He was aiming for the tire
Bridgette Dunlap says the reporting on that story about the Texas court that acquitted a guy of murder because he was defending his property was bad sloppy reporting.
A misreading of the verdict in a strange and 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 say that either. Pushing the idea that an “Insane Texas Law Made it Legal for a Man to Kill a Prostitute” is irresponsible; it misinforms the public and sends a terrible message to violent misogynists.
It is not in dispute that the defendant, Ezekiel Gilbert, paid the victim, Lenora Frago, $150 for 30 minutes of escort services advertised on Craigslist. After Frago refused to have sex with him, the defendant shot her. Frago was paralyzed and the defendant was charged with aggravated assault. When she died seven months later Gilbert was indicted for murder instead.
The defense attorneys did argue that Gilbert was justified in shooting Frago because she had stolen from him and Texas law permits the use of deadly force to defend one’s property at night. That law is horrible and the defense is horrible, but that doesn’t mean it’s why the jury acquitted Gilbert.
The much more plausible reason for the verdict is that the jury believed the defendant’s claim that he didn’t intend to shoot the victim. Per Texas’ homicide statute, the prosecution needed to prove that Gilbert “intentionally or knowingly” killed Frago or intended to cause her “serious bodily injury.” The defense argued that Gilbert lacked the requisite intent for murder because when he shot at the car as Frago and the owner of the escort service drove away, he was aiming for the tire.
And he hit the tire, but a tiny piece of it hit Frago. (But she died, so doesn’t that make it murder? Morally, maybe. In Texas law, no. In the law of many states and countries, no – the law does distinguish based on intent.)
Unless someone has interviewed a juror or can read minds, they cannot claim the jury agreed the killing was justified. And the juries do not “cite” laws. They find facts and decide “guilty” or “not guilty.” And it isn’t accurate to call Frago a “prostitute.” Witnesses for the prosecution testified she was an escort who never agreed to have sex. Rather than siding with the killer’s characterization, writers should at least say “alleged.”
One would expect the jury to find that shooting at a car with an AK-47 is at least “reckless,” in which case he could have been convicted of manslaughter. But the prosecution didn’t charge him with manslaughter, only murder. Manslaughter is a “lesser included offense” of murder and the judge is entitled to instruct the jury if the evidence supports that charge, but it appears she did not. The jury can’t convict on a charge that isn’t before them.
I think Texas’s defense of property law is abhorrent and my gut reaction was that it was a reprehensible defense. This reaction suggests, that you should think twice before hiring me as your defense attorney, sadly. 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.”
H/t Nick Little, George Felis
Manslaughter might have been the correct charge, or not. If this happened here in NZ the relevant statute would be the Crimes Act 1961. This defines murder and manslaughter.
For the current case the key difference to decide on would be “does clause 167 (d) apply”
Shooting a gun in the direction of a person has to skate pretty damn close to the bone. Although, maybe the Texas defence of property bullshit makes the shooting lawful? Takes me back to my earlier speechless state.
Of course, NZ probably also doesn’t have a make-my-day law, or a law that says you can shoot an unarmed person if you think it is reasonable to find them scary, and can convince a jury of that (cf George Zimmerman). Women and people of color scare (or piss off) all these gun toting white men to the point they just can’t control themselves anymore and have to start shooting.
Even if he had succeeded in shooting out the tire instead, that is also quite risky. Shooting out the tire of a moving car can lead to serious physical injury, though in this case the car probably wasn’t going very fast if they had just gotten started. Still, it is a desire to harm, because most of us know from an early age (especially if we watched enough movies or cop shows on TV) that shooting the tire of a moving car can cause a loss of control that can lead to serious problems.
If the judge did not instruct them on manslaughter, then the judge is at least part of the problem..
Fuck guns. I’m not saying there’s not a whole mess of other things wrong here, or that guns are even the primary cause of this kind of shit in our world. Yes, the house is on fire… but lately, I’m just so goddamned sick and tired of idiot housemates who think the best response is to douse the flames with gasoline.
