Amber Guyger‘s killing of Botham Jean in his own apartment has recently taken center stage in the national discourse surrounding systemic racism and police use of force against people of color–particularly black men. As further details in the case have been released, however, further questions and suspicions have been raised.
Many of those questions have surrounded not simply the facts of the case as they’re currently known and have been reported, but the official story being told by Texas authorities–both in their statements and in the paperwork that’s been made public so far. To wit, the probable cause affidavit for Guyger’s slow-walked manslaughter charge.
Stephen Le Brocq operates his own law firm in the North Texas area, largely serving the City of Dallas and its suburbs. Le Brocq’s criminal defense lawyering, however, has taken him as far as Illinois and Michigan. During his career, he’s reviewed hundreds, if not thousands, of probable cause affidavits. And none of those affidavits have ever been written the way this one was.
“The most remarkable part of the affidavit is where it states what the officer purportedly believed.” Le Brocq said via email, “Specially, that there was a burglar in her apartment. This is a factual question and is something for a jury to decide. If the statements are true as written in the affidavit, I see no crime having been committed.”
And that’s extraordinary. Probable cause affidavits typically paint criminal defendants in the worst light. Per force, they’re kind of supposed to do exactly that. Le Brocq explained:
Probable cause affidavits are the instruments necessary to arrest someone for a crime. Typically, they are conclusory statements (many times unsupported) written against the accused, to secure a warrant for arrest. The affidavit in this case is written such that, one would question why a warrant was even issued. The author of the affidavit writes a story indicating it was a complete mistake and even concludes what the officer subjectively thought, albeit it is stated as “facts” of the case.
Fort Worth area criminal defense attorney Phillip Hall also took issue with the general contours of how the Guyger affidavit was drafted. In emailed comments to Law&Crime he said:
The Texas Ranger’s affidavit appeared to justify the defendant’s actions and empathize with her confusion. The affidavit states the defendant’s position as a police officer, references the confusion that could arise with the apartment’s floor-plan, and rationalizes why the defendant believed she was on the right floor when entering the apartment. These “facts” aligned closer with justification for the defendant than an unbiased recitation of the facts.
Hall continued, “As a criminal defense attorney, I like the affidavit because of its understanding nature of the defendant’s actions. However, my issues with this affidavit exist because these kindly written words do not occur on the “normal” defendant’s affidavit. It appears that this affidavit was carefully constructed to protect this police officer. Had this been one of my (or any other defense attorney’s) indigent, minority clients, I guarantee the wording of the affidavit would be different.”
There are other potentially problematic issues in the affidavit as well. Le Brocq noted the interesting and atypical choice of language used to describe Jean in the affidavit. “The individual the officer killed is referred to as ‘complainant’ when often times it is the ‘victim’ and reading it, I would think it was drafted by a defense attorney,” he said.
But there is also the choice of referring to Guyger’s alleged “verbal commands” given to a man in his own home. When those comments were initially reported by the Associated Press, many onlookers called foul. Law&Crime asked Le Brocq to clarify why exactly this language was a strange choice in the probable cause affidavit. He said:
“Verbal commands” are what police officers are trained to give before taking further action. It gives officers an opportunity to see if the suspect will listen, or if further action is necessary. I think it was included in the affidavit [because] people are giving the officer the benefit of the doubt. It lets people speculate, if an officer in uniform is telling you to do something, why would you not listen? The authority of the uniform which people think supersedes everything.
And why might that language be so important? Because of how police officers are judged in courts of law. Typically, a citizen is judged by the standard of a reasonable person. Police officers, however, are judged by the standard of a reasonable police officer–who are given much more leeway.
Amber Baylor, an associate professor and the criminal defense clinic director at Texas A&M University School of Law noted, in comments to the Washington Post, “The reasonable officer standard is broader. It may provide more space for a jury to believe an officer feared for his life and acted in self-defense.”
Le Brocq also slammed the affidavit’s general feel as all-but wholly exculpatory for Guyger. He said, “The affidavit isn’t written objectively, not at the slightest. As stated before, they are usually wholly against the accused. An objective view of the information related by the officer would be proper, in my opinion. This affidavit states facts based upon the word of the person it seeks to accuse of criminal wrongdoing.”
As to why that’s a problem? Le Brocq reiterated, “Nothing questions her version of events and there is no mention of an investigation as to if her story was corroborated or if the affiant spoke to other individuals before making his “factual determinations.” Rather, the affidavit makes specific details as to why the officer’s alleged mistake was reasonable…It’s completely biased.”
[image via Kaufman County Jail]