9.27.2019

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








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Random Friday Morning Thoughts



  • Ukraine:
    • Watergate never moved as quickly as this scandal has over the last three days. 
    • The tip-off was when the Administration went into full damage control by releasing a memo which, despite being its best version of the facts, is so damaging you have to wonder what the true transcript says. Trump never goes on the defensive and he did.
    • Then we learn the true transcript is so politically damaging that it was placed on a super secret system reserved for national security concerns and there are probably others.
    • The hearing yesterday with Joseph Maguire, the acting director of national intelligence, demonstrated the Republicans had no defense for Trump's conduct. They can't attack the Whistleblower's allegations because he has been shown to be correct even based on the limited memo, and they can't attack his character because Maguire said the whistleblower "did the right thing" and called the situation "unprecedented."
    • After Maguire said "he would to the best of his ability . . .  offer [the whistleblower and his sources] the full protections of the whistleblower statute to prevent acts of possible retaliation", Trump was recorded as saying "You know what we used to do in the old days when we were smart? Right? The spies and treason, we used to handle it a little differently than we do now." Treason is punishable by death.
    • Trump is out Nixoning Nixon.
    • The question in my office yesterday was if and when the Republican senators would finally turn on Trump. If so, it's over.  I don't think it'll ever happen. But if this ship goes down, people like Ted Cruz shouldn't be allowed to jump off. He sold his soul to Trump. That should have consequences. 
  • Can we just impeach him for being the dumbest man alive?
  • Some people are like Brad. Don't be like Brad.
  • Good lord. 
  • Our local Texas Ranger is featured in the Los Angeles Times.
  • Amber Guyger:
    • The State rested yesterday. Yep, that's all they had.
    • Amber may very well testify today. I'd certainly put her on the stand, but I could see the defense now having second thoughts since the State's case was such a dud. But the defense promised the jury she would testify during opening statements, so they are stuck with it. 
    • Even when I'm 99% sure the defendant will testify I always tell the jury: "You may hear from him or you may not. I don't know. It is truly his decision. But it may very well be that that the State's case is so weak that there's no need for him to explain anything at all. Remember, if the State can't prove their case beyond a reasonable doubt, the judge will tell you that you can't convict him. And you've promised me you won't hold it against him if he chooses not to testify." That at least gives me an out. Amber's lawyers didn't create that out. 
    • Once both sides rest and close, the jury instructions are going to be insane. Heck, they are ridiculous in even a simple criminal case. The terminology going forward is that the jury will be given the "Court's Charge." It will contain definitions of what the law is and one multi paragraph question applying them (i.e. "If you find . . . but if you also find . . . . "). 
    • The charge is critically important because the lawyers will be able to stand in front of the jury and say, "The judge has told you the law is . . . ." Even better, the defense can stand up and say, "Look at page 6. The judge is telling you what the the law is about self-defense  -- and it's what I've been telling you all along. She has told you that if you have a reasonable doubt about [insert x], then you must find her not guilty." So, in complicated legalize, a lawyer wants as much good stuff in the charge as he can get. 
