your argument is statistically false: hard != impossible.
posted by IAmBroom at 8:27 AM on June 11, 2013 [2 favorites]


the argument that he was a)aiming at and b)hit a tire is beyond any reasonable doubt false.

But how do you get there from "doing this is hard." It's entirely possible to aim at something that's hard to hit and then hit it, even without being an expert marksman. If someone is hits something, there a reasonable chance (maybe not a likely chance, but that's not required) that that's what they were aiming at, even if hitting it would be difficult.
posted by Bulgaroktonos at 8:27 AM on June 11, 2013 [1 favorite]


No. Tires are small and fast moving. My argument is that I don't believe, with my frequent caveat of other evidence, that he was aiming at the tire

Which is perfectly compatible with the verdict rendered by the jury, mind you.
posted by MisantropicPainforest at 8:27 AM on June 11, 2013 [1 favorite]


Also: I'm asserting that, barring some exceptional evidence (trophies from night-time rifle shooting competitions), the argument that he was a)aiming at and b)hit a tire is beyond any reasonable doubt false

The very idea is beyond any reasonable doubt, with no caveat, and no proof of your exceptional, firsthand knowledge of the evidence that was actually presented at trial.
posted by Sticherbeast at 8:27 AM on June 11, 2013 [2 favorites]


"...the fact that twelve human beings are capable of seeing past this really basic premise is so utterly bewildering to me that I'm having a hard time not reverting to LOLTEXAS." - Mayor West

It's not a possibility that twelve human beings who sat through the trial and saw all of the facts presented might have reached a better conclusion than someone who read a couple of links on the internet?

I'm not defending the guy -- sounds like a scumbag who does, in fact, belong in prison. But this just feels like one of those stories where there might be some very rational reasons why things turned out the way they did that don't involve condemning an entire state to the lunatic idiot bin.

And as a Texan, I like to LOLTEXAS as much as the next guy. But. In reality, Texas isn't the crazy place people seem to want to believe it is. At least, this particular case isn't necessarily evidence.

Florida. Now there's an asylum.
posted by chasing at 8:27 AM on June 11, 2013 [3 favorites]


You included the caveat in the quote you just pasted. Are you just skipping over it or..?

And again, this is me saying why I personally don't buy his argument, while having repeatedly said that there could be more evidence that might change the position. Like, could people actually read what I've said, please?
posted by kavasa at 8:32 AM on June 11, 2013


kavasa,

You said that you don't believe that he was aiming at the tire because he hit the tire, because hitting things you are aiming at is hard.

If you have a spot, lets call it X, and you are going to fire two shots. One of those shots you will fire randomly. The other you aim at the spot X, and then shoot. What shot is more likely to hit X? The random one? or the one aiming at X? Obviously the one aiming at X.
posted by MisantropicPainforest at 8:41 AM on June 11, 2013


This story seems to have two really weird elements to me:

(1) Why the lesser included manslaughter charge was not available to the jury (I earlier remarked that this would have been 3rd degree murder in a different jurisdiction; in Texas it would be manslaughter);

(2) Why the judge permitted the "defense of property" defense, and whether the prosecution attempted to argue that it should not have been allowed as a matter of law (as opposed to just arguing to the jury that it didn't apply in this case).

I can see the first issue arising as the result of a failed strategy by prosecutors--probably trying to push the defendant into a guilty plea, since these facts really scream "manslaughter" and not "first degree murder" and coming up with a specific intent to kill would be a difficult hill to climb (which it was, apparently).

The second issue is really a mystery to me. I understand why the defense made the argument, as repellant as it was. The defense has an incredible amount of room to make just about any argument it wants to make, because our system of justice so highly prizes the rights of the accused. Should any of us ever be accused of and tried for murder, I imagine we'd want to make any argument we could, no matter how objectively disgusting, if we thought it might help our causes. But the check on this should be the judge--just because an argument exists to be made doesn't mean the argument is a legally permissible one. It seems to me that in the first instance the judge should have been compelled to make a ruling on whether the proffered defense was even viable: and that, actually, is a big reason why this case is so horrible, and why the "Texas jury says prostitutes are property" types of headlines about this case are not so hyperbolic as they may appear on first blush. If the prosecution didn't at least attempt to force the judge to rule, as a matter of law, that this defense was legally available to the defendant, then I suppose we can thrust more of this blame back onto the prosecutor.
posted by MoonOrb at 8:41 AM on June 11, 2013


I've been wondering about this case since I first read about it. I was glad to see that last link because I was convinced there was some reason this case turned out the way it did that wasn't "it's okay to shoot a hooker who won't put out".
posted by immlass at 8:42 AM on June 11, 2013 [2 favorites]


What caveat are you referring to? That the very idea is "beyond a reasonable doubt false", "barring some exceptional evidence"? If so, then your argument is exactly what I think it is, and you are still speaking of your arguments containing absolutes beyond a reasonable doubt - that it is beyond reasonable belief that a man could hit a tire at night, unless he was a marksman.

If that was not your caveat, would you please restate it? And would you please also share how well-lit the area was, how near the car was, what the angle was of the car fleeing the man, how quickly the car was moving, etc., as these are important things that you and apparently no one else in this thread knows? Would you also like to explain how, even if hitting a tire had been unintentional, how that alleged miss would constitute proof that he had been aiming for the specific target named by the prosecution? Again, had he actually hit the victim in the back of the head with a direct shot, then according to your logic, it would be beyond a reasonable doubt that he had not aimed for her, unless the prosecution could prove that he was a marksman.

(Also bear in mind that cars have four tires, so even if you miss one tire, then it's very possible to hit another.)
posted by Sticherbeast at 8:46 AM on June 11, 2013


And again, this is me saying why I personally don't buy his argument, while having repeatedly said that there could be more evidence that might change the position.

