Lies, Damned Lies, And Facebook (Part 3 of ∞)

EDIT: This one got complicated. See below.

I tried to scrub my Facebook feed of all of these kinds of articles, but occasionally something gets through. This week what’s gotten through, en masse, is the Gilbert/Frago case, in which a guy killed an escort and was acquitted of murder.

Let’s look at the article titles: In Texas, It’s Okay To Murder An Escort If She Won’t Sleep With You, says Alternet, Texas Jury Says Sometimes Killing An Escort Is Okay, says Feministe, adding that ” “but I thought she was going to have sex with me” is now a viable defense for manslaughter”. abovethelaw.com says Killing A Hooker Is A-OK, Guess What State, because stereotypes are hilarious and you should always perpetuate them. And Mr. Conservative writes “Apparently, in Texas it’s okay to kill an escort if she won’t sleep with you.”

The story is that a guy hired an escort, which is often a code word for a prostitute, for $150. In this case, it was not a code word for a prostitute and the escort provided him with company and nothing more. The guy got angry, and as she drove away, he shot several bullets at her car. One of them ricocheted off the car, hitting and injuring her, and she later died from the injury.

During the trial, the defense argued that in Texas, it is legal to use deadly force to defend your property. This man believed the escort had stolen his $150 (by charging him for sex and then not providing it), so he shot at her car in order to stop her from getting away with committing a crime, which is sort of like self-defense if you really really squint. The jury declared the man not guilty of murder.

How does the Internet interpret the decision? From Alas, A Blog:

I strongly suspect that for many juries, the life of a sex worker isn’t considered as valuable as the life of a store manager or even a drug dealer. Certainly not as valuable as something really precious, like $150.

From “Everyday Victim Blaming”

A woman meets a man, she declines sex and he shoots her, and a jury has decided that it’s OK because she was a sex worker. It is hard to know where to even start with how scary the decision of the jury is, there are so many ways it blames the victim and excuses a man for ever being responsible for his behaviour. The implications for all women should make anyone reading very afraid too. A man’s assumption about sex being an automatic right after a gift, or money, or marriage is now the situation in Texas. How many other women are in danger? Of course people will say it’s different because money was involved, I have already seen some of this victim blaming going on. There are a number of scenarios here; they all blame the victim though.

From Shakesville:

And because she was a sex worker, and because she was marginalized and he is privileged, a jury has ruled that it’s okay. No harm. No foul. It’s not like anyone important was killed today, it’s not like anyone important was hurt by her death, it’s not like anyone important will be terrorized in the wake of this blatant ruling that men can murder women and after the fact with no living witnesses to contradict them claim that they were sex workers who weren’t performing according to expectations and thus get off free and clear.

The most eloquent commentary, is, as usual, provided by Freethought Blogs:

It’s legal in Texas to kill a woman for refusing to have sex?

So if you’ve had any experience with this section of the blogosphere before, it probably won’t surprise you to learn that the case had nothing to do with sex, nothing to do with privilege, and everything to do with legal principles that the jury applied pretty much entirely correctly.

Bridgette Dunlap, who unlike these bloggers is an actual lawyer and has read facts about the case beyond the one article on Gawker that started this whole thing, writes:

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. The bullet hit the tire and a fragment, “literally the size of your fingernail,” according to Defense Attorney Bobby Barrera, hit Frago. Barrera does not believe the jury acquitted because of the defense of property law. He believes they acquitted because they believed Gilbert didn’t mean to shoot her…

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.

In other words, guy hit tire of car, bullet ricocheted off and hit a woman. Prosecutors mysteriously turn case into referendum on whether the guy meant to kill the woman. Man says he didn’t, he was just aiming at the tire (which he in fact hit). Jury believes him and acquits. Under this interpretation, the only “scandal” is why the prosecution charged murder instead of the more legally defensible manslaughter.

A commenter on this blog disputes Professor Dunlap’s analysis:

Scott’s wrong on this, I’m pretty sure. Under Texas felony murder rule, the only defense was defense of property. If the jury did not find defense of property, this would have been murder. As such, there’s no game in manslaughter at all; the prosecutors were right not to charge it . . .

It seems to me to be absolutely right to have charged murder; there is a manslaughter lesser if supported by the evidence. Here, given Texas law, it appears that the self-defense would be justified if it was for recovery of stolen property. (No other state permits deadly force for recapture of property.) See below as to why murder was the *only* rational charge . . .

“Malice” is a term used in most jurisdictions for murder, and includes “depraved-heart murder.” Texas repealed that in 1974 when they changed section 19.02 of their criminal law. The commenter quoted for the theory that murder requires direct desire to kill rather than implied malice is basically correct as far as it goes, but appears to me to be entirely wrong for another reason.

Texas felony murder rule is different. If you’re somewhere else there’s something called the merger doctrine that doesn’t always make your felonious attack murder. In Texas, if you, say, feloniously shoot at a car and inadvertently kill an occupant, that’s felony murder. (Felony murder is usually: You and I go to rob a store. I shoot the clerk fatally. Bad news for you: You’re on the hook for murder. Don’t rob stores with violent armed criminals.)

This was almost certainly found to be self-defense.

Salisbury v. State, 90 Tex.Crim. 438, 235 S.W. 901, 902 (1921), observed that one who shoots wantonly and recklessly into a car or building known to him to be occupied need not have the specific intent to kill any particular person in order to make him guilty of murder. Texas went through several gyrations since then.

In 1974 in Hilliard v. State, the court ruled that the intent to commit the underlying felony (here, injury to a child) was sufficient to make the child’s death felony murder.

Upholding that view is Rodriguez v. State (http://tinyurl.com/mc2foyk) (And that’s the link you want to follow for a great overview of Texas felony murder). It makes clear that there is no merger doctrine in Texas – if shooting at the car was felonious – and without justification it surely was – defendant is guilty of murder. That’s why they tried this particular defense and stressed it – “I shot at the occupied car itself” is a felony (Texas Penal Code section 22.05(b)), so this leads directly to felony murder. In short, our blog host is wrong. It is possible I am wrong; I do not have the full tools at my disposal to solve this puzzle 100%, but I’d bet heavily on me. The screaming bloggers are sort of right: The hooker-stole-my-money defense worked.

This was then followed by another learned legal scholar suddenly showing up on this blog (why am I the only person who has to deal with this?) and arguing the opposite:

JRM, I didn’t get the impression they were going for felony murder. Why would the defense attorney say he thought he they won on lack of intent if it was felony murder?

I could be missing something. I am not a criminal expert (but did run the piece past some criminal law profs). I’m most interested in the narrative because I think the inaccuracy/hyperbole will make some people more emboldened to harm women.

I assumed it was felony murder as well, but it appears not. It isn’t just the post-trial statements (which have been changing). Reporting from during the trial shows they were arguing no intent.

A commenter on another blog who claims to be a lawyer in Texas says that “stand your ground against nighttime intruder” law does not apply in this case anyway:

As I read the applicable law, the defense allows you to use lethal force against a night-time intruder who is committing a crime (and here’s the kicker) only if you yourself are not engaged in unlawful activity. That clause seems specifically designed to prevent johns from using this defense against prostitutes. If you ask me, the DA in this case screwed up big-time. Someone should be losing their job over this.

I had some stronger conclusions here before, but right now I’m just going to end with “law is complicated”.