    • The first thing I would have done if I were representing her would have been to create the jury charge. (It's really Trial Law 101. You prepare and tailor your case based upon what the instructions the jury will be given. You focus from the get-go on what the jury will be faced with. ) And once I confirmed there is not an appellate case out there concerning jury instructions which even remotely concerns this bizarre fact pattern involving Mistake of Fact and Self-Defense (there's not), I'd consult the smartest lawyers I know to get their opinion on what should be in it. If there had even been a trial before which had Mistake of Fact and Self Defense, I'd got to the district clerk and get a copy of that charge as a starting point. And then I'd prepare it. 
    • If Amber is convicted, the greatest chance that the case will get reversed on appeal is the judge refusing to include an instruction in the charge requested by the defense. The judge isn't bad, but she's proven she's no scholar (she's already commented on the evidence which, although harmless so far, is something a judge knows to never do.)  If you are watching the trial, watch the upcoming part when both sides rest and the lawyers are asking the judge for specific instructions they want in the charge. I think it will be wildly entertaining especially since I don't think the prosecutors, amazingly, have completely thought about it like they should have. 
    • One thing that has not been mentioned is that it is very common for a jury to be instructed on the issue of "apparent danger" in self-defense cases involving deadly force. It's really a "mistake of fact" defense in this scenario: A defendant thought the victim was pulling a gun on him so he shot and killed him. Turns out, the guy was not pulling out a gun but some innocent object. Yep, it's still a defense. Even placing aside for a moment the mistake of going in the wrong apartment, "apparent danger" is going to be a big player in this case.  Once she opens the door, if it was reasonable for Amber to believe Botham Jean was a threat to her life, from her standpoint, then the jury will be instructed to acquit. Here's an example out of a book widely used by trial judges (I got it from a trial judge.): 
    • And one more thing about the "apparent danger" defense that is critical: The jury will be instructed the State must prove beyond a reasonable doubt that she didn't have a reasonable belief she was in apparent danger. Man, that's a crazily high burden. 
    • It boils down to this: Once Amber Guyger walked into the apartment believing it was her apartment, did she reasonably believe that deadly force was necessary even if she was factually wrong about the need to use deadly force. If you want to say she probably should have just tazed him or should have retreated, that's fair but that's not enough to convict. Once again, the State must prove beyond a reasonable doubt that she didn't have a reasonable belief that deadly force was necessary.
    • I continue to believe whether she was reasonable or unreasonable in going to the wrong apartment is a red herring. It is her conduct from the moment she opened the door is what the trial is about.
    • Whether she should have provided medical care to him immediately after the shooting is also a red herring as well. (The lack of no blood on her uniform is absolute a b.s. stunt on the State's part.)
    • This case drives me crazy. And that defense lawyer who was providing commentary yesterday during the breaks on WFAA's live feed would never be my co-counsel. 
    • Watch it live here.
  • I've criticized TCDLA for some of their stupid trial tips in the past. They actually got one right yesterday. 
  • The Star-Telegram has a long feature story today on Ashley Fouts, the Boyd volleyball player who passed away in her sleep. 



