Based upon the agreed facts conceded by her own attorney in his opening statement, former Dallas Police Officer Amber Guyger is guilty of murdering Botham Jean. For all who think she did not commit murder, I would ask that you look to the Texas Penal Code to correct your misunderstanding of the law. I would also ask those of you who do not think she is guilty to consider that many of us of all races, ethnicities, life experiences and orientations are often far more empathetic to people with whom we believe we share some type of facially perceived homogeneity. We should all recognize that people tend to side with people with whom they can easily identify with or see themselves in. And a lack of perceived homogeneity often creates a false barrier to empathy that we should all seek to deconstruct and defeat within ourselves. But I do not want to focus this piece on a discussion of the biases that exist in many Americans and the impact those biases have on how we perceive news stories. Instead, I want to focus on the law and articulate a clear legal argument for former Officer Guyger’s guilt.
Botham “Bo” Jean was a 26 year old accountant. He was deeply devoted to his family, his job, singing and his Christian faith. He was not someone defined by the small amount of marijuana Dallas PD trumpeted to the media that they had found in his apartment in the aftermath of the shooting in an attempted character assassination. That misguided attempt to create a false narrative by the Dallas Police Department hopefully disgusted all of us and should result in the officers involved in that second attack on Mr Jean also being terminated.
In the aftermath of the shooting, protests consumed Dallas demanding that Officer Guyger be charged with murder. And many other people responded that this was simply a horrible mistake and that any charges would be unjustified. Despite the pushback, she was initially charged with manslaughter, terminated and, subsequently, her charges were appropriately upgraded to murder. Her criminal trial finally began this week. The protests continue by those who think justice will be denied as do the declarations on social media by those that posit this was nothing more than a horrible accident that lacked criminal intent.
The legion who hold the latter position find their uninformed argument being echoed by the attorneys for the defense. In his opening, her lawyer asserted, Ms. Guyger, “firmly and reasonably believed that she had no choice. She had no option but to use her gun to keep from dying.” This is such horrifyingly bad lawyering that I am shocked that I am the first I see mentioning it in the media or on social media. And before you issue a rejoinder, let me explain why this is murder and her defense is not a defense using only the agreed upon facts without examining the disputed issues. I am also surprised that the State devoted significant time on the first day of the trial to attempting to establish that it should have been apparent to Ms. Guyger that she was on the wrong floor of her complex. That fact is not necessary to secure a victory in this case and, apparently, the lawyers at the Dallas County DA’s office have never been overworked, exhausted and on auto pilot.
The relevant portion of the Murder statute in the Texas Penal Code states a person commits the “offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual....” Many who aver that Ms. Guyger is not guilty of murder assert that she is, at worst, guilty of manslaughter. Manslaughter in Texas is defined as “a person commits [manslaughter] if he recklessly causes the death of an individual.” I could see how these statutes as applied to this scenario could be confusing to the layperson but I do not see how any lawyer could not understand how the defense attorney is conceding his client’s culpability with his opening statement.
The mistake, accidental or reckless act of Ms. Guyger was entering the wrong residence. There are some who have suggested she did not enter the wrong residence and that, instead, some prior relationship existed and this was the targeted execution of a black man by a white officer. I have seen no evidence to support this narrative and, as previously mentioned, there is no tactical or legal reason for the prosecution to argue this because it is completely unnecessary to obtain the desired murder conviction.
There are media reports in the immediate aftermath of the shooting that state that then-Officer Guyger conceded she was carrying items and fumbling with her keys in an attempt to open what she though was her door and she immediately shot Mr. Jean when he opened the door to his home in his underwear and she mistook him for an intruder. The media got this wrong OR her story “evolved” in an attempt to construct a defense. She later stated she entered Mr. Jean’s residence after inserting her key because the door was slightly ajar (the doors at South Side Flats automatically close) and was in fear for her life as a silhouette of a man approached her once she was inside in what she believed was her apartment. But, it is my position, that even if the second scenario is accurate she is unquestionably guilty of murder.
