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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”.

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61 Responses to Lies, Damned Lies, And Facebook (Part 3 of ∞)

  1. Shel says:

    As soon as I saw the headline of that I was like “yep, someone’s exaggerating the story to make it seem way more horrible than it is.”

    And now I’m counterfactually pissed off at liberals in the He Got Prosecuted For Manslaughter Like He Should Have Universe for not understanding how the justice system works. (See also: Steubenville.)

    That said, justifying the use of deadly force to defend your property is a terrible law.

    • Earnest Peer says:

      I have no clue about American justice and little of the Steubenville rape case, but this sounds interesting, could you explain what you mean?

      • Shel says:

        The Steubenville rapists received only a few years in prison because they were minors. Cue everyone getting outraged about how WE DON’T PUNISH RAPE HARSHLY ENOUGH THEY SHOULD BE IN PRISON FOR THE REST OF THEIR LIVES et cetera.

        • Alex says:

          I got the impression that people were pissed off because: a) It took an enormous amount of effort before the rapist were actually prosecuted.
          b) People in the town insulted and threatened the girl who was raped.

        • Earnest Peer says:

          Yeah, Alex’s points are the ones I always (that is, about thrice) saw on feminist blogs: See how people treat rape victims if they like the rapists!

          “Like” here means defend because of possibly destroyed future.

        • Shel says:

          Yes, but I’m okay with people being pissed off about those things. 😛

    • Berry says:

      “That said, justifying the use of deadly force to defend your property is a terrible law.”

      Also note, it only applies at night, which makes it ever so slightly more reasonable.

      • Scott Alexander says:

        Maybe the moral law isn’t gravitation at all, but is actually electromagnetic and depends on the level of ambient light?

      • Randy M says:

        “Also note, it only applies at night, which makes it ever so slightly more reasonable.”

        That doesn’t make any sense to me. At night you are more likely to miss, etc.

        • Eric Rall says:

          During the day, there are more likely to be bystanders available to act as witnesses or to actively help confront the perpetrator, it’s easier to ID the perpetrator for later apprehension by the police, and it’s safer (because of increased visibility) to confront the perpetrator without lethal force.

  2. Earnest Peer says:

    How common is it that defenses use absolutely outrageous arguments to protect their client? Because the attempt to defend with “she stole sex so he was allowed to shoot her” was there, we just don’t know anything about how effective it was. Reality Check thought that defense was newsworthy, but I’ve no idea whether they’re right.

    • Berry says:

      Like Bridgette notes, defenses should and do use whatever arguments they can get their hands on, however outlandish, in order to defend their clients. That’s their job. For this particular case, the reasoning behind the “deadly force to return property” line of argument doesn’t actually look all that terrible.

      • Mary says:

        Should they? Would there be more injustice in the country if they couldn’t?

        • Earnest Peer says:

          Banning lawyers from using certain defenses probably has its hazards too. Still, I think something like this should at least look bad on your resume.

  3. Berry says:

    Case is fishy as hell for other reasons as well. As I tweeted to Bridgette, the Bexar county records indicate that Ezekiel Lee Gilbert was charged with aggravated assault with a deadly weapon in 2007, where he pled no contest and received deferred adjudication, which usually carries a probation period, and in fact the records list 2008-2011 as some sort of punishment period, but don’t specify if he received probation or not. If he was under any kind of heightened scrutiny, he also shouldn’t have been able to own the firearm in the first place, so whence the AK-47? And lastly, why the fuck has no one mentioned that he basically has a prior? (it’s not technically a prior in Texas if it was deferred adjudication, but it’s the same for our purposes.)

    I’ve spent all morning and afternoon trying to dig into this, but it’s hard to get traction. Best source is SA-express, but they have a paywall on the original article, so I don’t know if they have any info I haven’t already seen.