Which it seems there was, at the trial, and which you were not privy to because you were not on the jury. Yeah, links on the internet != evidence and testimony presented at a trial. At all.
posted by rtha at 8:50 AM on June 11, 2013


I should never serve on a jury then, because in my book if you pull out a gun and fire it at someone, whether or not they're standing still or in a car, you are intending to kill them. Pulling out the gun is the premeditation and the intent in my book.

And before people ask if I've ever seen a gun or whatever the current NRA-approved line is, I grew up with them.
posted by winna at 8:56 AM on June 11, 2013 [1 favorite]


I should never serve on a jury then, because in my book if you pull out a gun and fire it at someone, whether or not they're standing still or in a car, you are intending to kill them. Pulling out the gun is the premeditation and the intent in my book.

Certainly if you're unwilling to apply the law as it actually is, rather than how you wish it was, then no you should not serve on a jury.
posted by Bulgaroktonos at 8:58 AM on June 11, 2013 [5 favorites]


Pulling out the gun is the premeditation

This is not even close to a reasonable definition of premeditation.
posted by MisantropicPainforest at 9:01 AM on June 11, 2013


I am not remotely a lawyer, but this looks like a murder case to me, at least based on Texas law. The facts are that Gilbert paid Frago $150 for 30 minutes of her time, which he received. He then, according to his defense team, shot at the car in an attempt to take back the money. This resulted in Frago being injured and, eventually, dying.

In Texas, one definition of murder is:

Texas Penal Code
Sec. 19.02. MURDER.

(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.

It seems to me that shooting at a car which contains people is "an act clearly dangerous to human life." And according to Texas penal code, attempted robbery is a felony.

I suppose the prosecution could have actually won with a Manslaughter charge, but that doesn't change the fact that, according to Texas law, Murder was also an appropriate (and potentially winnable) charge. That is, of course, if the case didn't involve an escort who received $150 and didn't even give it up.
posted by eunoia at 9:07 AM on June 11, 2013 [2 favorites]


eunoia,

What was the felony that he was committing or attempting to commit? Robbery?
posted by MisantropicPainforest at 9:10 AM on June 11, 2013


Kavasa, you're getting the argument muddled. It's not "he hit the tires, therefore he must have been aiming at the tires." It is "he hit the tires, therefore you can't be sure beyond a reasonable doubt that he intended to hit the woman." And, after all, you can't be sure of that. Who knows what was in his mind? It could have been anything from "I'll frighten them a bit" to "I want them dead!" Maybe he thought he was going to send a bullet into the trunk or the hood? Maybe he thought he was aiming just past the car? Maybe he was trying to hit her right in the head? You simply cannot tell. You certainly cannot say "if it hit the tire, then he must have been aiming at her head!" which seems to be your, rather strange, deduction.

Is firing a gun at a moving car at night an insanely reckless thing to do which should be prosecuted? Yes. Is it clearly and self-evidently "murder" or, if no fatalities ensue, "attempted murder"? No.
posted by yoink at 9:11 AM on June 11, 2013 [5 favorites]


Unless this guy has physical proof of his superlative marksmanship, he absolutely missed his target and hit the wheel instead.

my point was that there is no way to determine intention from ballistics in this case, where he definitely fired the gun at the parties in question. but, frankly, that he intentionally shot at the car where the woman was shot ought to have been enough. the important question is the grand mystery of what he was intending while he was shooting at the car. intention is not a fact of the case, like ballistics.

In Texas, murder requires an intentional or knowing mens rea. The act of shooting at an occupied vehicle does not in and of itself show an intentional or knowing mens rea. The prosecution would have to prove that the shooter had either the conscious objective of killing the victim, or that he had or should have had knowledge or reasonable certainty that his conduct would kill the victim.

this is boilerplate lawyering... shooting a gun at a car containing a person is well within the bounds of "reasonable certainty." Clearly, the prosecutor didn't convince the jury. Why? I agree with you that there is nothing particularly novel about this case but that's the damning thing really. The point being that everyone knows you can be violent with prostitutes without consequences, especially if you are white and they are not.
posted by ennui.bz at 9:12 AM on June 11, 2013 [1 favorite]


What was the felony that he was committing or attempting to commit? Robbery?

Yes. He was upset that she wouldn't have sex with him, but that does not cancel out their actual agreement, which was only for her time. Once she fulfilled that agreement and he handed over the money, it belonged to her. It would seem to me that his trying to get it back would be an attempt at robbery.
posted by eunoia at 9:16 AM on June 11, 2013 [2 favorites]


He shot at the car as she and the escort drove away. I think saying that is attempted robbery is a bit of a stretch.
posted by MisantropicPainforest at 9:19 AM on June 11, 2013 [1 favorite]


Sticher. @.@ My god. Me calling bullshit on the dude's claims on the Internet does not and need not rise to the level of making the prosecution's case.

I read what's available.
I stated that I don't believe the argument he made through his counsel.
I said why.

Things I never said:
"Based on what I've read, he ought to have been convicted."

I didn't say that because I don't believe it to be true. If you find his claim compelling, that's great, I guess? I would suspect that you have very little experience with firearms if so, but if not I'd merely be surprised.

rtha, there may or may not have been more evidence at the trial. It could just as easily be that a jury with little shooting experience outside of watching movies was convinced by an argument that the prosecution did a bad job of discrediting. Which is why I made the caveat that I did. That persons choose to ignore it doesn't mean I didn't write it.
posted by kavasa at 9:20 AM on June 11, 2013


He shot at the car as she and the escort drove away. I think saying that is attempted robbery is a bit of a stretch.

His defense team stated that he shot at the car to try and get the $150 back. So the question is who did the $150 rightfully belong to? If Frago fulfilled her end of the contract, then it belonged to her, and trying to get it back (with a gun) seems like robbery to me.
posted by eunoia at 9:26 AM on June 11, 2013 [4 favorites]


Slightly tangentially: one of the things I always find puzzling in these sorts of cases is the massive difference purely random outcomes make to both the legal and social responses to given actions. I mean, here we have a case where this poor woman died as a result of incredibly bad luck--a tiny bullet-fragment bouncing off the wheel and, in a million-to-one chance, inflicting a lethal wound on her. Had that fragment spun off in any of a billion other directions, no one ends up injured or dead and it wouldn't even cross anyone's mind that you might want to make a case of "attempted murder" against this guy. "Reckless endangerment" or some such, sure, but "murder"? Not a chance.

