On September 6, 2018, at about 9:59 p.m., Botham Jean, 26, was home alone at the South Side Flats apartment complex in Dallas, Texas. Jean’s unit was directly above Amber Guyger’s unit in the same apartment building.
Guyger, an off duty police officer who was still in police uniform, arrived at the complex and parked her car on the fourth floor of the parking garage, Guyger walked into the building and walked down the 4th floor hallway to “what she thought was her apartment.”
Guyger inserted her “unique door key” that also had an electronic chip, into the keyhole. Despite the key being the wrong one for that door, the door to Jean’s apartment opened because it was “slightly ajar” and unlocked.
According to Guyger, she observed that the apartment interior was nearly completely dark upon entering. The door opening allegedly “alerted Jean to Guyger’s presence.”
Guyger drew her weapon fired her handgun two times striking Jean once in the torso. Guyger claims she believed she had encountered a burglar and gave verbal commands that were ignored. Guyger is now on trial for murder.
The Law&Crime Network’s team of accomplished hosts/attorneys have been researching, studying and debating this case. Here is their unfiltered discussion which will be updated daily:
Brian Buckmire, host & attorney:
Alright Bianchi I think I have my defense (don’t think it’s a winner but it’s the best one I can come up with). I’d go with a lack of intent/knowledge defense as I think mistake of fact and self defense are not likely to work.
“On September 6, 2018, Amber Guyger was a four year veteran of the Dallas PD. Something the Dallas District Attorney’s office and the media want you to focus on. But on September 6, 2018 Amber Guyger was also a 31 year old single woman who lived alone who entered a poorly lit room where she came across a young man that she believed meant her harm. In shock, she reacted. There was NO INTENT. She didn’t intend to kill Jean Botham. She did not know she would kill him. Because when faced with fight or flight her instincts checked in and her intent checked out.
Not being in a mental place to give aid, she did what she believed was best for the man she did not intend to harm. Get help. Call 911. Direct the EMS and first responders to her location and let them do their job. There is a victim here, Botham Jean. A light that walked this world will never brighten the lives of his friends and family again. But let us not let her badge and her errors of that night make Amber Guyger a victim of a rush to judgement. Don’t make Amber Guyger the target of your frustration for a system who may let other cops off with murder where a woman sits here absent the intent and knowledge to kill.”
Bob Bianchi, host & attorney:
Okay, I like those arguments too! It may be legal hair splitting, but I think we are both saying the same thing- just trying to find the law that allows the argument to be made.
If I were defending, whether it be an “affirmative defense” or outright attack on the mental state(s), as defense lawyers (or prosecutors preparing to rebut defense arguments), we are arguing it’s a tragic accident, but not a crime.
I ponder-Would this DA charge a person with murder with a defendant who was intentionally, or with knowledge, drove a car, ran a red, and killed a person. My bet is it would be charged as a manslaughter case (reckless), and not murder. In this example, however, the person purposely, and/or with knowledge, did a dangerous thing that resulted in death. That differs from AG who was unable to form that intent- the argument would go.
Yet, those auto cases are charged as manslaughters and hers is charged as a murder!
My gut is just telling me that if the facts were as she believed them to be (that it was her apt), that a jury would likely acquit in that instance. But, she made a mistake and it wasn’t her apartment. Whether AG’s defense is an direct attack on the mental state, or affirmative defense, either way it’s a defense.
!!!But caution!!! I note this is Texas. I mean no slight to our Texan friends, but I would have loved to prosecute there! Very friendly legal system for prosecutors compared to other states.
Linda Kenney Baden, attorney & host:
Okay as the resident defense attorney who has tried a number of high profile cases and who was a prosecutor here are my thoughts: Texas Penal Code § 19.02 defines murder that that state that #AmberGuyger is being tried for the death of Botham Jean. So it is this definition the jury will hear. It is not the type of a definition that the public usually believes is murder such a premeditated lying in wait.
I am very familiar with these new definitions of murder because New Jersey where I am from revamped its criminal code in 1978 to include them! For instance in NJ you can murder someone or commit an act that intentionally or knowingly causes a death if you do an act purposely ( e.g. pick up a gun and shoot it) knowing that it is likely to cause death or serious bodily injury resulting in death (if you shoot at a person you know especially if you are a cop that is it likely to cause death.)