    In any case, there are two more things I want to mention:

    (a) If the prosecution knew all the facts as presented at trial (reports indicate they did) then why try Gilbert for murder? You know a jury won’t convict if he was firing recklessly at back of car, so why not try for manslaughter?

    (b) We can sort-of figure out which argument of the two swayed the jury, by looking at the prosecution’s case and seeing how well they handled the rebuttals to each of the defenses. Unfortunately, I have not a clue how to get more information on what actually went down in the court. Anyone have any ideas?

    • Andrew says:

      If the prosecution knew all the facts as presented at trial (reports indicate they did) then why try Gilbert for murder? You know a jury won’t convict if he was firing recklessly at back of car, so why not try for manslaughter?

      Hindsight is 20/20. My current feeling is that crimes that are objectively manslaughter get prosecuted as murder all the time, because the legal system, oddities like this notwithstanding, is systematically stacked against defendants unless you’re really rich and/or powerful.

      The reason the judge didn’t instruct the jury on manslaughter is probably because she didn’t want to give them the “out” of splitting the difference, so to speak, and was confident that given the choice of murder or nothing, they’d choose murder. And my feeling is that was a high-percentage bet to take, because the guy clearly deserves something.

      • Berry says:

        “Hindsight is 20/20.”

        Yes, I’m probably suffering from hindsight bias here. But still, without further information on what the prosecution’s case was and how they went about trying to prove murder, we are at a serious loss in analyzing this case.

  4. Damien says:

    “But if your narrative is that anyone who kills women for refusing sex is secretly excused by society and gets off really easy, it is worth taking a second to notice that this is exactly the opposite of the problem that actually happened.”

    No, it’s exactly what happened: he did get off really easy. He wasn’t excused by the prosecutor, but by the jury. Or by the jury and law and judge (who did not instruct the jury in manslaughter possibility.)

    How do we know he was aiming at a tire? Because he says so now, during a murder trial?

    • Randy M says:

      How do we know he was aiming at a tire? Because he says so now, during a murder trial?

      Well, and it sounds like that’s what he actually did hit. Unless that bit was just according to defense attourny, its not clear.

      Still very reckless and criminal, even if he’s a good shot.

      • Berry says:

        “How do we know he was aiming at a tire? Because he says so now, during a murder trial?”

        You suggest the jury start disbelieving what witnesses state on the stand? How do you prove beyond a reasonable doubt that he was aiming to kill, when you have no witnesses or evidence for that conclusion?

        • Damien says:

          I don’t know, how do prosecutors usually handle this problem? AFAIK we don’t usually let murderers off just for saying “I didn’t mean to kill them, honest! I was just trying to scare them!”

          Doesn’t gun safety teach to not even point a gun at someone unless you mean to shoot them? If you’re shooting in the direction of someone I think there’d be a presumption of killing intent.

        • Berry says:

          “If you’re shooting in the direction of someone I think there’d be a presumption of killing intent.”

          The jury obviously thought the defense did a good job of demonstrating otherwise. Without access to the various arguments from either side, I just don’t know what more to say.

        • Randy M says:

          I only read what Scott posted, which I don’t think states that the witnesses said he was aiming at them, thought I could have missed it, and in any case surely it would look like he was aiming at them even if he was aiming at the tires, but in any case I said it was reckless to do even that.

          But anyhow, Andrew said it better.

      • Damien says:

        AIUI most people have poor aim, especially under stress, so hitting a tire would be perfectly compatible with shooting at someone in a car.

        • Andrew says:

          Hitting the tire is more compatible with shooting at the tire than shooting at the occupants.

          -Bayes

        • Watercressed says:

          Sure, but you need more than “perfectly compatible with” to show mens rea in a criminal case.

  5. JRM says:

    I am a criminal prosecutor in California. I AM NOT AN EXPERT ON TEXAS LAW.

    Short version: 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.

    In pieces, leading up to the conclusion:

    I looked up some things on Google Scholar, and I have some general observations:

    1. 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.

