News The glory that is the Texas justice system

[Drakkith]

Do you have to prove theft, or does the prosecution have to prove non-theft (my understanding is that with the Trayvon Martin case, this is precisely the difficulty with prosecuting the case - even if Zimmerman is 100% guilty, proving that he was not covered by the stand your ground law beyond a reasonable doubt is exceedingly hard to do). I would guess the weight is on the prosecution

I'm pretty sure that you must have reasonable proof that theft took place.

 

[Fredrik]

It's certainly imaginable that the jury felt that aggravated assault with a deadly weapon better fit the crime than murder, and if they did not have the option of convicting Gilbert for that, they felt it was less unjust to acquit than to convict for a greater offense when he had committed a lesser offense. If this were the case, the prosecution made a tactical error when they "went all in" on the charges.

First plausible explanation I've seen that doesn't involve the jury or the law being extremely irrational. But I have to say that I think that paralyzing someone with a bullet to the neck, to a degree where she needs a respirator, is worse than killing someone with a bullet to the neck. (No, I don't mean that people in wheel chairs are better off dead. I think the fact that she needed a respirator shows that her paralysis was far more severe than that). I understand of course that this isn't about what's actually worse, but about what crime he can be found guilty of in a court of law.

 

[Fredrik]

The justification for killing her has nothing whatsoever to do with her being a whore!

It obviously doesn't justify it. But neither does anything else that's been mentioned in this thread.

If the verdict had anything to do with the shooting being "justified" (in a legal sense, by a really stupid law), then I find it hard to believe that he would have gotten away with it if some of the minor details in the story was different. If the woman had been there to buy a used iPhone and refused to pay for it, if the shooter had been black, if he had hit her with a baseball bat instead of a bullet fired from a gun,... These are all things that don't matter to a rational person, but someone who finds this justified isn't rational.

 

[MarneMath]

Um...that is the justification!

Let me explain more about what I was saying earlier: This law may have been written 100 years ago when the population in Texas was sparse and the reach of law thin (speculation). If the law isn't going to help you get your stolen property back, you should be allowed to try to get it back yourself, by force (heck, even today, the legal system is not a guarantee). Sure, this type of justice is now usually considered obsolete or excessive, but people here should be able to at least understand why it would have made sense at one time.

The law was put in effect in 1973. I'm pretty sure this law was obsolete back then too. (Heck it was modified in 1993!)

 

[russ_watters]

Do you have to prove theft, or does the prosecution have to prove non-theft (my understanding is that with the Trayvon Martin case, this is precisely the difficulty with prosecuting the case - even if Zimmerman is 100% guilty, proving that he was not covered by the stand your ground law beyond a reasonable doubt is exceedingly hard to do). I would guess the weight is on the prosecution

I'm pretty sure that you must have reasonable proof that theft took place.

Good question.

I would think that the prosecution would have to prove non-theft. In an "innocent until proven guilty" society, the burden of all proof is on the prosecution.

It gets even more complicated than that though: what if she thought sex wasn't included but he did? Or in the Zimmerman case, he thought he was in danger but wasn't? Typically, I think self-defense cases can be decided just on what the shooter was thinking even if it was wrong. Perhaps that's even the reason for the "at night" qualifier in the law. It is ambiguity as a defense.

 

[russ_watters]

First plausible explanation I've seen that doesn't involve the jury or the law being extremely irrational.

You have it backwards. If the law is irrational, then the jury showed a remarkable degree of rationality in properly and dispassionately applying it. Posters in this thread are acting like a lynch mob here but the jury chose to follow the law even if they didn't like it.

 

[russ_watters]

The law was put in effect in 1973. I'm pretty sure this law was obsolete back then too. (Heck it was modified in 1993!)

Good to know -- I'd still like more info about the law and its basis though. Particularly the qualifier about it being at night.

 

[BobG]

Do you have to prove theft, or does the prosecution have to prove non-theft (my understanding is that with the Trayvon Martin case, this is precisely the difficulty with prosecuting the case - even if Zimmerman is 100% guilty, proving that he was not covered by the stand your ground law beyond a reasonable doubt is exceedingly hard to do). I would guess the weight is on the prosecution

Both laws are ill advised, but the two situations are different. In Zimmerman's case, his irresponsible acts put him in a situation where the shooting would be justified - at least if it wasn't his own actions that created the situation, which really muddies things up. In this case, the shooter was outside the car and the car was driving away. The shooter was in no danger at all.

 

[Vanadium 50]

As Perry Mason would say "Objection! Assumes facts not in evidence!"

I am going to claim deep legal expertise, having gone on one date with the daughter of someone who used to be on Law and Order. And having watched lots of TV, I know that the jury returns a yes/no verdict. They do not opine on the legal arguments presented by the prosecution and defense teams.

