Anatomy of a Murder: Case Studies

So far in this plodding series of unknown length, I believe I have established that, under Texas law, anyone who commits a felony material to an execution is guilty of murder. In this post, I will discuss the dearth of cases involving murder by falsification. I find only two worthy of mention. The first is from 18th century England. I found it in "Murder by Perjury", by John C. Hogan.

The only instance in modern times of a court in England passing on this subject is The King v. Macdaniel and Others. The facts in this case were as follows: By statute, the government had offered to reward, with forty pounds, any person who would convict a highway robber. Mary Jones (a widow), Stephen Macdaniel, John Berry, and Thomas Cooper conspired against an innocent person, Joshua Kidden, to recover this reward. They arranged an indictment of Kidden for having robbed Mary Jones on the highway, a crime he never committed.

Mary swore in court positively as to the person of the prisoner, equally positively as to the circumstances of the fictitious robbery, and she was confirmed in all this by the false testimony of John Berry. After Kidden's conviction and execution as a highway robber, the reward was collected and divided among the conspirators. 

Sometime later, the Constable of Blackheath arrested one Blee on suspicion of theft, and this led to the discovery of the conspiracy and contrivance to gain' the reward. Subsequently, Stephen Macdaniel, John Berry, and Mary Jones were indicted before Mr. Justice Foster at the Old Bailey, June session 1756, "for the wilful murder of Joshua Kidden, in maliciously causing him to be unjustly apprehended, falsely accused, tried, convicted, and executed, well knowing him to be innocent of the fact laid to his charge ..."

Both accounts of the case say that the defendants were convicted of this offense, but the judgment was respited, and that the Attorney General, Sir Robert Henley, refused to argue the point of law; not necessarily, though, because he believed it was not good law, but for other reasons, which are not clearly stated in any of the sources.

The referenced article gives the only summary, and hence the best summary, I found regarding the history of murder by perjury. The history in that article necessarily ends at 1961, since that was the year in which "Murder by Perjury" was published. The article noted that, at least then, murder by perjury was specified by Article 309 of the Texas Penal Code as a crime punishable by death.

In the United States, Texas, as well as California has a statute that punishes murder by perjury with death. This statute was commented upon in the case of Smith v. State, where the defendant sought to have a witness declared incompetent to testify against him because she was not old enough to incur the death penalty for false testimony. The court said that in order to make this position tenable, the conviction would have to have been for the death penalty, not for imprisonment.

The statute requires ... not only that the death penalty might be inflicted, ... and that the witness testified to some material fact bringing about or tending to bring about that conviction. ... Tex. Crim. App. 273, 164 S.W. 838 (1913)

I found a copy of the 1925 Texas Penal Code, and there it is:

Art. [311][208][195] Perjury in capital case.-

When the perjury is committed on a trial of a capital felony, and the person guilty of such perjury has, on the trial of such felony, sworn falsely to a material fact tending to produce conviction, and the person so accused of the capital felony is convicted and suffers the penalty of death, the punishment of the perjury so committed shall be death.

So the law was on the books prior to 1913, in the year 1925, and as late as 1961. It's not there now. Note, however, that I have not been arguing there is a specific crime of Murder by Falsification in Texas, and I certainly haven't been arguing that such a crime would be a capital murder. I have been arguing instead that Murder by Falsification is just as much murder as is Murder by Stabbing, or Murder by Poison. None of those specific types of murder are defined specifically by the Texas Penal Code. Each is simply murder. Each could be capital murder if one of many special conditions was met, such as the killing of multiple people during the same event.

The second case study confirms that a perjurer in a Texas capital murder case can be charged with murder. I refer you to the Houston Chronicle article "'Murder by Perjury' in the Cantu Case?".

Juan Moreno ... was shot nine times and left for dead in a 1984 robbery in San Antonio. A companion of Moreno was shot to death during the robbery. 

Then, Moreno says, he was pressured by police into identifying the wrong man after repeatedly saying it wasn't him. 

That man, Ruben Cantu, was executed based on Moreno's testimony in a 1985 trial. 

