Saturday, June 08, 2013

And Yet More on The Ezekiel Gilbert Case in Texas

When I wrote my first blog post on this topic, I expressed a bit of cynicism about the idea that Texas could actually acquit someone on the shooting death of an escort,  based on the right to retrieve stolen property.  But then I got carried away with the flow of articles on the topic.

Now Bridget Dunlap at Rheality Check has written a piece about the case which clarifies some issues:

First, the defense used two arguments, one of which was the Texas law about retrieving stolen property.  The second one was the argument that the accused aimed at the tires of the car in which the victim and her driver were seated, and therefore did not intend to kill.

We cannot tell which of those arguments (if the jury chose one over the other) was used as the basis of the acquittal decision.  Thus, the outrage shouldn't have been aimed at the jurors but at that particular Texas law which the defense used.  And perhaps at the judge in this case.  Dunlap writes:

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.
I think Texas’s defense of property law is abhorrent and my gut reaction was that it was a reprehensible defense. This reaction suggests, that you should think twice before hiring me as your defense attorney, sadly. As Professor Michael W. Martin of Fordham Law’s Federal Litigation Clinic reminded me: “If the law allows the defense, the lawyer must use it, if it is viable, unless there is a good strategic reason not to. Otherwise, it is ineffective assistance of counsel. If the lawyer feels like he is ethically barred from using a legal, viable defense, he should ask to be relieved.”

I'm glad about this additional  legal information.  I feel a little less like someone suddenly waking up in an alternate reality.