    2. Everyone gets everything wrong in legal reporting on a consistent basis. McClatchy published an article on Duty to Retreat that showed good liberal states like California, Oregon, and Washington have a duty to retreat, while bad, conservative states have no duty retreat. In fact, California, Oregon, and Washington have no duty to retreat. I mention this because it’s reasonable to assume some significant number of things – even confidently asserted things with graphs and legal commenters and such – you read are wrong. Maybe this is, too.

    3. “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.

    4. 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.

    Is this clear at all?

    • Berry says:

      “Is this clear at all?”

      Crystal. Thanks for this great analysis. Bridgette said she is working on getting a transcript, so we might be able to verify some of this stuff.

    • Fnord says:

      So, it appears we two separate issues that the defense addresses:
      1) There was no intent to kill or cause serious bodily harm, so it’s not murder under 19.02.b.1 or b.2. It could still be murder under 19.02.b.3, the felony murder rule.
      2) Normally, shooting at the car would be a felony under 22.05.b.2, but because of the intent to recover stolen property, that shooting was justified and not a felony. So, there’s no underlying felony for the felony murder rule to apply.

      Hence, the lack of intent to kill was important to because the defense of property would not be a defense to murder, but rather to the underlying felony required for felony murder. As Rodriguez itself shows, it’s appropriate in Texas for charges to be simultaneously brought under all 3 modes of 19.02.b along with manslaughter, since that’s exactly what happened in that case. Why the prosecutor didn’t bring manslaughter charges in this case, I don’t know.

    • Douglas Knight says:

      You appeal to your authority as a lawyer against Scott, not a lawyer. But you fail to mention that Scott quoted a lawyer. It would be one thing if pulled rank as a criminal lawyer, but you completely ignore the lawyer and attribute all her words to Scott. Why should I believe anything you say? eg, that you’re a lawyer?

      • JRM says:

        I concede that I find this particular response more fascinating than I might. Did you read the Rodriguez case I linked to? Given my post, what chance do you ascribe to my being a lawyer?

        • Douglas Knight says:

          I’m sorry that I assumed malice instead of incompetence. Thank you for having the intellectual honesty to admit that BD is right, when she came here to directly address you, even if you were too lazy to read her post that you claimed to be responding to.

      • Scott Alexander says:

        I didn’t particularly interpret this as an appeal to authority. Ze posted some extremely complete arguments proving zir point. Given the amount ze obviously knows about the law, I’m pretty willing to believe ze’s a lawyer, and I don’t take it as an insult or attempt to pull rank at all.

        I was briefly confused by the idea that two very smart lawyers (JRM and Prof. Dunlap) could disagree on such a basic point of law, but then I realized how often the professions I know more about (medicine, science, philosophy) disagree on basic points of their fields and decided it would be very strange if lawyers were the only group who had their act together.

        • JRM says:

          Update: Bexar County’s web page talks about a DUI-death that they successfully got felony murder on. This makes me more confident that the instant case is felony murder factually (if no affirmative defense.)

          My guess is Prof. Dunlap will not disagree on the felony murder issue once she reviews it – Texas law is very weird on this. Whether it was *charged* is a separate issue entirely – if it wasn’t charged then the defense cited by Prof. Dunlap is possible; if it wasn’t, it isn’t.

          I’ll stop talking on this now. I’ve said enough! Thanks to Scott for his kind words and thoughtful response.

    • Scott Alexander says:

      “Is this clear at all?”

      Somewhat. I’m going to assume you’re right unless Prof. Dunlap later says she’s aware of your objections and has some counter to them. Thank you for the clarification.

      • JRM says:

        Thanks! See below, though. BD raises some evidence that felony murder wasn’t charged, which changes the equation. It’s very frustrating not to have original documentation.

  6. BD says:

    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.

    • JRM says:

      I don’t know.

      In California, I can just file murder charges and the jury need not agree on the legal theory in most cases. It is not clear to me that the same applies in Texas. It is clear that at one time it didn’t.