Now Bexar County District Attorney Susan Reed says if her investigation supports Moreno's contention that the wrong man was executed, she may file charges against him. 

For perjury? No. The three-year statute of limitations ran out a long time ago. 

For the murder of Ruben Cantu. ... "A man has been executed because of that lie. That is pretty serious stuff. There are consequences for that. ... If there were not consequences, then the system would allow itself to be attacked. The integrity of the judicial system is all based on truth, most importantly presenting the truth to the jury." 

... Ironically, the statute under which Reed says she would likely charge murder is the same one used here in Harris County to charge the Pasadena school bus driver for murder for accidentally running over a 9-year-old girl. Under that statute, it is felony murder when, in the course of committing another felony (perjury, in this case) a person commits "an act clearly dangerous to human life that causes the death of an individual."

For considerably more detail on the pliable witness that is Juan Moreno, see my post The Case of Ruben Cantu. I'll provide an early and a late paragraph from that post to bring you up to speed quickly.

Two men were shot and robbed while guarding a house under construction. One of the victims, Juan Moreno, survived and identified Ruben Cantu as one of the two men who robbed and shot them. Moreno made that identification only after four previous interviews in which he was unable or unwilling to identify Cantu. Based exclusively on Moreno's testimony, and despite an alibi witness, Cantu was convicted and executed. ... 

I know now that Juan Moreno was and is a malleable witness. The Bexar County DA must have known that as well, yet they used him as the sole basis for the conviction and execution of Ruben Cantu. After the execution, after Juan Moreno had recanted his testimony, the new Bexar County DA dismissed Juan Moreno simply because he changed his story. Their confidence or skepticism in Juan Moreno is as malleable as was his testimony.

Whether or nor Cantu was guilty, it was an absolutely a shaky conviction then, and is even more so today. It's a conviction based almost exclusively on someone who, according the State, lied before trial, told the truth at trial, and lied after trial. That doesn't inspire confidence in the Texas' justice system.

Of interest to me now is that the case has returned to my consciousness after the wrongful conviction of Preston Hughes. It's back because Bexar County DA Susan Reed threatened Moreno with murder if he stood by his recantation, if he insisted he perjured himself at Cantu's trial.

When I first wrote of Cantu, I was unaware that he had been threatened with a murder charge. I learned of it only recently, only after concluding independently that someone committing a felony in furtherance of an execution is guilty of murder. I think the law is clear on the point, and I'm glad DA Susan Reed agrees with me.

I doubt of course that DA Reed ever intended to charge Moreno with murder. The intent of the threat was to convince Moreno to recant his recantation. As best I can tell, Moreno has not recanted his recantation. As best I can tell, Moreno still stands by his claim that he perjured himself. However, rather than charge him with murder, as she threatened, DA Reed simply concludes Moreno is lying now.

Still she makes my point for me. In Texas, one who commits a felony in furtherance of an execution is guilty of murder. And, for what it's worth, there is no statute of limitations on that crime, despite the claims of one commentor.

The Impending Execution of Manuel Pardo

Manuel Pardo sits on death row awaiting execution by the people of Florida on December 11, 2012. I suspect he will not survive the day.

I summarize his case by repeating the entry for Manuel Pardo in Murderpedia. I note that Murderpedia apparently took their entry from Hunting Humans: An Encyclopedia of Modern Serial Killers, by Michael Newton.

Manny Pardo was 21 years old when he joined the Florida Highway Patrol in 1978, but his first stint in law enforcement was short lived. 

Accused of falsifying more than 100 traffic warnings and correction notices, he was allowed to resign a year after he joined the force in lieu of being fired. It seemed a small concession at the time, but it was all he needed: two months later, Pardo was hired by the Sweetwater Police Department to patrol a Miami suburb. Still, his problems continued, and in 1981, Pardo was one of four officers charged in a series of brutality cases filed by the state attorney general's office. 

Those charges were later dismissed, but Pardo was fired on January 21, 1985, after he flew to the Bahamas to testify in defense of another ex-cop held for trial on drug-running charges. 