But I've never understood this. It seems to me that we should be judged solely on our actions and the foreseeable consequences of those actions. It's always seemed to me bizarre that "attempted murder" is in any sense a lesser crime than "murder" (it's only luck or bad planning, after all, that prevented it from being murder) or that punching someone in a drunken brawl and having that accidentally lead to their death is somehow a more serious crime than punching someone in a drunken brawl and having it lead to nothing more than the normal foreseeable consequences: both of you going home and bragging to your friends about how bad the other guy looks.
posted by yoink at 9:28 AM on June 11, 2013 [5 favorites]


Yeah, I wish some legal expert would explain how this was not attempted robbery on his part. He gave her the money. He shot at the car to get the money back.
posted by bleep at 9:31 AM on June 11, 2013


no one ends up injured or dead and it wouldn't even cross anyone's mind that you might want to make a case of "attempted murder" against this guy.

We wouldn't have heard about it if it didn't kill her. But if it were my innocent friend who was in a car that got shot at, hell yes I would want him to go jail for attempted murder.
posted by bleep at 9:32 AM on June 11, 2013


this is boilerplate lawyering... shooting a gun at a car containing a person is well within the bounds of "reasonable certainty."

That's just, like, your opinion, man. Prove this, citing Texas law. "Reasonable certainty" has a very specific meaning here.

...

kavasa, I don't know what to tell you. We all understand that people underestimate how difficult it is to hit a moving target, let alone at night, especially without lots of training, practice, and talent, but there are far, far, far too many unknowns to make big pronouncements about it. Even just the most narrow, discrete version of your argument has problems. We do not have enough information on hand to weigh in on the likelihood of this specific instance of allegedly intending to hit a tire at night. You also haven't answered the hypothetical about the direct shot to the back of the head, which ought to shine a light on how problematic the argument really is.

If the prosecution chose not to heavily counter the tire argument, then it's probably because the alternative could have backfired. Once you begin talking about how probable it is or is not to hit a tire at night, then you are raising the issue of reasonable doubt on several fronts. The prosecution would have been doing the defense's job for them. How likely is it to intentionally hit a tire at night? If the tire was a miss, then what was the intended target? Was there a specific intended target, such as a person, or was it tires in general, or was it the car in general, or was he firing indiscriminately? Prosecution does NOT want to be bringing up alternative theories in front of the jury. If they keep it up for long enough, you'll have the prosecution chasing their tails in public, while the defense are quietly sketching out how to celebrate their victory.
posted by Sticherbeast at 9:42 AM on June 11, 2013 [1 favorite]


But if it were my innocent friend who was in a car that got shot at, hell yes I would want him to go jail for attempted murder.

Well, sure: but the feelings of immediate friends and family are pretty irrelevant to a discussion of both "how the law reacts" and "how society at large reacts," don't you think? If our close friends and family members got to determine legal remedies there'd be a lot of people languishing in prison for such crimes as "dumped her by text message on Valentine's day."
posted by yoink at 9:43 AM on June 11, 2013 [2 favorites]


It could just as easily be that a jury with little shooting experience outside of watching movies was convinced by an argument that the prosecution did a bad job of discrediting.

Jurors are not required to have particular expertise in shooting (or arson or poisoning or garroting or any other way that someone may intentionally or un- cause the death of someone else). They are required to be as impartial as possible, and to render judgement of whether or not the prosecution proved their case beyond a reasonable doubt. So, irrelevant, Your Honor, I move that this be struck.

In the trial I was a juror on, there were a great many sidebars, and very few "Objection!s Move to strike!" from either prosecution or defense, and none of those was at all dramatic. It was one of the most fascinatingly dull experiences I've ever had.
posted by rtha at 9:48 AM on June 11, 2013


Well, sure: but the feelings of immediate friends and family are pretty irrelevant to a discussion of both "how the law reacts" and "how society at large reacts," don't you think?

I thought you were wondering why we wouldn't care if he got attempted murder if she didn't die. I didn't realize when you said "anyone" you meant "a prosecutor".
Had that fragment spun off in any of a billion other directions, no one ends up injured or dead and it wouldn't even cross anyone's mind that you might want to make a case of "attempted murder" against this guy.

If she wasn't injured, she probably wouldn't have reported it. I personally think he still would have deserved to go to jail.
posted by bleep at 9:59 AM on June 11, 2013


I thought you were wondering why we wouldn't care if he got attempted murder if she didn't die

The relevant part of my comment that you may have missed:
the massive difference purely random outcomes make to both the legal and social responses to given actions.
posted by yoink at 10:02 AM on June 11, 2013


yoink, that question has always interested me, too. I think the answer is found in the traditional conception of crimes as having both a mens rea and actus reus component. I think of it like a 2x2 grid, with harm caused on one axis and mental state on the other: crimes where the action is really awful and the mental state is really awful are dealt with the most severely; crimes where the result is horrible but the mental state is less culpable/mental state is horrible but little or no harm results get dealt with less severely; and those where there is little or no harm and little culpable mental state are dealt with the least severely at all (or are simply not criminal).

I agree that this seems to allow random chance to intervene--a bullet intended for someone that hits no one results in a much less severe punishment than if the bullet finds its mark. But, sometimes we are just lucky (or unlucky), I guess.
posted by MoonOrb at 10:04 AM on June 11, 2013


But hey, we shouldn't judge the guy too harshly. After all, he's suffered too: he has to change the channel when he sees guns on TV!
posted by Saxon Kane at 10:39 AM on June 11, 2013 [2 favorites]


Because proving murder requires proving intent to kill.