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9.26.2019

Random Thursday Morning Thoughts


  • Amber Guyger:
    • It was outside of the presence of the jury, but the lead Texas Ranger investigating case, David Armstong, said on the witness stand that Guyger did not commit a crime and was reasonable in using self-defense. The judge won't let the jury hear this.
    • WBAP's Hal Jay this morning: "Now which side hired David Armstrong?" Think I was punching my dashboard at that moment? 
    • This trial is so weird because the facts are basically not in dispute. And trials are, by definition, for the jury to decide what the facts are. 
    • A big moment in opening statements that no one seems to be talking about: The defense attorney promised the jury that Amber would testify. From the very beginning of my criminal defense career, I've been in the minority by almost always putting the defendant on the stand at trial. Your chances of winning without doing so are simply not good at all. 
    • The DA's office is on an island in this case. Realize that every law enforcement officer who testifies is by and large not in favor of this prosecution. 
    • Tomorrow I'll try to get you my best guess as to the exact instruction that the jury will be given for "mistake of fact." 
  • Juul, the vaping company, announced yesterday that it will end almost all of U.S. advertising.  That's a huge hit to the print media. (As an example, I ended up with a subscription to Wired over the last year and it would not be unusual to see Juul with three or four full page ads in it. And there wasn't much advertising in that magazine to start with.)  Adweek says they spent $104 million in advertising in the last six months. 
  • For those who use Reliant Energy, are you getting killed with high bills right now? I've got a sample size of three that show they are over-the-top unusual even for the hottest time of the year. 
  • Ukraine-gate:
    • The release of the memo (it's not a transcript) is an Orwellian Test. Do you reject the evidence of your eyes and ears?
    • At least Nixon tried to be discreet.
    • The White House, being the White House, accidentally released to Democrats the "talking points" oh how to address the memo. First and foremost, everyone was to say there was "no quid pro quo." 
    • Trump then quickly regurgitated the talking points which had been quickly regurgitated by Fox News:
    • Direct? I had no idea that the words "quid pro quo" actually had to exist much less literally used in order for there to be a scandal.   I suppose people who throw around Latin might say "quid pro quo" from time to time, but I suspect people from Trump's neck of the woods would say,  "I would like to ask you a favor though" before I commit to anything.
    • Breaking: The Whistleblower complaint was just released.  We've got a Watergate Tapes 2.0 situation.  Literally. 
    • Remember when President Obama wore a tan suit?
  • Is a Texas search warrant valid if the officer admits he did not take an oath and swear that the affidavit to get the warrant was true and correct? Of course not, the Fort Worth Court of Appeals ruled in March. Yesterday, Texas' highest criminal court said it wants to decide the issue. Really? 
  • In another case which seems like a big deal, the court agreed to hear a case involving the propriety of allowing a witness at trial to testify via Facebook Live from Montana. 
  • The government of Texas executed a man last night by lethal injection even though the bailiff in the courtroom had a syringe print on his tie. The Supreme Court denied a stay of execution late yesterday afternoon.  In doing so, Justice Sotomayer said the wearing of the tie was "disturbing" and "deeply troubling" but that it was OK to kill the guy anyway. 
  • I haven't watch Ken Burns' Country Music documentary but over the last few months I've gone back and watched his documentaries on The West (1996) and Prohibition (2011).  They were great. Heck, all of his work is great. But you know who is the unsung hero in every single one of them? Narrator Peter Coyote. 

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    9.25.2019

    Random Wednesday Morning Thoughts



    • If you want to know what all this Ukraine controversy is about, read this from The Washington Post which was released yesterday evening. It's simple. It all makes sense. It's not just about a phone call. And Trump is finally concerned. And Rudy, the worst lawyer in America, is smack dad in the middle of it. 