Even then, the worst was yet to come. On May 7, 1986, Pardo and 25-year-old Roland Garcia were arrested on murder charges, accused in the execution style slayings of drug dealer Ramon Alvero Cruz and his girlfriend, Daisy Ricard, who were shot and killed on April 23. 

Weeks later, on June 11, Metro Dade officials announced that Pardo and Garcia were linked to a total of nine murders -- victims including six men and three women -- dating back to January 1986. 

Detective Ted MacArthur told the press, "They were drug ripoffs, and quantities of cocaine were taken from the scene." The killing spree had ended with Ramon Alvero Cruz, alleged to be Pardo's underworld employer since he was fired by Sweetwater PD. 

As evidence against the killer cop, prosecutors cited Pardo's diary, which included written entries about the murders along with news clippings and photographs of several bloody corpses. Nazi memorabilia recovered from Pardo's home, together with the prisoner's own statements, revealed that he was also an ardent admirer of Adolf Hitier, believing that jews and blacks were inferior species deserving of extermination. 

Legal maneuvers delayed Pardo's trial for two years, but prosecutor David Waksman stood by the state's original theory of an ex-cop gone bad, addicted to cocaine and easy money, killing coke dealers to rip off their stashes, eliminating any witnesses who crossed his path. Pardo denied it, painting himself as a one-man vigilante squad committed to eliminating "parasites" and "leeches" from law-abiding society. His court appointed lawyer, Ronald Guralnlck, was committed to a different tack, presenting an insanity defense. "The man is crazy," Guralnick told reporters. "All you have to do is listen to him to know he's totally out of his mind." 

And, indeed, Pardo seemed intent on proving that point when he took the witness stand in his own defense on April 13, 1988. Testifying against Guralnick's advice, Manny didn't bother to deny the killings; rather, he regretted that his final body count had been so low. "Instead of nine," he told the court, "I wish I could have been up here for ninety-nine." Furthermore, he declared, "l enjoyed what I was doing. I enioyed shooting them. They're parasites and they're leeches, and they have no right to be alive. Somebody had to kill these people." He shot his victims multiple times after death, Manny said, to further "punish" them for their crimes, and he had taken Polaroid snapshots of the corpses, afterward burning some in an alabaster ashtray. "I sent their souls to the eternal fires of damnation of hell," he testified, "for the misery they caused." 

Pardo staunchly denied the state's claim that he, himself, was a mercenary drug dealer. The very idea was "ludicrous" and "ridiculous," he said. Prosecutor Waksman asked about the $50,000 Pardo had earned from selling two kilos of stolen cocaine, the sum recorded in his diary, but Manny insisted that he had kept only $2,000 for himself -- the bate minimum required to purchase guns and ammunition. After Pardo remarked that bullets cost him ten cents each, Waksman asked him whether it had cost him only $1.30 to kill two victims who were shot a total of 13 times. Pardo grinned as he replied, "Thats a pretty good investment, isn't it?" 

With Pardo's sanity at issue, both sides called psychiatrists to testify about his mental state. Syvil Marquit, appearing for the defense, reported that Pardo was insane and had been at the time of the nine murders. Manny was competent for trial, Marquit said, and understood the physical consequence of his actions, "but he doesn't know right from wrong." Court appointed psychologist Leonard Haber, on the other hand, testified for the state that Pardo was "sane, but evil." Manny, for his part, agreed with the state, at least in regard to his sanity. As for psychologists, he told the court, "They're whores. Pay them enough money and they'll say anything." 

Pardo's extreme racist views may have hurt him as much as the physical evidence of his guilt when he appeared before a jury that included five blacks and two jews. Metro Dade detectives listed the Nazi paraphernalia found in his home and describes the swastika tattoo worn by one of his dogs, a Doberman pinscher. Manny pitched in with testimony that Adolf Hitler was a "great man" whose activities had inspired Pardo to read more than 500 books on Nazism. The jury deliberated for six hours on April 15 before convicting Pardo of nine murders and nine other felony counts, including robbery and use of a firearm in commission of a crime. 