      Attorney quotes post-trial are not dispositive. I will say that if I am right on the law – and I am reasonably certain I am, though not totally certain – felony murder seems the easiest road on this fact pattern in Texas. (California has merger rules; it’d be implied malice murder here.)

      • BD says:

        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.

        • JRM says:

          It’s certainly possible they didn’t charge it as felony murder. But they might also argue both – lack of intent-murder and a defense to felony murder – if it were charged. This shows the hazards of speculation.

          I went looking for more, but Bexar County doesn’t have copies of the criminal complaints/informations/indictments/whatever on their site. The DA’s site also has nothing.

          Which is too bad. If their theories did not include felony murder, then Texas’ particularly tough intent laws make it much tougher and the original commenter is right.

        • Fnord says:

          Texas Law only allows deadly force to be used in defense of property in specific circumstances.

          I would assume, then, that it’s at least conceivable that there would be a controversy over whether the circumstances justified deadly force or merely ordinary force, even if felony murder was charged. And in that case, it would seem possible that the defense could claim (perhaps in the alternative with other arguments) that even if deadly force wasn’t justified, the defendant’s actions don’t rise to the level of deadly force. And for that, it seems the defendant’s intent would matter.

  7. Fnord says:

    First of all, if the prosecutors had correctly charged the guy with manslaughter, and he’d been convicted, and he’d gotten two years in prison and a $10,000 fine – is there any way this same gaggle of blogs wouldn’t have reacted exactly the same way?

    Probably not if he’d gotten 20 years, though. Which is also an allowable punishment for a felony of the 2nd degree under Texas law. I’m not sure that giving someone the minimum sentence allowed by law shouldn’t be taken as letting them off easily.

  8. Deiseach says:

    Okay, I was going “Hm, right, this certainly puts a different light on the matter” all the way up to the part where he was shooting at the car with an AK-47.

    What the hell, Texas and the U.S.A.? That is not a handgun for personal defence, or even a shotgun or rifle for hunting, that is the kind of weapon developed for use in a military context. If you’re spraying bullets around the vicinity of the neighbourhood with one of those, then you bloody well should be charged with attempted murder. What if the ricochet had hit a neighbour or somebody passing by on the street?

    • Benquo says:

      In the US, an AK-47 is usually not the fully automatic version.

    • Benquo says:

      Also that sort of dumbass recklessness is exactly the reason we have a separate type of crime called manslaughter.

      • GTRdone says:

        Handguns are almost always much less accurate than rifles; if you ‘need’ to shoot out the tire of a moving vehicle, it would likely be more responsible to use a rifle (even a AK-47) than almost anyone using almost any handgun.
        Especially if the AK was fired semi-auto, which all AK’s can do.
        How many shots were fired?

  9. cool rich guy says:

    Usually I agree with you very much when you attack the epistemic habits of feminists, but I’m not so sure about this one. Juries can be biased. Some people are misogynists. Some people are racist. This is probably even more true in some places in Texas, stereotypes don’t come from nowhere. People who work jobs like this have very low status in society. (Although to be fair, so do people who hire prostitutes.) The jury could have been justified in their verdict, but it’s not hard to imagine that they might not have been.

    I guess the main point still stands, because the feminists don’t bother considering the nuances and just go for the most outrage-provoking conclusion they can, while calling anyone doing the reverse “victim blaming”. Maybe I’m just trying to say that you would be more persuasive if you stuck to pointing out more cut-and-dry examples of irrationality.

    • Jake says:

      “People who work jobs like this have very low status in society. (Although to be fair, so do people who hire prostitutes.)”

      ISTR that the average john is middle-to-upper-middle class, although admittedly this impression may be due to reading the blogs of prostitutes high-status enough to have blogs. A $150 hooker isn’t Eliot Spitzer-level, but she’s not a streetwalker either.