And, apparently, to this jury, firing a deadly weapon at someone doesn't imply intent. Interesting.
posted by Mental Wimp at 10:48 AM on June 11, 2013 [3 favorites]


rtha, you're talking about something else. You asserted that there definitely was evidence presented at trial that would have proven his claim to me. I don't think that's necessarily the case, although there is a slight chance that it could be.

I mean, there's nothing to be struck. I'm mostly registering my disbelief because I could imagine folks who haven't shot at all thinking its a reasonable claim on its face when I don't really think it is. It needs something more.

Sticher, we have enough to say (as i have, many times) "barring something exceptional we're not party to, it's a very unlikely claim."

I'm not sure that your story about why the prosecution shouldn't have tried to discredit it carries much weight. It looks like an after the fact justification based on, er, confabulation, really? The actual outcome of the case is that the prosecution lost.

The hypothetical is silly. It's no more unlikely for a person aiming at a car generally to hit the head of an occupant than it is to hit a wheel. If he'd claimed to be aiming specifically at the head, I would be suspicious of his psychopathic bragging, too.

FWIW, I don't think his defense would have worked in MN. A lot of the statutes contain verbiage to the effect of "doing something that the person knew, or ought reasonably to have known, would result in death or great bodily harm," and it's a pretty easy argument that he ought reasonably to have known he might kill someone shooting at an occupied vehicle.
posted by kavasa at 11:02 AM on June 11, 2013


You asserted that there definitely was evidence presented at trial that would have proven his claim to me.

Perhaps I misspoke.

The press reports cannot encompass everything presented at the trial. We don't know what was left out. We don't know what the jury heard and saw and we haven't. That's it. You yourself concede that there could be more evidence that might change the position, though your assertion that, barring some exceptional evidence (trophies from night-time rifle shooting competitions), the argument that he was a)aiming at and b)hit a tire is beyond any reasonable doubt false strikes me as unnecessarily flat.
posted by rtha at 11:10 AM on June 11, 2013 [1 favorite]



FWIW, the argument that he aimed at and hit a moving vehicle's tires at night is laughable


It would be laughable for a competent marksman to say he was aiming at the tires. I'm a relatively good shot, and I don't think I could hit tires unless I was very close to the car. But this guy has already demonstrated his poor judgment, so I wouldn't put it past him to have watched some action movies and think shooting out tires is a lot easier than it is.
posted by corb at 11:13 AM on June 11, 2013 [3 favorites]


So, she didn't agree to sex, according to witnesses, so she fulfilled her side of the contract and received the money for it.

It is a tragedy that this woman is dead, and this guy seems like a particularly repellant human being. But I think this question is one that is particularly polarizing, but also particularly difficult to solve.

But instead, Frago walked around his apartment and after about 20 minutes left, saying she had to give the money to her driver, he said.
It seems likely from this that there was some sort of scam involved if what he says is true. There are indeed legitimate escort services where sex is not involved, but those generally involve, as the word says, escorting someone there - being a public date for the person involved. At the very least, it is likely that the phrasing was intended to be misleading. If the woman got up saying she had to give the money to the driver, rather than "And this is the end of our date", it just feels really sketchy. I think it probably was a scam to defraud him out of money.

Now, people do not deserve to die just for being sketchy, or even for scamming others. I think there were a lot of alternatives that this guy could have done to get his money back. Given his physically imposing picture, I find it difficult to believe that deadly force was necessary. I also agree with the rules of gun safety listed above, with one caveat. The rule is not, "Don't fire unless you intend to kill." The rule is, "Don't fire unless you are willing to kill." Even if he was able to shoot out her tire, there's no guarantee that wouldn't lead to a death - an out of control car can crash with just as much fatality.
posted by corb at 11:31 AM on June 11, 2013


ardgedee: "They're not expecting paradise. They're expecting validation of their fear of everybody around them, or of their belief that the only human relationship is defined by power, or by money."


If only we could make sure that everybody hated us, then we could prove our assertion that everyone hates us! WIN WIN!
posted by symbioid at 11:33 AM on June 11, 2013


Given his physically imposing picture, I find it difficult to believe that deadly force was necessary.

There are circumstances when deadly force is necessary to recover $150 from a fleeing person?
posted by MoonOrb at 11:35 AM on June 11, 2013 [4 favorites]


I vote we reinstate the weregild. It would be particularly satisfying in this case.
posted by BlueHorse at 11:42 AM on June 11, 2013 [2 favorites]


don't skip the last link
"... it misinforms the public and sends a terrible message to violent misogynists."

As does Texas' death-sentence, which has fallen below 10 executions a year after peaking at 50 in 1999.
posted by Twang at 12:11 PM on June 11, 2013


Yeah, I wish some legal expert would explain how this was not attempted robbery on his part. He gave her the money. He shot at the car to get the money back.

Because attempted robbery still requires the same intent to steal that robbery does. The "attempt" largely goes to whether the act was completed, not whether the intent was there. You won't get a conviction for attempted robbery in the situation of a completed act because you would just have robbery; in a situation like this, if the jury won't convict for robbery, it won't convict for attempt.

Seems like the big story here, as per the last link, is that that statute actually exists in Texas.
posted by likeatoaster at 12:22 PM on June 11, 2013


If I were a juror on that trial, could I have hung the jury, in hopes that it would be retried as a manslaughter?
posted by the Real Dan at 12:42 PM on June 11, 2013


If I were a juror on that trial, could I have hung the jury, in hopes that it would be retried as a manslaughter?

Presuming a juror was conversant enough in Texas law to know that there was a lesser included offense that would have been appropriate, a juror could have hung a jury by insisting on conviction: juries must return unanimous verdicts in criminal cases in Texas. There is also no guarantee that the case would be retried. Moreover, there are the effects of Double Jeopardy to consider--the Supreme Court has held as recently as last year that a mistrial does not bar re-prosecution, and would seemingly not bar prosecution for a lesser-included offense that wasn't originally brought provided that there was no acquittal in the first instance (it would have barred trial for the lesser included had their been an acquittal). I couldn't tell if the question has ever come up, however: the seminal case in this area is Brown v. Ohio, 432 U.S. 161 (1977). I also don't know whether there is some greater protection under the Texas constitution.