Court reconvened five days later to consider Pardo's sentence. Attorney Guralnick and Manny's parents pleaded for leniency, citing his deranged mental state, while prosecutor Waksman argued the reverse. "He was weird, weird, weird," Waksman said, "but he was not insane." Pardo, meanwhile, was determined to remain the star performer in his own private drama. "I am a soldier," he told the court. "I accomplished my mission, and I humbly ask you to give me the glory of ending my life and not to send me to spend the rest of my life in state prison. I'm begging you to allow me to have a glorious end." The jury complied, and judge Phillip Knight accepted their recommendation, handing down one death sentence for each of Pardo's nine murders, plus a term of 15 years in prison for the noncapital charges. 

His commitment to death notwithstanding, Pardo made no objection when his conviction and sentence were automatically appealed to the Florida Supreme Court. There, on March 6, 1990, public defender Calianne Lantz told the assembled justices that Pardo was insane when he committed his nine murders. Assistant Attorney General Ralph Barreira disagreed, describing Manny as a brute who simply liked to kill. The court agreed with Barreira, affirming Pardo's conviction and the "special circumstances" which allowed his execution under Florida state law. A year later, on May 13, 1991, the US Supreme Court effectively upheld that decision, denying Pardos plea for a writ of certiorari. 

Pardo, meanwhile, had managed to attract at least a handful of admirers while his case was winding through the courts. One such, a self-described friend of the convicted serial killer, voiced his support in a letter to the Orlando Sentinel Tribune, published on April 22, 1990. It read, in part:

Manny was never accused of corruption. He was let go for his overzealousness in pursuit of criminals -- no matter who they knew or whose relatives they were. And lest anyone get the idea that he just cruised around gunning people down, let me point out each of his victims was a thoroughly investigated, tried, convicted, and executed (by him) drug dealer whom Pardo had failed to get off the streets via the normal criminal justice system. Manny Pardo doesn't deserve condemnation, he deserves a commendation.

In fact, as even cursory research would have shown, Manny had been fired in Sweetwater for "showing a lack of good judgment and a habit of lying" -- specifically in defense of an accused drug dealer -- but the details hardly mattered. He was awaiting execution at Starke, the state's maximum-security prison ... but he was not entirely out of action yet. 

In March 1996 the Miami Herald revealed that Pardo, now christened the "Death Row Romeo," had been placing personal ads in tabloid newspapers, attracting lonely female pen pals who had mailed him thousands of dollars in return for hollow promises of love. The Herald reported that Manny had once accumulated some $3,530 in his prison canteen account, most of it sent to him by women, but prison officials declared that he had broken no rules, "although he may have broken several hearts." The lure was an ad that painted Manny in a near-heroic light. It read:

FLA. 116-156 CORRECTIONAL INSTITUTE INMATE. Ex-cop Vietnam vet. Took law into own hands and ended up on Death Row. He needs letters from sensitive-understanding female, for real -- honest relationship.

One who responded was Barbara Ford, a 46-year-old cleaning woman from Findlay, Ohio. Three weeks after she answered Pardo's ad, Ford received a letter from Manny, along with several news clips describing his police career in a favorable light. The letter told her, "I want one special lady in my life. I don't play emotional games cause I hate emotional games. I also hate liars and users." From the beginning, Pardo's correspondence always addressed to "the love of my life" -- swiftly degenerated into a litany of complaints, invariably closing with mention of his need for "a few bucks a week to buy personal items like stamps, paper, shampoo, etc." One note describes a tearful prison visit from his daughter, quoting her as saying, "Daddy, when I'm older and able to work, I will buy you a radio so you can listen to music and I will send you money from my weekly check so you can buy coffee, shampoo and your other needs." 

In the meantime, Barbara Ford was happy to take up the slack, sending Pardo $430 from her yearly income of $7,500. Another "love of his life," mailing cash at the same time, was 54-year-old Betty Ihem from Oklahoma who began corresponding with Pardo 10 months before he hooked Barbara Ford. By the time Ford entered the picture, Pardo and Ihem were addressing each other as husband and wife, Betty collecting 275 letters from her incarcerated lover, sending him $1,200 over time from the salary she earned as a part-time WalMart employee. 