So back to Texas- An individual who commits murder if
b) A person commits an offense if (s)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; ……
Guyger’s actions undoubtedly falls under this definition .
Then the question becomes her affirmative defenses that she must prove. Can she show prove she was justified in killing Bothan Jean under some mistake of fact that made it justified. The defense is trying to use the standard defenses that police use if in the street and are in fear of their lives. All their experts are the standards ones used in “classic” police shooting where an officer reasonably believed, even if wrong their life in danger from fear of a bad person who they believed was about to kill them.
It will not work in this case IMO just like the TX case we had on our network where officer Roy Oliver was convicted of killing- murder- 15-year-old Jordan Edwards.
She cannot MAKE the reckless decisions that cause her to try to use justification as a defense. She is a person here for the purpose of use of force, but must have a higher awareness because she has police training.
At the very least this case is either 19.04. MANSLAUGHTER. (a) A person commits an offense if he recklessly causes the death of an individual.
Sec. 19.05. CRIMINALLY NEGLIGENT HOMICIDE. (a) A person commits an offense if he causes the death of an individual by criminal negligence.
Of course, as any juror I am forming my initial thoughts as I go. They may change.
She is NOT a police officer for the defense aspect of this shooting. She is a private citizen who should have had no special treatment. But she is a police officer for giving her a duty of a heightened awareness of her surrounding and use of a weapon. If I were the prosecution I would photo every single door number sign on the two hallways she walked down ignoring all plus the red mat- perhaps it appears bc she was to busy texting about her sex life.
There is also the social question – did the police system who let her stay to become a 4 year officer fail her and Bothum Jean? After her shooting number one, where she was overtaken and shot someone in the abdomen, was she too skittish after to continue as a Police officer? Was she given the right` psychological assessments? Was she protected in some way there because she was having a relationship with another police officer? The civil suit will get into all of this.
9/24/2019 4:40 p.m.
Bob Bianchi, host and former prosecutor:
I will start with a basic thing that makes a world of difference to any defendant, and In the Amber Guyger case for sure. That is, the power of prosecutors to charge, or not charge. And, the seriousness of the charges filed.
In this case, I feel many prosecutors would see this as an accident and not charge. But reasonable minds can differ, I get it. However, Amber Guyger originally charged with manslaughter (a “reckless act).
There was a public outcry despite the public having little investigative data, and now this case is charged as a murder.
It goes to a long often debated question as to whether it is better to have appointed or elected prosecutors. In Texas they elect. Hence, public pressure could be a career ended. I was appointed to a term. The “court of public opinion” is easier to not get caught up into that way.
In addition to the increased charges in this case is my concern that this DA violated a gag order and did a PSA for the victims. Political pandering in my mind. We see this often, but I guess Mike Nifong (the Duke lacrosse case) illustrates this best. With such power that prosecutors have, I am more and more concerned over the years by abuses I see. Cases should be decided by facts and law only- not political survival.
No matter how you add this case up, it was a tragic accident. It may be criminal, but murder! Come on! I suspect in some places she would still be on the job with facts like this. Not saying that is right, I’m just sayin’. So, what y’all think about the question. Is it better to have appointed or elected prosecutors.
Julie Rendelman, Law&Crime Network Analyst, former prosecutor:
Bob. Beautifully articulated. Right on point.
Bob Bianchi, host, and former prosecutor:
The culpable mental state is intentional or knowingly. If I were defending her I would argue that a mistake of fact negates those mental states, because to do a thing intentionally, or knowingly, requires that you knew the accurate facts and intended a result, or were reasonably certain of the outcome of your actions.
If there weren’t an affirmative defense of mistake, it would be a no brainer. But, there is that defense. As there is self defense and the castle doctrine. I would argue that if this had occurred in her apt as she thought, and the jury said it was justifiable, then the mistake of fact defense should be charged to the jury.
I am not saying it would fly, but as a defense lawyer you do what you can. And as a prosecutor, you should at least be preparing for the argument.