    • Rudy was defending himself on Fox News last night saying that everything he did in the Ukraine was at the request of the State Department. He said he's documented it on his phone because "I'm a pretty good lawyer." The State Department had earlier said, "Not so much." If Giuliani was trying to get Trump impeached, which may very well happen, he couldn't have done a better job. 
    • Rudy would later yell at a person to "shut up", tell the host to "turn his mic off", called him an "idiot" and say, "Keep your lying mouth shut!"  He's doing well. Real well. 
    • The former Chief of Police in Jacksboro was indicted and our DA's office recused itself. A private attorney was then appointed as a special prosecutor (technically an "attorney pro tem"). The defense has now raised, by a filing yesterday, an interesting issue as they seek to have the private attorney removed.: A private attorney paid by the hour (by Jack County) as a prosecution has an inherent conflict of interest, the motion says. That is, there is a financial incentive to seek an indictment and take the case all the way to trial regardless of the merits of the case.  That creates a personal financial incentive to prosecute -- the more hours you put it, the more you make. The defendant's Motion points out that after the appointment in the case the legislature changed the law for future appointments so that private attorneys cannot be appointed as prosecutors -- the job must now go to a prosecutor from another jurisdiction without additional compensation above his/her normal salary. (Side note: The attorney pro tem in the Jacksboro case is currently also the attorney pro tem in the prosecution of a trooper in Wise County.) 
    • The Denton Record Chronicle is still after the story where the deputy shot and killed a fleeing man.  The Sheriff's office is being less than transparent. 
    • Looking at today's Messenger, anyone feel comfortable when a new reserve constable is described this way?: 
    • Amber Guyger trial
      • The State spent a lot of time yesterday pointing out that every other cop who came to the apartment in response to the shooting was able to go to the right place and didn't end up on the wrong floor. Why they want to establish this, I have no idea. By proving Guyger was absolutely zoned out, they are helping her establish the absolute defense of, "I thought I was in my apartment. I thought there was an intruder in my apartment. I shot and killed what I earnestly believed to be that intruder because I feared for my life."  
      • Let me say it for the millionth time: She didn't recklessly kill him. That's why it was not manslaughter. That's why she's not charged with manslaughter. She intended to kill him -- meaning she pointed a gun at him and pulled the trigger with the intent to kill. That's why it is a murder case with a defense of mistake.
      • These facts make the Amber Guyger case more understandable: Say you know of a husband and wife who had been fighting for months and rumors of an impending divorce were swirling. I mean, it's a bad and toxic relationship. You learn one day that the wife had been shot and killed by the husband in their home. But the husband immediately says, "I honestly thought that it was an intruder! I thought my wife was in bed!  I heard a noise and thought it was break-in!"  You buying that? Well, settling the issue in a criminal trial would make perfect sense and it's easy to understand. If the jury believed he honestly thought it was an intruder (or technically even had a reasonable doubt about it), they would find the man not guilty.  If they believed beyond a reasonable doubt he was making that up, he would be convicted.  But at least it's a legitimate question with battle lines clearly drawn. With Amber Guyger, no one disputes she thought there was an intruder in her apartment. 
      • Now change those facts and have the husband shooting his son, who everyone knows he loved and cherished, in the middle of the night. Would there even be a trial? No. The DA would take the case to the grand jury and behind close doors recommend that they return a no-bill, and the case would be closed. 
    • That's a power move right there.
    • Never try to get snarky with young people on the Internet. It's their home field. 