But even if Double Jeopardy permits trial on a lesser included offense that was not initially tried, there is still an important question: should jurors be free to disregard instructions? There are competing values here: on one hand, jurors understandably want to feel as if they are acting justly. On the other hand, our criminal justice system depends on jurors fairly applying the law as it's given, not acting on their own notions of what is criminal and not criminal or right and wrong. So while we could empathize with an individual juror's sincere belief that a criminal accused should stand trial for a lesser included offense (and that juror's related insistence on voting to convict not because s/he believes that conviction of the greater offense is appropriate but because s/he believes that doing so will result in a mistrial and possible retrial), I'd make the case that I would rather jurors adhere to instructions and apply the law as it's given even when that sometimes results in undesirable outcomes.
posted by MoonOrb at 1:17 PM on June 11, 2013 [1 favorite]


Sticher, we have enough to say (as i have, many times) "barring something exceptional we're not party to, it's a very unlikely claim."

kavasa, you shouldn't put phrases in quotes that have not actually been said. It's misleading to the reader.

Do you realize how much your position is changing? Whether you are aware of the changes or not, you are walking back your earlier statements. For example:
I'm asserting that, barring some exceptional evidence (trophies from night-time rifle shooting competitions), the argument that he was a)aiming at and b)hit a tire is beyond any reasonable doubt false.
Your new position, which is substantially different from your old position, has apparently broadened to include 1) evidence beyond proof of marksmanship and 2) a relaxation of your earlier grand pronouncement that it is "beyond any reasonable doubt false" for a non-marksman to have aimed for and hit a tire. You have downgraded such a possibility from being "beyond any reasonable doubt" to now being merely "very unlikely".

Which position are you standing for, the new position or the old one? Do you see how "beyond any reasonable doubt" and "very unlikely" are very different concepts? Do you understand that no one is saying this man definitely shot one exact tire that he wanted to hit, but rather that he was firing at the car's tires (plural) and that he sorta hit one of them?

I'm not sure that your story about why the prosecution shouldn't have tried to discredit it carries much weight. It looks like an after the fact justification based on, er, confabulation, really? The actual outcome of the case is that the prosecution lost.

Whose confabulation? What precisely are you trying to communicate by the use of the term "confabulation"?

The prosecution lost because they overcharged. The battle was lost before it began. Maybe a few juries could have convicted, but overall, there's a huge missing piece where the mens rea should be. This was a solid manslaughter case which was turned into a reach of a murder case.

I stand by my characterization of the tire story as being dead weight for the prosecution. The prosecution needed to prove their case. They would not be caught dead talking too much about aspects of the shooting which are all about. They'd want to quickly cast doubt on the idea that he had only been aiming for the tires, but they would not want to dwell on it.

Think realistically about how the prosecution would bring up your point, about the difficulty of hitting a moving target at night. How do you picture that going well for the prosecution?

From my own imagination:

PROSECUTION: You say you were aiming for her tires, yes?
SHOOTER: Yes, the tires in general.
PROSECUTION: And we're supposed to believe that, is that right?
SHOOTER: Since I'm under oath, I have to say yes.
PROSECUTION: But you wanted to kill her, though, right?
SHOOTER: No! That's why I was shooting at her tires.
PROSECUTION: But it's not easy to hit a moving target at night, is it?
SHOOTER: No, it's not, I had no idea where my bullets would go. I had also overestimated my ability to only hit the car's tires.
PROSECUTION: You don't have any awards for marksmanship, though, do you?
SHOOTER: No, sir.
PROSECUTION: You have no professional marksmanship qualifications at all, is that right?
SHOOTER: No, sir, I am not a marksman. Maybe if I were a marksman, she wouldn't be dead.

And so on. Dwelling too much on this exact issue is a loser strategy.

The hypothetical is silly. It's no more unlikely for a person aiming at a car generally to hit the head of an occupant than it is to hit a wheel. If he'd claimed to be aiming specifically at the head, I would be suspicious of his psychopathic bragging, too.

The hypothetical is only silly because it's a reductio ad absurdum.

According to your logic, at least according to the logic of your earlier stated position, it would have been "beyond any reasonable doubt" for a non-marksman to have hit a small moving target, such as a woman's head, at night. Therefore, successfully hitting her head would be self-exculpatory for a non-marksman, as it is "beyond any reasonable doubt" that he could have both intended to hit her head and successfully hit her head.

However, according to your new, changed position, you now regard the odds as being merely "very unlikely", or perhaps only "suspicious". So...had she been directly hit in the head, you would now be merely "suspicious" of his claim that he had been aiming for it. Yet another change in your position, which is interesting - "suspicious" versus "very unlikely" versus "beyond any reasonable doubt". At any rate, according to that logic, you would have to acquit, as you are suspicious of his own claim that he had been aiming for her head, and where there is suspicion, we cannot have a conviction beyond a reasonable doubt.

FWIW, I don't think his defense would have worked in MN. A lot of the statutes contain verbiage to the effect of "doing something that the person knew, or ought reasonably to have known, would result in death or great bodily harm," and it's a pretty easy argument that he ought reasonably to have known he might kill someone shooting at an occupied vehicle.

Ifs and buts, ifs and buts. The shooter would run afoul of Minnesota's Murder Three, which is a "depraved mind" statute in the depraved heart murder vein. Texas does not have depraved heart murder. (Minnesota's Murder One and Murder Two statutes are unhelpful here, because they both require intent to kill, except for other portions of them that are not relevant here.)