Let’s assume the second story/conceded mistake is the truth and assume her entry into Mr. Jean’s apartment was an unforeseeable accident facilitated by an unlocked door. Once in the apartment, however, she intentionally chose to unholster her weapon and shoot an unarmed man who was merely walking toward the front door of his apartment. She intended to kill him or cause him injury that was clearly dangerous to human life. Period. She decided to shoot him. That is murder. Period. There is absolutely no way to define the conduct she engaged in that lead to the young man’s death as reckless. It was an intentional, volitional act conceded by the defense in her counsel’s opening statement establishing her guilt.
There are also those that have forwarded the argument that she acted in self defense. This is another glaring misunderstanding of Texas law. The Texas Penal Code provides the definition of self defense as follows: “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.” Again assuming the facts conceded by her attorney are true, she shot and killed an unarmed man who was merely walking toward her in a darkened hallway. This does not fall within the statutory definition of self defense.
There is, most assuredly, a statutory presumption that the “actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment.” But neither the statute or any of the jurisprudence expand this defense to include someone who mistakenly believed she was in her habitation.
As an officer, I was in multiple scenarios when people armed with a deadly weapon refused to disarm immediately when instructed and two occasions (one where a suspect attempted to stab me and another where one intentionally hit me with his car) had deadly weapons used in attempt to injure me. I never felt compelled to use deadly force to respond to these scenarios. But in one instance on a dark road in the middle of the night, I almost killed a man for a mistake and although it happened decades ago it still haunts me.
A small convenience store was robbed by three Hispanic males in a purple Geo Prizm. The victim provided a partial license plate. As I rushed to the scene down an unlit Avenue A, a purple Geo Prizm with the same partial plate occupied three times passed going in the opposite direction just a few blocks from the store. I wheeled around and threw on my overhead lights. I called in the stop and exited my vehicle and approached the car with my gun unholstered.
I instructed the passengers to put their hands up in English and Spanish. As I began to engage the driver, my peripheral vision caught a glint of steel and a moving hand in the back seat. I wheel around yelling for him to raise his hands and was, most certainly, moments from shooting him. As he raised his hands, he dropped the seat belt he was trying to surreptitiously secure. A moment later another officer radioed that he had the actual suspects stopped a few blocks north of the store.
This driver had expired tags and did not have a license but all he and his passengers got was an apology instead of tickets and I would have certainly been guilty of a crime had I shot him despite the statistical improbability of the similarities and his failure to obey my lawful command. I get mistakes happen. But the fact that it was a mistake does not mean that the person who made the mistake is not guilty of a crime.
Finally, just because I am convinced Ms. Guyger is guilty of murder, that does not mean I am convinced she will be appropriately convicted. I once represented a former police officer who, while an officer but off duty, discharged his weapon in his home and struck a neighbor who was asleep in the apartment that was attached to the officer’s residence. White officer. African American victim. The victim suffered tremendous injuries and personal losses.
The State called more than a dozen witnesses including experts, his academy firearm instructor, police officers from both the investigating department and the former officer’s department, the trauma surgeon and a ballistic expert. They threw everything but the kitchen sink at my client in an attempt to secure a conviction. But their evidence provided some support for my argument that my officer discharged his weapon while he was asleep. But, again, even assuming everything I asserted was true, I still felt my client was guilty of some crime. After weeks in trial, the jury found him not guilty in minutes.
I did my job as well as I always do it. And I disagree with the position held by journalists at Newsone.com who stated “many questions have surrounded the trial, including the apparent concern that Guyger won’t get a fair trial, something that should ideally take a back seat to getting justice for Jean, an innocent and upstanding member of society.” A fair trial for all defendants (although not a reality) should always be the primary goal of our criminal justice system. But that does not mean I have to happy when I win and I feel Justice was denied. And just because Amber Guyger should be found guilty of murder for shooting Botham Jean does not mean she will be. And if people are upset in the aftermath of what may be a not guilty, they have every right to be. I will be.