    • The Money Changer In The Temple has moved on to a shake down cruise.  He's literally making money as a travel agent.
    • Messenger: Above the Fold


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    9.24.2019

    Random Tuesday Morning Thoughts



    • There looks like there were five people arrested in Wise County yesterday, with names that just happen to be Vietnamese sounding, for the rare charge of "Money Laundering  >=$150K<$300K." 
    • A faithful reader contacted me about my question about the once Rock Island Line railroad spur between Bridgeport in Jacksboro. He says that up until circa 1970 that the railroad tracks still existed between Runaway Bay and Fort Richardson in Jacksboro and was actually active for tourists. There would even be a fake railroad robbery on the return trip. I have no memory of that. 
    • Amber Guyger trial thoughts (stay with me here):
      • It's broadcast live online by every DFW affiliate. It's pretty fascinating -- especially for proceedings outside the presence of the jury. (Here's a good link this morning.)
      • I've said it from the start: I don't think she is guilty of  any Texas crime. But this case would stump the majority of very bright students in a criminal law course in law school. It's complicated. 
      • The State charged her with murder which is the intentional killing of another and there's no question she did that. Heck, the State, if they were going to roll the dice on this case, had to charge her with murder.  But the whole trial will be about the defense of whether she was justified, based upon the facts as she believed them, in using deadly self-defense. 
      • That's why I think she's not guilty. Just like there is no question that she intended to shoot and kill, there's also no question she actually believed she was in her apartment and was faced with an intruder. Does anyone in their right mind think she realized she was in the wrong apartment and shot the guy anyway? This case should be cut and dry. 
      • People throw around the crimes of Manslaughter (reckless killing) or Criminally Negligent Homicide but those theories don't fit this case because she intended to kill the guy. You see manslaughter cases for a guy running 80 mph through a school zone at 3:30 in the afternoon and strike and kill a child, or pointing a gun at a buddy and firing thinking it was unloaded when he was aware it could have been. In those cases there was no intent to kill but the conduct is so egregious that it violates the law. Amber Guyger intended to kill. This wasn't a reckless or negligent killing. This isn't a Manslaughter case.
      • But then the State confused everyone in an opening statement: "Amber Guyger made a series of unreasonable errors and unreasonable decisions and unreasonable choices."* Huh? That would make sense if this was a manslaughter/criminally negligent case where reasonableness of conduct is the issue. In case you haven't been paying attention, this is a murder case. 
      • And then the State put on evidence that Amber perhaps was distracted before the shooting by talking to her one-time paramour. And they showed the doormat in opening statement which obviously wasn't hers. That shouldn't matter to the State. They are completely on the wrong track.  They have not charged her, nor could they, with making huge mistakes (not realizing the may indicators she was on the wrong floor) which caused her to open a door to an apartment that was not hers. 
      • And here is the heart of the matter: It is not a crime to make mistakes, even unreasonable ones, which leads you to be placed in a position where you honestly believe that self-defense was necessary and then intentionally kill someone acting on that mistaken belief. It's horrible. It's tragic. But it's an accident under the law. It's not a crime. 
      • The question is not, "Was it reasonable she made that mistake about the apartment?" The question is,  "Did she actually make that mistake about the apartment?" If she did, or even if the jury has a reasonable doubt about whether she did, she's not guilty if she feared for her life. 
      • Being distracted, which the State for some reason is trying to stress, plays right into the hands of the defense. The defense wants the State to concede that Amber was distracted before she opened the door.  They want the jury to believe she was zoned out. Why? Because that all helps the defense position that she thought she was in her apartment and was confronted with an intruder.  (And they don't need a lot of help to establish that.)
      • There's no way a Dallas jury will understand any of this. I'm afraid they'll be confronted with an incredibly complicated "jury charge" (the instructions they get at the end of the trial regarding all applicable law which will include "mistake of fact"), jury arguments that have nothing to do with the actual law -- we already see this happening, and then just decide, "Is this case so bad that we need to convict her of something?"
      • And if their minds weren't blown enough, I bet this judge (who is a bit of a wild card) will improperly give the jury the option to convict her for Manslaughter of Criminally Negligent Homicide.  If that's the case, and they get confronted with the law regarding those offenses, this case will be a cluster.
      • * By the way, that's an improper opening statement. It's argument. 
    • Well, since Trump withholding $400 million from the Ukraine before he called them about Biden is nothing to worry about, I'm sure they'll release an (undoctored) transcript of the call as well as the Whistleblower complaint. 
      (Right after he releases his tax returns)
    • The Democrats will meet today in the afternoon to discuss impeachment. This might finally happen. He'll never be convicted in the Senate, but at least it'll by a symbolic gesture. And symbolic gestures have meaning. 
    • I'm not sure what I think about Cocky Troy.
    • Man, this young lady sure did trigger those in the far right wing yesterday who for some reason get really bent out of shape about taking any measures to treat the planet with respect. 
    • Random college football thought: If you get a chance, go back and find out in detail what happened in the UCLA/Washington State game late Saturday night. UCLA, which is not a good team, trailed 49-17 with 6:52 left in the third quarter. They won 67-63. There was no overtime.  It ended at 1:30 a.m. CST and has not received the coverage it deserves. It's even crazier than you would think. 
    • There are 179 people in the Wise County Jail. That's slightly below average. 