Also: the idea that he "might" kill someone by shooting at an occupied vehicle is exactly what the reckless mens rea is all about, which is why he should have been charged with manslaughter.
posted by Sticherbeast at 2:07 PM on June 11, 2013 [1 favorite]


It's also perfectly possible that this shooter is a lying sack of shit who really was shooting to kill, but but it's not enough to think that - the prosecution has to prove it.
posted by Sticherbeast at 2:09 PM on June 11, 2013 [1 favorite]


Somebody mentioned gun safety upthread. I drove by a truck with a series of bumper stickers the other day that included "Libtards Say 'Gun Saftey', I Say 'Being A Pussy.'" The good news was that bumper sticker looked home made. Or maybe that's the bad news.
posted by Joey Michaels at 2:18 PM on June 11, 2013 [1 favorite]


A big part of the Gawker-outrage is the idea that he was shooting at the car in order to get the woman to sleep with him, and that this would have been justified under Texan law. I think this is a really weird interpretation of events: he was shooting at the car because he felt cheated, yes, but at that point he probably just wanted his money back. That's definitely something that might be justified under Texan law, bad as it is, but the same would apply if he had been cheated out of money under differenr circumstances. We might speculate that he would have forced her to have sex at gunpoint, but that's just chasing the outrage-bunny down the rabbit hole.
posted by Joe in Australia at 3:39 PM on June 11, 2013 [1 favorite]


Nobody has considered the most likely possibility: an expert marksman, he shot at a certain point on the tire which he knew would cause a fingernail-sized piece of shrapnel to fly off and hit her in the head. Like a trick billiards shot.
posted by Bugbread at 4:00 PM on June 11, 2013 [1 favorite]


It is a weird interpretation, but I don't think anyone in this thread is arguing that the Gawkerish interpretation is anything other than linkbait yellow journalism.

How about this reductio ad absurdum: you could walk around at night carrying a box filled to the brim with lollipops…

Okay, how about this reductio ad absurdum: combine this law with the notion that IP is property and copyright infringement is theft, and it's legal for the MPAA to drive around Texas at night shooting anyone whose wifi traffic indicates they are torrenting a movie. The cyberpunk future is here!

posted by hattifattener at 4:02 PM on June 11, 2013 [1 favorite]


But this guy has already demonstrated his poor judgment, so I wouldn't put it past him to have watched some action movies and think shooting out tires is a lot easier than it is.

Outside of mental disability, I don't really feel so great about the idea that people who are too fricking dumb to determine the consequences of an action like any reasonable person should be only guilty of manslaughter instead of murder. Pointing an automatic rifle in someone's general direction and pulling the trigger is a really solid basis of murderous intent. I can hardly think of a better one.

Jus' sayin' that maybe the jury's bias wasn't just misogyny, maybe it was also gun culture. An AK-47 is a tool for killing human beings. It's not a tool for digging ditches and it's not a tool for changing tires. This is like a dude taking a pair of chopsticks to a bowl of noodles and saying his intent was to play checkers.
posted by Skwirl at 4:35 PM on June 11, 2013 [1 favorite]


Skwirl: "I don't really feel so great about the idea that people who are too fricking dumb to determine the consequences of an action like any reasonable person should be only guilty of manslaughter instead of murder."

I am totally cool with the legal ideal of giving equal treatment, regardless of how intelligent or unintelligent a person is.
posted by Bugbread at 4:51 PM on June 11, 2013 [1 favorite]


Does someone who practices in Texas know how (aside from exceptional cases) prosecutors usually show intent to kill and not to wound or frighten? I assume "No, I meant to hit him in the ear" doesn't usually cut it. Is discharging a rifle at a vehicle known to contain someone you are angry at not usually enough?
posted by Ms Vegetable at 5:21 PM on June 11, 2013


So let me get this straight.

I can get into a beef with someone in Texas, fire at their car while driving away, kill them, and get off because it can't be proved I intended to kill them?

Madness. If I discharge a gun at another person in anger and it kills them, I murdered them.

"Sorry I shot your kid in the head - I was intending to fire OVER his head to scare him. Good evening!"
posted by lupus_yonderboy at 6:19 PM on June 11, 2013 [2 favorites]


Does someone who practices in Texas know how (aside from exceptional cases) prosecutors usually show intent to kill and not to wound or frighten? I assume "No, I meant to hit him in the ear" doesn't usually cut it. Is discharging a rifle at a vehicle known to contain someone you are angry at not usually enough?

I think this question is generalizable to "how is specific intent proven?" Since specific intent to kill is a key component of what is commonly considered "first degree murder." Once upon a time I did practice criminal law, but never tried a homicide, so with that caveat, here goes:

Generally, this is proven through circumstancial evidence, direct evidence, or both:

Direct evidence is stuff like a confession ("I intended to kill him."), statements overheard by the accused "I'm going to kill that motherfucker," etc. This says, well, directly what the accused harbored in his mind.

Barring that sort of evidence, everything else is circumstancial, with some being more powerful evidence than other stuff: did the accused plan the attack? Did he buy special bullets or a special gun in advance? Was there a delay ("cooling off period") between any provocation and the murder? Did the accused walk over to the person and shoot them in the back of the head, or were they firing from 50 feet away? With firearms, there's always the argument that "you don't shoot at a gun at someone and not really intend to kill them," but that only goes so far; what caliber was the weapon? Did they shoot the victim multiple times?

Putting all of those things together can add up to proof that the accused actually intended to kill someone and was not firing in anger, not caring whether someone lived or died, hoping to scare someone, thinking he might wound but probably not kill someone, etc, etc.
posted by MoonOrb at 6:22 PM on June 11, 2013


So why isn't this defense used in EVERY murder case where the murderer uses firearms and doesn't actually say, "I'm going to kill you."?
posted by lupus_yonderboy at 6:24 PM on June 11, 2013


Meanwhile in Florida.
posted by lupus_yonderboy at 6:26 PM on June 11, 2013


Also note that the mens rea requirement in Texas is intentional OR knowing. The prosecution could try to prove that you actually did intend to kill so-and-so, but they could settle for merely showing that you knew, or should have known, that your actions were reasonably certain to kill that person. So, if you shoot someone in the chest at point blank range, the prosecution doesn't need to prove that you consciously intended for that person to die - you knew (or should have known) that point blank shots to the chest are reasonably certain to kill people.

