The Botham Jean killing: Should the cop be charged with manslaughter or murder?

I’m confounded by the facts of the case and am throwing this out to legal eagles for guidance. If you missed Ed’s post earlier, here’s the key bit from the police affidavit stating what’s known right now.

Those facts are disputed. As Ed noted, one person heard a woman yelling “Let me in” before the shots. If the door was unlocked and ajar and Guyger strolled in not realizing she wasn’t in her own apartment, why would she have said that? If she was at the door of what she thought was her own place and had reason to believe there was a strange man inside, why would she demand that he open the door instead of calling for back-up? He could have been armed.

But assume it all happened the way the cops say. David French calls it the worst police shooting yet, not because Guyger was depraved but because she’s enjoying a benefit of the doubt extended to police officers and only to police officers:

First, police sources are reportedly indicating that Guyger may actually try to raise the fact that Jean didn’t obey her commands as a defense. It’s not a defense. The moment she opened the door to an apartment that wasn’t her own, she wasn’t operating as a police officer clothed with the authority of the law. She was instead a criminal. She was breaking into another person’s home. She was an armed home invader, and the person clothed with the authority of law to defend himself was Botham Shem Jean.

Which brings us to the second troubling element of the story. So far, Guyger is only charged with manslaughter. But all the available evidence indicates that she intentionally shot Jean. This wasn’t a warning shot gone awry. The pistol didn’t discharge during a struggle. She committed a crime by forcing open Jean’s door, deliberately took aim, and killed him.

Texas law defines murder quite simply as “intentionally or knowingly caus[ing] the death of an individual.” Manslaughter, by contrast, occurs when a person “recklessly” causes death. Guyger’s warning and her deliberate aim scream intent. She may have “recklessly” gone to the wrong apartment, but she very intentionally killed Jean. There is a chance that the grand jury will increase the charge to murder, so the early manslaughter charge is tentative. But I ask you: If Jean had mistakenly gone to Guyger’s apartment and then gunned her down in cold blood after demanding that she follow his commands, would he face a manslaughter charge?

All fair points. There *was* one party to this incident who had the legal right to shoot the other, but it was the dead man, not the cop. She entered his home unlawfully. I’m stuck on French’s point that this should be a murder charge, though. In one sense, it’s perfectly straightforward. Just like he says: She shot Jean intentionally. She had no justification or excuse to do so.

So what’s left to talk about?

What’s sticky is the fact that the “depraved heart” we associate with murder is obviously missing here *if* the affidavit is correct. What we have instead is a case of mistaken self-defense or “imperfect self-defense,” as some jurisdictions describe it. If Guyger had in fact found herself in the situation which she allegedly thought she was in — a strange man in her home, refusing to put his hands up and get on his knees — she’d walk. The case for self-defense would be so strong that she almost certainly wouldn’t be charged at all. The current manslaughter charge feels like an attempt to split the baby, acknowledging that Guyger is culpable but that the key decision that led to catastrophe was a reckless one, not an intentional one. She walked through the wrong door. (The state could have charged her with criminally negligent homicide, in fact, a lesser offense than manslaughter.) If you’re a prosecutor, what do you do with a set of facts in which a man is dead and the shooter may have had a good-faith yet mistaken belief that she was simply protecting herself from a burglar?

Lawyers on Twitter are pointing to “mistake of fact” as a possible answer:

Mistakes of fact arise when a criminal defendant misunderstood some fact that negates an element of the crime. For instance, if an individual is charged with larceny but believed that the property he took was rightfully his, this misunderstanding negates any intent to deprive another of the property. One important qualification, however, is that this mistake of fact must be honest and reasonable. Thus, a defendant cannot later claim that he or she was mistaken when he or she actually knew the situation. Likewise, the mistake must be one that would appear reasonable to a judge or jury. If the same individual was repeatedly told that the property was not his, and he could not take it, it would no longer be reasonable for him to mistakenly have believed that he could rightfully take the property.

Mistakes of fact may apply to a variety of crimes. Some crimes may set forth that mistake of fact is a defense. Otherwise, if the criminal defendant can prove that the mistake reasonably negated an element of the crime, the defense will usually be held to apply and absolve the defendant of liability.

Did Guyger make an “honest and reasonable” mistake in walking into the wrong apartment and taking Jean for a burglar? Conceivably, yeah. If the layouts were identical, if the door really was ajar and seemed to open when she inserted her own electronic key, you can understand why she might have sincerely assumed she was in her own apartment. (This is why her defenders are stressing that Jean didn’t obey her commands, I guess. It’s absurd to fault a man for not complying with orders from an armed intruder, but if the idea is to establish that Guyger handled the situation reasonably, noting that she followed standard police procedure with what she thought was a burglar might aid that argument.) It’s inconceivable, though, that that would be used as an absolute defense to let her walk free. However innocent her mistake, it can’t be that someone — a cop or not — can stroll through your front door, blow you away, and be back on the street the next day because “oopsie, wrong apartment.” There’s negligence at a minimum and conceivably much worse. Is it murder, though? Jurisdictions that recognize “imperfect self-defense” will reduce a murder charge to manslaughter if it’s proven, exactly the charge Guyger is facing. For the moment.