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    9.23.2019

    Random Monday Morning Thoughts




    • The verdict came back in the murder case in Wise County, and he was sentenced to 10 years in prison. The range was five to life.
      • My prediction was a guilty verdict with a sentence of 20 years. (I thought there would be a finding of "sudden passion" which would take the range of punishment to two to twenty years, and then, after doing him this "favor", they would max him out.) They didn't find "sudden passion" but that's really a meaningless and moot point since they came back under 20 years anyway. 
      • I'm not saying I thought he deserved 20 years, that's just what I thought the jury would do.  I saw him testify, and I'm not sure he endeared himself to the jury. Maybe I expected too much of the kid. If I'm on trial for my life, I'm not sure how I'd come across either. 
      • I never thought that was much of a self-defense case, and the jury quickly rejected it. But it wasn't so hopeless that the defense could just concede it and plead guilty to murder and focus on punishment. The defense team had to take a shot. 
      • The defense has to be happy with the sentence. They pretty much said so Friday evening. 
      • I didn't want to mention it while the trial was going on but the lead lawyer was the attorney involved in the Affluenza case -- a case which has taken on a life of its own versus what really happened.  More interesting, I thought, was that he was a young lawyer on a case which was eerily similar -- a high school student at Carter-Riverside who killed his allegedly abusive dad with a firearm in his home. It became a Texas Monthly story. 
      • The case epitomized criminal law: There are no winners. It is not fun. 
    • From the I-Have-No-Confidence-In-This-Case-At-All department:
    • This story calls it the construction of a new "swanky" luxury apartment complex at Alliance Town Center, but the address given is 9600 Blue Mound Road. That would be right by that Williamson-Dickie building on highway 287. 
    • I always considered Wise County to be home base of sand and gravel plants (or "rock crushers" to you and me.) Fun fact: There were 52 aggregate processing plants in Texas in 2012 but that numbers had soared to 934 in 2018.
    • I wondered if this thing would be back. It won't.
    • Along with a couple of federal judges, the White House announced on Friday the appointment of a new federal marshal who is currently the "Sheriff of the Police Department of Victoria County, Texas." I've never heard of a sheriff of a police department. 
    • When we drove up through the Panhandle this summer, I got to see where all those massive windmill blades traveling up 287 all the time ended up. It was quite the sight. The coolest thing, however, was on the way back and seeing them at night where a red caution light on each of them flashed on and off in perfect -- and I do mean perfect -- synchronization.  But the Panhandle isn't where most of them are:
    • Random history thought #1: I came across of map of railroads in Texas in 1927 (when that was the form of long distance transportation) and was surprised to see there was a spur off the Rock Island line that ran from Bridgeport to Jacksboro. I talked to my dad who confirmed it existed maybe as late as the 1950s. It ran pretty much along 380 before there was a 380 but there are no remnants of it today. 
    • Random history thought #2: I'm making my way though the 1000+ page book Texas by James Michner (it is "fictional history") and was interested to find an appearance of the real architect James Riely Gordon who designed the Wise County Courthouse. In the book, he was brought in to design a courthouse for a fictional poor county west of Jacksboro after (really) building the one in Waxahachie. Here's what he "said" to those at the county seat: 
    • Other than that "criminal" should be "person accused", that's pretty spot on.  I've long believed our courthouse should be restored to the way it was and turned into a museum. To call it amazing -- especially having been built in the 1890s -- is an understatement.  And it will "grow better" with time. (For those who, like I did, had no idea who Hammurabi was, there's the wiki page. Every time I think I'm smart, I'm reminded of how little I know.) 
    • Two photos related to the UNT/UTEP game below. One was an actual UNT cap that slipped past quality control. (A faithful reader bought it and sent me the picture of when he first saw it.) And the other is a UTEP fan photo which is almost hypnotic once you enlarge it and examine the subjects.

    • Former UT quarterback Jevan Snead has died with no signs of "foul play. Some were saying it was suicide, but I haven't seen anything to confirm it. He was a five star recruit who went to UT only to be quickly beat out by Colt McCoy. He then transferred to Ole Miss and did relatively well, and then gave up his senior year to enter the NFL draft. He wasn't drafted but signed by Tampa Bay as a free agent who then cut him before training camp. 
    • Speaking of suicide, I've often wondered why it's the policy of most media outlets not to report that cause of death. It's an epidemic and we just all pretend it doesn't happen. And if you want to know how much an epidemic it is, do this morbid exercise: Go to the Tarrant County Medical site and pull up the autopsies done over the last month. Then hit Ctrl+F and see how many are suicides. It's shocking. 
    • Messenger: Above the Fold

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