The correspondence was finally too much for Pardo, who tripped himself up with a clumsy mistake. On October 12, 1995, Betty Ihem received a letter meant for Barbara Ford. It read: 

My Dearest Barb,

Hi. I hope this letter finds you in the best of health. You are all I want and need. I am not a dream and if my love interests you, well then it's yours.

I love you,

Manny

Predictably furious, Ihem sent the letter on to Ford, with her own explanatory note written on the back. Eight days later, Ford wrote to Pardo, addressing him as "Thief of Hearts" and enclosing photocopies of the money orders she had previously sent him.

You received the money under false pretenses (she wrote) which makes you a fake and not the 'Man of Honor' which you professed to be, Needless to say, you are a liar and a hypocrite -- the very things you said you hated in people. If you choose not to return the money, I will be your very worst nightmare and expose you for the hypocrite you truly are. I'm not a very patient person so I hope you respond to my request immediately. The choice is yours.

Pardo replied on November 2, 1995, with all the arrogance of a condemned prisoner who knows he is effectively untouchable.

Barb,

I hope you are in good health. I am reading your letter and am amazed you think your threats would affect me at all! You and your troubled life will also be exposed. In addition, my attorney will have a field day with you and that will be your nightmare lawsuit for slander, etc. You are a bitter and vindictive woman.

God bless,

Manny

Ford took her case to Florida governor Lawton Chiles on November 18, asking, "What kind of people are you in Florida? You have a guy on Death Row, and he still hurts people." Her reply carne from Judy Belcher at the Florida Department of Corrections on November 29, advising Ford that no law forbade prisoners from placing personal ads or soliciting gifts from gullible pen pals. "On the contrary," Belcher wrote, "Florida Statutes have ruled it illegal to deny inmates that privilege because doing so would deny inmates access to the outside world. Many inmates, both male and female, have accumulated considerable amounts of money this way. They are convicts and some are experts at 'conning' honest people out of their hard earned dollars. Often, when we advise a person that an inmate is not being honest, the person will still choose to believe the inmate." 

With that grudging seal of approval, Manny Pardo was free to pursue his career as a death-row swindler. Only the final, inevitable date with "Old Sparky" will curtail his correspondence with gullible women, and no final execution date has been set at this writing. With others who have killed repeatedly across the Sunshine State, Pardo takes his ease with pen in hand and plays the waiting game.

I take no position on the righteousness or foolishness of the death penalty. I do, however, oppose the execution of anyone who has a substantial claim of actual innocence. For all other instances, I stand mute regarding the probity of the execution. In the case of Manuel Pardo, I stand mute.

ADDENDUM (12 Dec 2012): Manuel Pardo was executed on 11 December 2012 by the people of Florida.

Anatomy of a Murder: Murder by Falsification

In Parts 1, 2, and 3 of this series of unknown length, we have established that if someone, while in Texas, commits a felony that contributes to an execution, that person is guilty of murder. It makes no difference of the defendant was guilty or innocent. It makes no difference if the felony was committed before, during, or after trial. It matters only that the person "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."

For convenience, I will label this crime Murder by Falsification.

In this post, I will merely repeat what I believe to be the relevant sections of the Texas Penal Code that relate to felonies one might commit while attempting to frame someone for murder. I'll allow you, the acute and discerning readers of this august blog, to discuss in the comments how the offences defined under Chapter 37 might apply to our hypothetical murder.

TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION

CHAPTER 37. PERJURY AND OTHER FALSIFICATION

Sec. 37.02.  PERJURY.
(a)  A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:

(1)  he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath;  or 

(2)  he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

(b)  An offense under this section is a Class A misdemeanor.


Sec. 37.03.  AGGRAVATED PERJURY.
(a)  A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

(1)  is made during or in connection with an official proceeding;  and 

(2)  is material.

(b)  An offense under this section is a felony of the third degree.