Michel Bryant, host & attorney:
Absolutely right Bob!
We talked about that yesterday and this would never be a “murder” case absent the public demonstrations, protests, call for AG’s head. Purely political charging.
BTW – The DA originally charging only manslaughter has been replaced. The lunkhead who violated the gag order yesterday beat the former DA by 20%!
He took over in January. Good luck Dallas!
Bob Bianchi, host & attorney:
Sawchak v. Texas. There are differences with Amber Guyger case. But, of good law, this statement in case good for prosecutors as to mistake of fact defense.
“Appellant claims that the evidence in his case raises the defense of mistake of fact. We do not agree. Appellant argues that through mistake he formed a reasonable belief that at the time of the assault, Weber was going to assault him and carry out the numerous threats to his life that she had made to him. (1) Even if we assumed this evidence were true, it does not negate the culpable mental state required for assault. “A mistake about the existence of a fact which would establish an affirmative defense to an offense, rather than negating an element of the offense, does not raise the mistake of fact defense.” Lugo v. State, 923 S.W.2d 598, 601 (Tex. App.–Houston [1st Dist.] 1995, writ ref’d). Appellant’s first issue is overruled.”
9/24/2019 4:15 p.m.
— Cathy Russon (@cathyrusson) September 24, 2019
From Michel Bryant, host & attorney:
Here’s a question I have: If Amber Guyger told the officer who escorted her to the squad car, that AG had already contacted her attorney, did that trigger AG’s right to remain silent? If so, turning off the squad cam audio was appropriate, and leaving it on would be a violation.
From Brian Buckmire, host & public defense attorney:
The right to remain silent is the right not to be questioned. If you invoke your right then decide to start speaking in an area that you know you’re being recorded (ie no expectation of privacy) it is not for the police or others to turn away or stop listening.
From Michel Bryant, host & attorney:
Amber Guyger is interacting with cops who come to her in the car. Those actions may elicit statements as cops would expect. No waiver. If AG is just mumbling to herself while alone in the car…that’s probably okay.
But police policy is to turn off recording for “police involved shooting”. How does that figure in?
9/24/2019, 5:08 p.m.
From Brian Buckmire, host & public defense attorney:
I’ll spark another topic.
I think the defense played their hand and #AmberGuyger is testifying. I’m not sure if you can get the details, at least as presented, that they put into the opening without her testifying.
Does she testify? Do you let the 911 call be the only thing testimony they hear from her?
I’m always wary of my client testifying but I think it’s required here. And as an officer she knows how to testify. There needs to be more than her standing in a room with a gun trained on a man standing in his own home. She needs to testify to the fear she felt at the moment and explain why it was reasonable. Otherwise a young group that is diverse in gender and race is likely to convict.
From Jesse Weber, host & attorney:
She’s going to be asked about why she said “I’m tired” in the 911 call and then if she was so tired why did she want to fool around with Martin Rivera that night? Too tired to drive home? No. Too tired to park? No. Too tired to ignore the floor, the rooms, the mat, the plant. Hmmmm……no you were distracted and flirting. These mistakes were not honest but your fault. That’s how I imagine that will go for her.
From Bob Bianchi, host & attorney:
So nuanced a question! You never want a client on the stand unless at end of state’s case the facts and law are both bad for you. To me a client testifying should only be a Hail Mary tactic.
As my old mentor always said (and I have found tone very true) “Juries love to convict from the testimony of a defendant testifying before them!”
As we are debating, the law here is confusing/complex. That could help the defendant. If she testifies and gets a prosecutor crossing them like the prosecutor in the Mullis trial, the defendant could get torched on the witness stand.
My game plan as a defense attorney at this stage is to get just 1 juror to hang the case. I don’t want a testifying defendant to mess that up.
But again, we have to see how case goes in. And, as a real world matter, defense attorneys also measure the skill set of the prosecutor when evaluating.
I would love to ask former police officer Jason Van Dyke (LaQuan McDonald trial) what his opinion is. He is the modern day example of a cop testifying himself right into a conviction.
[Image via Dallas Morning News screen grab]