Depending on the circumstances, shooting at a moving vehicle may or may not trigger such reasonable certainty. It's not enough that it's possible or probable that death or bodily harm could result from shooting at cars in general.
posted by Sticherbeast at 6:38 PM on June 11, 2013


lupus_yonderboy: "So let me get this straight.

I can get into a beef with someone in Texas, fire at their car while driving away, kill them, and get off because it can't be proved I intended to kill them?
"

"Get off" what? A murder charge, or a manslaughter charge? Because whether or not your sentence is "straight" depends on which you're talking about.
posted by Bugbread at 6:40 PM on June 11, 2013 [2 favorites]


Also, I've always been under the impression that the difference between manslaughter and murder was intent. I see a lot of folks talking about this as if it were a purely Texas thing. Is the differentiation between manslaughter and murder an unusual one, unique to Texas or found in a minority of US states? Or is it the way that it's parsed that's unusual/unique?
posted by Bugbread at 6:45 PM on June 11, 2013


It varies across jurisdictions. Every place has its own weird spin on things. Since this is a Texas case, we're basically just talking about Texas.
posted by Sticherbeast at 6:52 PM on June 11, 2013


lupus_yonderboy--What is making this case so frustrating is that there was no lesser included charge. A lot of times in murder cases there may be some evidence that the killing was done with the specific intent to kill (first degree murder), but maybe the evidence isn't powerful enough to eclipse the beyond a reasonable doubt threshold that we insist upon in our system of justice. In virtually every case, though, instead of a choice between "enough to prove beyond a reasonable doubt that accused specifically intended to kill" and "get out of jail free card," there is a choice like "still guilty of murder, but murder in the third degree" "not guilty of murder but guity of manslaughter," or "not guilty of first degree murder but guilty of murder committed while in the commission of a felony."

And, in practically every first degree murder case where it's admitted the accused did kill the person but not admitted that they specifically intended to kill anyone, the accused will in fact raise this defense. It just usually will result in them being convicted of some other crime instead of first degree murder.
posted by MoonOrb at 6:58 PM on June 11, 2013 [1 favorite]


Some of you clearly have not watched enough Law & Order. It's not Texas being weird that intent and/or premeditation is a requirement in order to charge someone with first degree murder.
posted by rtha at 7:09 PM on June 11, 2013


Well to be fair I try not to take legal advice from TV.
posted by Mitheral at 7:11 PM on June 11, 2013


But it's ripped from the headlines! Which are also always accurate!
posted by rtha at 7:16 PM on June 11, 2013


Sticherbeast: "It varies across jurisdictions. Every place has its own weird spin on things. Since this is a Texas case, we're basically just talking about Texas."

I know that no two states will be exactly alike, but is there a general breakdown into a few major categories?

Not being remotely lawyerly, I just glanced over at Wikipedia (yeah, I know, Wikipedia), and it broadly defines first, second, and third degree murders as all being crimes where a person kills someone with the intent to kill them, and manslaughter being a crime where a person kills someone but not with the intent to kill them. But it seems like quite a few people are casting the "killing without proven intent = manslaughter" concept as a crazy Texas thing. Are these folks just being ignorant of the laws of their own states, or is there actually a difference between Texas and other states that I'm not catching, or is there a big split, where there are a bunch of states where the law is A, and a bunch of states where the law is B, and Texas is in category A, while those Mefites are from category B states?
posted by Bugbread at 7:16 PM on June 11, 2013


California:

187. (a) Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought. [subsections about legality of abortion deleted]

188. Such malice may be express or implied. It is express when
there is manifested a deliberate intention unlawfully to take away
the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing
show an abandoned and malignant heart.
When it is shown that the killing resulted from the intentional
doing of an act with express or implied malice as defined above, no
other mental state need be shown to establish the mental state of
malice aforethought. Neither an awareness of the obligation to act
within the general body of laws regulating society nor acting despite
such awareness is included within the definition of malice.

189. All murder which is perpetrated by means of a destructive
device or explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate,
and premeditated killing, or which is committed in the perpetration
of, or attempt to perpetrate, arson, rape, carjacking, robbery,
burglary, mayhem, kidnapping, train wrecking, or any act punishable
under Section 206, 286, 288, 288a, or 289, or any murder which is
perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the
intent to inflict death, is murder of the first degree. All other
kinds of murders are of the second degree.

192. Manslaughter is the unlawful killing of a human being without
malice. It is of three kinds:
(a) Voluntary--upon a sudden quarrel or heat of passion.
(b) Involuntary--in the commission of an unlawful act, not
amounting to felony; or in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and
circumspection.

[emphasis mine, because it's a wonderful phrase]
posted by rtha at 7:24 PM on June 11, 2013


Ok, so if I'm reading that right, then if the exact same crime happened in California, and the prosecutors made the exact same arguments, then this exact same verdict could have been passed in California as well, right? I don't see anything in the California law snippet above that would necessitate a different verdict.
posted by Bugbread at 7:33 PM on June 11, 2013


There is a broad breakdown in how these crimes are conceived of and charged, but the terminology differs.

The mental state for each is roughly something like this:

First degree murder: specific intent to kill
Felony murder: intent to commit underlying felony
Nth degree murder, sometimes called manslaughter: no specific intent to kill, but either extreme indifference to human life or intent to cause grievous bodily harm
In some jurisdictions--"voluntary manslaughter": intent to kill exists, but certain mitigating circumstances exist, too ("heat of passion" killings, where you really did mean to pick up that knife and kill someone with it, but you acted on some crazy impulse; we think this is not as horrible as a more calculated, cool decision to kill someone).
Involuntary manslaughter: no intent to kill, but you are still criminally culpable--this is a middle ground between "extreme indifference to human life" and "criminally negligent." Think "recklessness." This is sometimes charged when you kill someone while you commit a crime that is not a felony, too.
Negligent homicide: This is not an intentional killing, but your criminal culpability is not as high as involuntary manslaughter. I don't know if every jurisdiction has this, or distinguishes between involuntary manslaughter and criminally negligent homicide in the same way.