Defense lawyers seldom give only a single argument. They want to poke as many holes as they can in the prosecutions theory of the case. We do not know this is the only argument they presented, and based on past experience, it is likely that it was not. We therefore do not know if the jury bought this argument or not.

There is some evidence that things are not as simple as the media - whose job it is to sell soap, remember - portrays. One very odd thing is that Gilbert was not charged with attempted murder while his victim was still alive: he was charged with aggravated assault with a deadly weapon.

 

[D H]

The law was put in effect in 1973. I'm pretty sure this law was obsolete back then too.

The entire penal code was completely rewritten in 1973. Prior versions were used in the rewrite. Rewriting the laws (rather than revising them) is something Texas legislators are won't to do. The penal code was originally written 1879, and completely rewritten in 1895, 1911, 1925, 1956, and 1973.

Good to know -- I'd still like more info about the law and its basis though. Particularly the qualifier about it being at night.

From the 1879 version of the penal code,

"Homicide is permitted by law when inflicted for the purpose of preventing the offense of murder, rape, robbery, maiming, disfiguring, castration, arson, burglary, and theft at night ... If homicide takes place in preventing a robbery, it shall be justifiable if done while the robber is in the presence of the person robbed, or is flying with the money or other article taken by him."​

Things moved around a lot between 1879 to 1925, but the wording remained pretty much the same. Texas legislators apparently have a long history of making work for themselves.

The current version doesn't say anything about justifiable homicide. It instead talks about use of deadly force:

"A person is justified in using deadly force against another ... to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property."​

 

[Fredrik]

"A person is justified in using deadly force against another [...] to prevent the other who is fleeing immediately after committing [...] theft during the nighttime from escaping with the property."​

That is incredibly disgusting.

Did any of the articles linked to above say that this law is the reason why this man was found not guilty?

 

[D H]

One very odd thing is that Gilbert was not charged with attempted murder while his victim was still alive: he was charged with aggravated assault with a deadly weapon.

Not so odd. Aggravated assault with a deadly weapon is a more serious crime than attempted manslaughter.

Aggravated assault is a serious crime. Add the "with a deadly weapon" and it's very serious. Aggravated assault is a second class felony in Texas, the same as manslaughter or murder mitigated by "sudden passion" (murder in the heat of the moment). Actively trying to commit a crime but failing to do so is still a crime, but it reduces the degree by one in Texas. Attempted manslaughter (or attempted murder in the heat of sudden passion) would be thus a third class felony.

 

[Office_Shredder]

I'm pretty sure that you must have reasonable proof that theft took place.

Actually this seems false upon googling

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.8.htm

(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

Notice the phrase "defense". If you look at insanity above, you see the phrase "affirmative defense". What's the difference?

http://www.sagepub.com/lippmanccl2e/study/supplements/Texas/TX_08.pdf

This describes an affirmative defense as something which must be proven by the defendant, and a defense as something which must be proven by the prosecution. So if I claim that I formed a reasonable belief that I was being robbed, you have to prove beyond a reasonable doubt that I could not reasonably believe I was being robbed (which is harder even than proving that I was not being robbed).

So it seems the (terribly written?) law is probably applied correctly. He hired a 30 minute escort for 150 bucks off Craigslist - as long as a reasonable person can believe he is hiring a prostitute (which I'm sure they can convince the jury a reasonable person would believe this), then even if he wasn't hiring a prostitute that belief is sufficient to kill her for robbing him

 

[nsaspook]

The current version doesn't say anything about justifiable homicide. It instead talks about use of deadly force:

"A person is justified in using deadly force against another ... to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property."​

I think one factor in the rational for the way the law is written is it's assumed in the state of Texas that everybody has a firearm (mainly true) and at night you can't see that firearm before it's used by the criminal to kill you in order to escape.

Property rights in general are strong in Texas. You don't ever trespass on a persons land without permission.
http://law.onecle.com/texas/penal/9.41.00.html

 

[Vanadium 50]

DH, I never mentioned manslaughter. My puzzlement is why Gilbert was not charged with attempted murder while his victim was still alive, but charged with murder when she died. Understanding that may give some insight into the jury's decision.

 

[Vanadium 50]

That does happen, and jury nullification sometimes is one of the sorry consequences of prosecutorial excess.

I think this is different than jury nullification, which is an acquittal on the grounds that the law itself is unjust.

Consider Boris The Burgler. Boris is captured one night leaving the estate of Thurston and Lovey Howell with a bag full of their jewelry. He is charged with robbery, with larceny as a lesser included offense. At trial, it comes out that a gun was not found on Boris' person, nor the Howell's estate, nor had anyone seen Boris with a gun. The jury finds Boris not guilty of robbery, since there is no evidence of a weapon, which is an essential element in the crime of robbery. However, they find him guilty of larceny.