  10. R. Jones says:

    Between the feminists and Texas’ stupid prole laws, there’s more than enough brazen stupidity to go around here.

  11. Charlie says:

    “It must be nice to know that, no matter what happens, it will be proof that someone is persecuting you.”

    Well, there are perhaps two outcomes that would’t be proof. Either the woman could have not died, or the person who made her die could have gotten a punishment that our society usually deems normal in this sort of situation.

    But outside of that, yeah, sure.

  12. Douglas Knight says:

    Re: Update. No, it’s not complicated. JRM’s comments are irrelevant. I am disgusted that you describe them as disputing BD’s argument. JRM didn’t even read BD, as you can see when he concedes that she has a point when she repeats herself here. If you think JRM’s comments are relevant, maybe you should reread BD’s piece.

    It doesn’t matter what the law says. BD is talking about the jury. BD says that two defenses were argued to the jury, both intent and defense of property. JRM explicitly says nothing and implicitly says that they can’t argue intent, so they didn’t. Assuming JRM is right on the law, what do you think is more likely, that the reporting of arguments is wrong, or that reporting is correct, that an illegal defense was allowed? BD says that since the intent argument was put to the jury, it’s pretty plausible that it’s how they made their decision.

    But what is the point of BD’s argument? Do we care about this one murder? Or do we care about the generalities of what “Texas allows”? We don’t know what this Texas jury allowed, because they had several options (plus, as always, nullification, popular among Texas murder juries). We do know that the Texas judge allowed the defense to argue that this counted as defense of property, though she may have undercut this, if we knew more detail. Of course, the “Texas allows” headline is responding to the jury decision, not the argument. So BD is right to respond that we don’t know about the jury decision. But is this the right question?

    • Scott Alexander says:

      The way I understand things now is that JRM says the guy was guilty of felony murder, BD says that this is true but felony murder was never charged and so the jury couldn’t convict on it, and JRM says he can’t access the records that would let him confirm this. Is this your understanding too?

      • Douglas Knight says:

        I guess, but I don’t care. Why do you care?

        My whole comment was about why I don’t care. I recommend it. Let me recall your summary of BD: “Prosecutors mysteriously turn case into referendum on whether the guy meant to kill the woman.”

        • Douglas Knight says:

          In particular, I don’t care whether felony murder was charged. They argued intent. We know that, regardless of the law. That’s what the jury heard and that’s what the jury might have decided on.

        • Scott Alexander says:

          Wait. I’m confused. What do you care about here, and why?

        • Douglas Knight says:

          I asked first.

          I tried to answer what I care about in my comment, the one that begins this thread.

    • BD says:

      Hi Douglas,
      It certainly isn’t the most important question, but I was concerned with the media narrative. The only definitive statement I’m willing to make with the information I have so far is that there has been widespread misrepresentation of the verdict because we don’t know on what basis the jury acquitted. Whether the judge should have allowed the defense is certainly the important legal question, but, not being a Texas criminal attorney or scholar, I don’t think it would be appropriate for me to try and answer it without a lot more information and research. My concern was the uncritical and, I believe harmful, acceptance of the Gawker narrative by some fellow feminists.

      Scott, to clarify, I don’t know that they should have charged felony murder. I just meant that was my best guess before I read up on what happened. I would have thought any underlying felony based on the shooting would merge, so JRM’s claim that it wouldn’t in Texas is surprising. I’d have to look into it and I’m not going to since it isn’t relevant.

      Thanks for sharing the article, Scott and thanks to Berry for inviting me to the conversation via twitter!

      • Douglas Knight says:

        I agree with all of that. I tried to say so in my last paragraph, but I think I came off as too negative. Sorry.

  13. Joe from London says:

    “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?)”
    It’s hard to sympathise with a blogger whose issue is that the comments section contains things worth reading. I think this is what’s known as a First World Problem.

  14. Alex says:

    I enjoyed your original (more wrathful) conclusion personally.

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