Friday, November 30, 2012

Anatomy of a Murder: Texas Penal Code Section 19.02

This is the second post in a series of unknown length in which I dissect a possible murder case in Texas. In the first post, cleverly entitled Prelude, I merely posited a hypothetical. If a person manufactured evidence or perjured himself in a case that led to the execution of an innocent man, would that person be guilty of murder?

In this post, I'll present the Texas law dealing with murder, and weigh that law against the hypothetical circumstances of the hypothetical case under discussion.

Murder, at least murder in Texas, is defined by Texas Penal Code Section 19.02.  Follow the link to view the entire section. I present what I believe to be the salient portion.

19.02 MURDER.
(b) A person commits an offense if 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; or 
(3) commits or attempts to commit a felony ... and in the course of and in furtherance of the commission or attempt ... he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
(c) ... an offense under this section is a felony of the first degree.

The portions I excluded define the terms "adequate cause" and "sudden passion", then use those terms to discriminate second degree murder from first degree murder. I think those portions are irrelevant to the discussion at hand. I believe that under Section 19.02 of the Texas Penal Code, we are discussing first degree murder if we are discussing murder at all.

As spelled out in Section 19.02, the definitions are all-encompassing. Surely there must be exceptions somewhere. Without exceptions, the executioner would be guilty of murder, as would be any police officer who killed someone in the line of duty, as would any private citizen who killed someone in self-defense. The exceptions, called justifications, are spelled out in a series of Sections which I list and link to below:

Section 9.02 -- Justification as a Defense
Section 9.21 -- Public Duty
Section 9.22 -- Necessity
Section 9.31 -- Self Defense
Section 9.32 -- Deadly Force in Defense of Person
Section 9.33 -- Defense of Third Person
Section 9.41 -- Protection of One's Property
Section 9.42 -- Deadly Force to Protect Property
Section 9.43 -- Protection of Third Person's Property
Section 9.51 -- Arrest and Search
Section 9.52 -- Prevention of Escape from Custody
Section 9.53 -- Maintaining Security in a Correctional Facility

With respect to our hypothetical, the only justification remotely applicable is Section 9.21, Public Duty. I'll paraphrase and summarize for those uninterested in following the link.
Section 9.21, Public Duty: Conduct is justified if the actor reasonably believes the conduct is required or authorized by law, by the judgement or order of a competent court or other governmental tribunal, or in the execution of legal process.
Section 9.21 would cover the actions of the executioner, the judge, the DA, and the jurors even if the person executed turned out to be innocent. Each of the players just mentioned was performing a public duty required or authorized by law. The section would also cover police officers who testified truthfully during the innocent person's trial. The section would also cover forensic specialists who had not falsified or manufactured results.

I argue, however, that Section 9.21 would not cover anyone who perjured themselves or manufactured evidence. I'll go out on a limb here and guess that even the State of Texas will not argue that perjury or the manufacturing of evidence is required or authorized by law. The Public Duty justification is available only to those people "performing a public duty required or authorized by law." A person may be required to testify, but that person is not required or authorized to perjure himself. A person may be authorized to conduct forensic analysis, but that person is not required or authorized to intentionally fake results.

I therefore argue that for our hypothetical case, no justification exists for any person guilty of an act described by Texas Penal Code Subsections 19.02(b)(1), 19.02(b)(2), 19.02(b)(3). I agree with the State of Texas that anyone committing any such act in Texas, without legal justification, is guilty of first degree murder.

Stay tuned.

23 comments:

Anonymous said...

TSJ
Forgive me for the criticism as I do whole heatedly support what you're doing.
However, aren't you getting ahead of yourself here? Do we not first need to prove in a court of law that Preston was/is innocent. Then we can consider pursuing this avenue.

tsj said...

Anon,
I'll address that point in the next post.

Anonymous said...

California allows for the death penalty in the case of perjury which leads to the death penalty of someone else. It's aggravated perjury. It's the only state that I think does.