What’s the story here, where does it end, if it weren’t for, Dumbfuck Eziekiel Gilbert had a fucking gun? I’m not naive enough to think it’d be a happy story. But at least it’d a story where Lenora Fargo lives to see the ending.
Iknklast, all true. Not that we are some kind of paradise. People have shot at others who they found threatening, stealing there property or generally pissing them off. It’s a rarity, but it happens. Prosecutions ensue, even for non-fatal events. I can’t think of anything even remotely comparable though in terms of what amounts to a contractual dispute turning into a wrongful death by shooting.
NZ and Australia are both ranked fairly highly in terms of gun ownership (22nd and 26th in the world respectively), but the culture surrounding guns – outside of criminals I guess – is one of hunting or target shooting, not just owning for the sake of it. You have to be licensed to own a gun, which involves a process that would make the NRA froth at the mouth. If you told the police that you wanted a gun for personal or property protection your chances of getting a licence would plummet unless you could prove that ISIS had a team in the country who were actively hunting you. Even then, they’d probably say no and put you in protective custody.
@ ^
In Australia, personal protection is specifically disallowed as valid reason for owning a gun.
It would have been manslaughter in the UK too, defined as
I agree with the OP. It was an appalling result.
iknklast: IANAL, but from what I remember about other cases I’ve read about, in American jurisprudence, the prosecutor determines which charges to file–the judge cannot instruct the jury about the possibility of a lesser charge.
The prosecutor can file multiple potential charges at once, in order to allow the jury to choose between them, and in that case, the judge’s instructions would include the basis for the distinction. (It’s possible this also might vary from state to state.) However, prosecutors are often reluctant to file different-tier charges because they make it less likely the jury will convict on the greater charge. If the prosecution thinks they’ve got a solid case for murder, then, they roll the dice going for the big win.
There’s also the felony murder statute, which differs from jurisdiction to jurisdiction, but basically says that manslaughter becomes murder if it occurs while committing a crime. Sadly, as far as I can tell Texas doesn’t have that rule. It has a different rule, which only says that accomplices to murder are as guilty as the murderer. So apparently (and IANAL) in Texas it’s possible to run someone over with the getaway car after robbing a bank and be guilty of only manslaughter.
That’s more unfortunate because assaulting someone with a weapon is a 2nd degree felony in Texas, which means that killing someone unintentionally while assaulting them would be felony murder if Texas had a felony murder statute. Assault, like manslaughter, was not included in the charges that were placed before the jury, or they could at least have convicted him of aggravated assault with a penalty of 2-20 years. If they had refused to convict him of assault, then all the outrage sparked by the original report would be completely justified.
Why the prosecutor charged only murder, I don’t know. One approach is to charge everything applicable, in hopes that one of the charges will stick. The opposite approach is to charge the most serious crime you think you can get a conviction for, on the theory that juries will hedge their bets by convicting of a lesser crime given the opportunity. In this case aggravated assault carries a possible 20-year sentence, so it’s mysterious to me why they failed to charge with that, plus manslaughter, plus murder.
Texas has felony murder. 19.02(b)(3).
But its not relevant because the merger doctrine disallows using felony murder to replace an existing manslaughter statute.
You’re probably right about the prosecutions motivations in selecting charges.
I think the “Texas says its ok to shoot a prostitute if she won’t have sex with you even though you paid because you’re just defending your property” spin was so obviously and self evidently false that the people who bought it ought to engage in a little introspection about the apparent blind spot in their BS detection.
As Steamshovelmama says, it would be manslaughter in the UK (assuming the jury believed that he was aiming for the tyre). The mens rea for murder requires that the defendant intended to kill or commit grievous bodily harm (so it would not be a defence to say he shot to wound, not kill).
In the UK, he would also be convicted for possessing an offensive weapon.