In any case, there is not really a standard way to differentiate among these crimes, although the general principle is the same in each jurisdiction. At one end of the spectrum is what is widely considered the most culpable homicide: specific intent to kill in the absence of mitigating circumstances. Then there is a gradation where at the other end there is unintentional homicide, where you didn't intend to kill someone at all, and probably did not intend to even hurt anybody, but your actions are still sufficiently wrong that it's not just a non-crime accident. Somewhere in between is the felony murder rule where it doesn't matter if you intended to kill someone or not as long as you intended to commit the felony that you are committing, and someone dies as a result of it.
posted by MoonOrb at 7:56 PM on June 11, 2013 [2 favorites]


That's my not-a-lawyer read as well, Bugbread.
posted by rtha at 7:57 PM on June 11, 2013


Oh, and bugbread, yes, I think you're right. What is "Texan" about this case isn't that the prosecutors charged the defendant only with first degree murder and failed to assert lesser included offenses; what is "Texan" about this case is that, at trial, the defense tried to claim some kind of "defense of property" argument. One frustrating aspect of this case is that because the jury could not convict the defendant of anything less than first degree murder, some have inferred that the jury must have been persuaded by the "defense of property" line of argument.
posted by MoonOrb at 7:58 PM on June 11, 2013



Eventually, these states that idolize the Wild West aesthetic will become what the aspire toward, and their citizens will be so surprised that it's not the paradise they expected.


I can't imagine Al Swearengen would be too happy about this.
posted by Charlemagne In Sweatpants at 9:32 PM on June 11, 2013


Oh, and bugbread, yes, I think you're right. What is "Texan" about this case isn't that the prosecutors charged the defendant only with first degree murder and failed to assert lesser included offenses; what is "Texan" about this case is that, at trial, the defense tried to claim some kind of "defense of property" argument. One frustrating aspect of this case is that because the jury could not convict the defendant of anything less than first degree murder, some have inferred that the jury must have been persuaded by the "defense of property" line of argument.

I wouldn't say that there's anything inherently Texan about overcharging. Not knowing how Texas runs things, I don't know how much of the failure to actually include the lesser included offense was the prosecution's screw up.

The "defense of property" angle is certainly uniquely Texan, but novel/weird/bad legal arguments are common everywhere. This one also happens to be attention-grabbingly offensive, which is why we're reading about it, but Texas is not the only place on the planet where things can be offensive.

Another important issue: Texas lacks depraved heart murder, which is relevant to this case. In many states, there is a way to get a murder conviction premised not so much on specific intent to kill, but rather on a callous disregard for human life, depraved indifference to human life, or other similar ways of saying the same thing. It's sort of like "gross recklessness". It's not just that you've knowingly created a substantial and unjustifiable risk but you're proceeding anyway, but that you also have an extreme indifference as to others' lives. Depending on the circumstances, firing on an occupied vehicle could easily qualify.

People also seem to be upset that shooting at an occupied car did not automatically prove the intentional/knowing mens rea requirement for murder in Texas. However, this is a classic "it depends" sort of issue. Depending on various factors, it may well not be enough that the shooter fired at a moving vehicle, especially if only the murder charge is in play. It doesn't matter that you yourself follow basic firearms safety. You can't impute intent from others' stupidity or incompetence.
posted by Sticherbeast at 5:42 AM on June 12, 2013 [2 favorites]


Another important issue: Texas lacks depraved heart murder, which is relevant to this case. In many states, there is a way to get a murder conviction premised not so much on specific intent to kill, but rather on a callous disregard for human life, depraved indifference to human life, or other similar ways of saying the same thing. It's sort of like "gross recklessness".

This, for me, is the crux of the problem here. I don't think that it makes sense to treat an actual intentional killing the same as a killing resulting from an act of extreme recklessness. Pointing a gun at someone's head intending to kill them is different from firing at them without any intention of killing them; the point where you make a decision that your object is to take away someone's life should be an important line. The punishment for both should be extreme, but they're qualitatively different, for me.
posted by Bulgaroktonos at 5:59 AM on June 12, 2013 [1 favorite]


Ok, so if I'm reading that right, then if the exact same crime happened in California, and the prosecutors made the exact same arguments, then this exact same verdict could have been passed in California as well, right? I don't see anything in the California law snippet above that would necessitate a different verdict.

California's murder statute is broader than that of Texas. This shooting would have more easily gotten a murder conviction in California, as implied malice murder, which is a form of second degree murder. Implied malice murder is California's own version of what other jurisdictions call depraved heart or depraved indifference murder.
posted by Sticherbeast at 6:06 AM on June 12, 2013


Yes, looking at the Texas homicide statute suggests that reckless disregard for human life is not sufficient; there must also be an intent to cause grievous bodily harm. So in the case of pointing and discharging a firearm in someone's direction, while in most jurisdictions that would be enough for this type of lesser included offense, apparently in Texas you need also prove that there was an actual intent to injure. Which is a little weird, because there aren't going to be that many cases when you fire a gun at someone with the intent only to hurt them badly but not kill them. You would think either you are intending to kill them (1st degree murder) or you are extremely reckless as to the consequences of firing a gun in their direction, but it would be the uncommon case which falls between- at least regarding firearms. The statute does fine for other types of homicides, like assaults that wind up with the victim dying.
posted by MoonOrb at 6:32 AM on June 12, 2013


Pointing a gun at someone's head intending to kill them is different from firing at them without any intention of killing them...

Said with a Brooklyn accent: "But, but, offissah, I wudn't tryin to kill nobody. I was just trying to make blood and brains come outta his head."
posted by Mental Wimp at 9:40 AM on June 12, 2013


Women as commodities:
Man calls Solihull police to complain about prostitute's looks
West Midlands Police said they were contacted by the caller who said he "wished to report her for breaching the Sale of Goods Act".

posted by Joe in Australia at 6:44 PM on June 13, 2013 [1 favorite]


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