Where it gets troublesome is when the DA charges Boris with robbery and not the lesser included offense of larceny. This is called "going all in" and DAs like to do this to avoid compromise verdicts. In this case, a jury might (and I would argue should) conclude that since there is no evidence of a weapon, there is no evidence that there has even been a robbery: evidence of a burglary, yes, but a robbery, no. Therefore they can't convict Boris on the charge of robbery, even though he is clearly a burglar. They might well wish to convict him on larceny, but he isn't charged with larceny. So he walks.

That's why I am interested in the facts of this case, and particularly the exact charges. Did the jury have the option to convict Gilbert on manslaughter or battery or assault with a deadly weapon? Or not?

 

[D H]

Property rights in general are strong in Texas. You don't ever trespass on a persons land without permission.
http://law.onecle.com/texas/penal/9.41.00.html

Yes and no. It has to be criminal trespass before one can use force. I've researched this very, very carefully.

I take my dogs for hour-plus long walks through some woods and other tangled vegetation (read the DH "meet a mentor" thread). I live in suburban Houston, so I don't own 100+ acres of land. I own less than a paltry 1/4 acre. Some of that walk is on community property (so I am a part owner), some is on undeveloped public lands, some on private lands. I have rather thoroughly researched the legality of my walks. As far as I can tell, my walks are completely legal.

I have made phone calls, etc., where I can discern ownership. Basically, the answer is "No problem, but don't sue us if something goes wrong. We'll sue you." In the one place where I can't discern ownership, there are no signs, no fences, no purple paint on trees to indicate that I am criminally trespassing. (There are no signs, fences, or purple paint on trees anywhere along that walk. Signs, fences, and purple paint on trees are the three things that distinguish criminal from non-criminal trespass in Texas.) That land of indiscernible ownership has zero economic value. It can't be used for ranching or farming, and it can't be developed because it floods almost every year. Because it's worthless, whoever owns it does nothing to protect it.

 

[D H]

DH, I never mentioned manslaughter. My puzzlement is why Gilbert was not charged with attempted murder while his victim was still alive, but charged with murder when she died. Understanding that may give some insight into the jury's decision.

This man quite literally acted in the heat of sudden passion. That would bring murder (nominally a class one felony) down to a second class felony in Texas, the same as manslaughter. That he didn't kill her (initially) would have dropped the magnitude of the crime by one more level to a third class felony.

There is no "sudden passion" escape clause for aggravated assault, particularly aggravated assault with a deadly weapon. Aggravated assault is a second class felony, period.

Within the second class felonies, murder (mitigated by sudden passion) is a more serious crime than is aggravated assault with a deadly weapon. Once she died, the charge rightfully switched from aggravated assault with a deadly weapon to murder (a class one felony). It would have been up to the defense to claim that the murder was mitigated by sudden passion.

 

[nsaspook]

Yes and no. It has to be criminal trespass before one can use force. I've researched this very, very carefully.

I'm also a Texas property owner (near Waco) so your points are well taken but even if it's completely unmarked it becomes possible criminal trespass as soon as the owner (or someone with apparent authority) says move on and you don't.
http://law.onecle.com/texas/penal/30.05.00.html

There have been people shot dead over the theft of trivial items of property in the state and nobody blinks an eyelash so nothing about this case is shocking to me.

 

[Ryan_m_b]

You have it backwards. If the law is irrational, then the jury showed a remarkable degree of rationality in properly and dispassionately applying it. Posters in this thread are acting like a lynch mob here but the jury chose to follow the law even if they didn't like it.

Come off it, no one here is acting like the were in a lynch mob. They are deploring the horrible fact that a woman was brutally murdered and her killer was allowed to walk free. I don't think the jury was rational (there was no need for the violence, she wasn't physically threatening him and the alleged theft had already happened by this point) and think that in his case the legal system has failed to provide justice.

 

[Vanadium 50]

I just spent more time than I had intended researching this on non-social media. Things are sparse, frankly. Most of what's on the intertubes are people citing very indirect sources and working themselves up in a tizzy. Here are some reported facts that are not to be found on the tizzynet.

1. The jury was not given instructions that they could convict Gilbert on manslaughter. The difference between murder and manslaughter is intent, and that means that the prosecution needs to prove intent beyond a reasonable doubt.

2. Gilbert claims that he was attempting to stop the fleeing car by shooting out the tires. As it happens, the tire was hit, and a fragment from that bullet hit Frango.

3. Defense lawyers offered up multiple defenses (which is their duty), including the one that got everyone worked up. The defendant's own lawyer doesn't think that the jury was convinced by it. Contrary to what one might think by reading Salon or the Huffington Post, juries do not return a legal analysis of their decision.

 

[mheslep]

It's unfortunate that this thread could not start with the above (1-3).

 

[Tosh5457]

Being a Texas native I understand the mindset. People don't take kindly to low down night crawling scum.

Hey that guy took my lawn gnome, stop him!

Haha that video is brutal