However the crime is perjury and it is a felony if extreme enough and it would be under Texas law here. However the statue of limitations for perjury is 3 years.

Mike

Anonymous said...

Mike, there is no statute of limitations for murder. If someone caused the death of another in the course of and in furtherance of committing aggravated perjury, the statute of limitations for perjury is irrelevant.

Anonymous said...

He wants to frame it as murder to get around the statue of limitations, but the state legislatures explicitly wrote the rules regarding perjury to define how people need to act in these situations and what the penalties are for wrongful behavior. They could have defined murder as "Committing perjury in a legal instance with the end result being the death penalty" Then the statue of limitations of murder would apply. Or they could have written the statue of limitations of perjury doesn't apply. As it is, somebody had until 3 years after the trial to get the DA to file perjury charges. However these doesn't take away from any civil cases they have or can be brought.

So instead of arguing that it's murder, the argument should be that the rules should be changed.

Mike

Anonymous said...

No, Mike, there wouldn't be any perjury charge. Section 19.02(3) is Texas's felony murder statute. You don't have to be charged with the underlying felony in order to be charged with felony murder. A charge for aggravated perjury would be barred by limitations, but TSJ is not wanting a perjury charge, he's wanting a murder charge.

They defined murder as causing a death by committing a dangerous act in furtherance of a felony. I'm not completely convinced that committing aggravated perjury in a capital case qualifies, but I'm open to persuasion. Personally, I think such a crime ought to be a capital offense, but we don't live in a world where my opinion matters.

Because of the statute of limitations on perjury, unless you could get a homicide charge to stick I don't suppose anyone who perjured himself in a capital case can be criminally prosecuted if the perjury only became apparent after the execution. It might be that a federal 1983 would be the only recourse.

tsj said...

There's much to discuss here in the comments. I'll generally save my thoughts for the next post. However, I want to respond to one point now.

Anon said that "TSJ is ... wanting a murder charge." That's not correct. At this point, I'm only discussing a hypothetical. At this point, I'm only wanting the discussion we are now having.

Anonymous said...

Except I am taking stance with your idea that this is hypothetical. The state legislatures have decided that in the cases of lying on the witness stand or doing other unethical things are crimes and have their punishment with them. California has decided it's as bad as the murder and you can get the death penalty for it, but Texas you wouldn't, just prison time.

Mike

Anonymous said...

TSJ,

Sorry for my overstatement. I think, "TSJ is … wanting to look into the possibility of a murder charge" would have been more accurate.

Mike,

Let's imagine a more conventional felony murder. Someone robs a convenience store. Fires a warning shot, and the clerk dies of a heart attack. If the robber was captured 15 years later, he wouldn't get to go free just because it's past the statute of limitations for robbery. Just because robbery has its own punishment and its own statute of limitations does not bar a murder charge for which robbery is the prerequisite.

The fundamental notion behind the lack of a statute of limitations for homicide is that it is a crime that time cannot wash clean or ameliorate. The fact that other crimes were committed that led to the homicide does not change the fundamental point.

Anonymous said...

Let's take your scenerio and say that the state passed a law that an indirect killing like a person having a heart attack was called X and had a limitation of Z years and that happened. Which law gets precedence? I would say that my law would be the definition used for the crime and the X punishment and Z limitation apply. So how do the states handle the "hypothetical" situations described? There are laws against that behavior so the legislatures have been explicit in how they handle them. So the question is if the X punishment and Z limitations in these situations are too light.

Mike

Anonymous said...

I would strongly recommend that you take this seriously and pursue it, rather than treating it as a hypothetical. The best way to make sure this doesn't happen again would be to have those responsible charged with murder.

Also, note that it is unnecessary to prove that Preston was innocent. Texas law does not require or authorize perjury even in the case of a guilty individual, and therefore one who causes someone's death -- even if that person is guilty of murder -- via perjury will not have recourse to the exception clause, and therefore he will be guilty of murder according to Texas law.

So all that is necessary is to show that the perjury was a significant cause of Preston's death, and this would not be so difficult to do.

Anonymous said...

Also, the Texas penal code makes aggravated perjury a felony, but does refer to the possibility that it will lead to someone's death. So the discussion of California law is not relevant. Since Texas does not specify what happens in that case, a person who commits aggravated perjury in Texas which leads to the death penalty for someone can be charged at least with felony murder, and with murder directly if he directly intended that the person receive the death penalty.

Anonymous said...

I meant to say that Texas law "does not" refer to the possibility that it will lead to someone's death.

Anonymous said...

Mike,

Every homicide is an aggravated form of another crime. I really don't think it's possible to commit an act that would qualify as murder or manslaughter without it also qualifying as another, lesser offense. If I go next door and beat my neighbor to death, I will have committed assault, aggravated assault, attempted murder, and murder. That does not mean that I get off for the murder when the statute of limitations on misdemeanor assault runs in two years.

None of these laws take "precedence." I could be charged with all of them at the same time. The State could put on its case, send back a list of the offenses that I'm charged with, and let the jury pick which one to convict me of.

Of course, the farther from the date of the offense, the realm of possible charges would shrink as some of them start being limited. But the murder charge will never go away, even if I can no longer be charged for the assault that caused the death.

Anonymous said...

It's easy to prove me wrong, just walk into the DA's office and have them file murder charges. Let's see what happens.


Mike

Anonymous said...

Apparently the Bexar County DA, Susan Reed, says she is considering filing charges against Juan Moreno for the murder by perjury of Ruben Cantu. So this isn't unprecedented.

Anonymous said...

No, she is not. Reed conducted an investigation and published a report in 2007 which found there was nothing to support the conclusion that Moreno lied regarding his ID of Cantu or that Cantu was wrongly convicted.

Anonymous said...

Right, the story I looked at was old (as I only noticed after your comment). Nonetheless, she was at one point considering that possibility.

Anonymous said...

No, she was not. She conducted an investigation because all the usual suspects were spewing the same old shit about an innocent person being executed. It was done to restore public confidence. But there was never any credible evidence that Moreno committed perjury.

Anonymous said...

What happened on 15th Nov (as well as other possibly suspect cases I would imagine) was an outrage. What would have been another month, six months or year to test vital DNA evidence, if they were so sure of his guilt?
While such course will undoubtedly be long and arduous, I agree with Anonymous (December 1, 2012 1:21 AM) in taking these claims seriously and considering their pursuit.
Incidentally, according to the Death Penalty Information Center website, a former Texas DA (I think it is the DA in any case) is being investigated for perjury and I believe he is due to or is undergoing, as we speak, an evidentiary hearing on the issue - the outcome of which will be interesting.
Furthermore, I am aware that the NY Innocence Project are now leading a push for the posthumous exoneration of Todd Willingham, with a range of past arson cases to be reviewed (including, presumably, Willingham's)in January. Whilst not directly applicable to Preston's case, I think a review of the Willingham case possibly leading to a finding of a wrongful conviction could set a favourable precedent - it will be interesting to see how both these issues develop. I am not sure what the rules are now with regard to the storage of DNA in Preston's case (notwithstanding, the court order in 2007 which ruled that the evidence not be destroyed) but I sincerely hope that they can be compelled to hold on to it, lest they may have conveniently "lost" or contaminated it as in Hank Skinner's case.

Maria

Anonymous said...

http://www.deathpenaltyinfo.org/texas-court-inquiry-examine-prosecutorial-misconduct

Here is the link in connection to the story mentioned above. The former Bexar county DA will be the subject of a Court of Inquiry from Dec 10th.

Maria

Anonymous said...

It was kicked to February 2013 and I will be surprise if it goes forward even then.

tsj said...

Thanks for the link, Maria. I wasn't aware of that one. I'll incorporate that into the discussion.

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