Sec. 37.08.  FALSE REPORT TO PEACE OFFICER, FEDERAL SPECIAL INVESTIGATOR, OR LAW ENFORCEMENT EMPLOYEE.
(a)  A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

(1)  a peace officer or federal special investigator conducting the investigation; or 

(2)  any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

(b)  In this section, "law enforcement agency" has the meaning assigned by Article 59.01, Code of Criminal Procedure.

(c)  An offense under this section is a Class B misdemeanor.


Sec. 37.09.  TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE.
(a)  A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:

(1)  alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding;  or 

(2)  makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

(b)  This section shall not apply if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.

(c)  An offense under Subsection (a) or Subsection (d)(1) is a felony of the third degree, unless the thing altered, destroyed, or concealed is a human corpse, in which case the offense is a felony of the second degree. An offense under Subsection (d)(2) is a Class A misdemeanor.

(d)  A person commits an offense if the person:

(1)  knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense; or 

(2)  observes a human corpse under circumstances in which a reasonable person would believe that an offense had been committed, knows or reasonably should know that a law enforcement agency is not aware of the existence of or location of the corpse, and fails to report the existence of and location of the corpse to a law enforcement agency.

Anatomy of a Murder: Subsection (b)(3)

This is the third 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 the second post, cleverly entitled Texas Penal Code Section 19.02, I presented the section of the penal code dealing with murder. In this post, I will look more closely at the three subsections under which a person may be guilty of murder. I'll note that many of the issues I intend to address in this and in subsequent posts have been anticipated by astute readers in the comments. Since my desire is, at this point, merely to stimulate discussion, I'm encouraged by the quantity and quality of comments.

As a quick refresher, here are the three subsections under which someone would be guilty of murder in Texas.

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.

I note first that none of the three subsections requires that the murder victim be innocent or guilty of any crime. If, during the sentencing phase of a capital murder trial, a police officer rose from the witness chair, pulled a weapon and shot the defendant dead, that officer would be guilty of murder even if the defendant had just been found guilty by the jury.

To the commentor who suggested this discussion should wait until Preston Hughes has been proved innocent in a court of law, I therefore disagree on two points. First point is as just noted. If someone kills without one of the justifications spelled out in the penal code, one is guilty of murder. The legal status of the victim is of no consequence to this discussion. My second point is that this discussion is not specifically about Preston Hughes, at least not yet. Once we discuss the law, we'll see if the law is applicable to any specific case in which a person was executed.

To the commentor who presumed to know that a previous, similar investigation was conducted "because all the usual suspects were spewing the same old shit about an innocent person being executed," I make the same point: it makes no difference if the person is guilty or innocent of any crime. I add that the comment just referenced was not one of the more lucid. It does, however, reveal more about the commentor than I suspect the commentor would care to admit.

On to considering which of the three subsections might be applicable.

(b)(1) intentionally or knowingly causes the death of an individual

If someone intentionally stabs a person in the neck with the intent of killing that person, or knowing that doing so will result in the person's death, then that someone is clearly guilty of murder under subsection (b)(1). It's less clear whether someone committing perjury in a capital murder trial is similarly guilty. The perjurer might raise a viable claim that he did not intend to cause the death of the defendant. The perjurer might claim instead that he was only attempting to keep secret his past misdeeds in the case. Alternatively, the perjurer might claim that his intent was to see that defendant be incarcerated for life.

Similarly, the perjurer might claim that he did not know his perjury would lead to the defendant's death. The jury might have acquitted. The jury might have not sentenced the defendant to death even if they did not acquit. The perjurer might point to statistical data that notes that only a small fraction of murderers are actually executed.

Finally, the perjurer might claim that his perjured testimony might not have been the cause of the defendant's death. The perjurer almost certainly would claim that the evidence was so overwhelming that the defendant would have been executed even in the absence of the perjury.

You may certainly disagree with me on my assessment, but I suspect subsection (b)(1) is designed to cover the classic, most obvious cases of murder: shooting, stabbing, suffocation, beating, poison, etc.

(b)(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual

I think that offering perjured testimony of guilt, or manufacturing inculpatory evidence, in a capital murder trial is clearly dangerous to the life of the defendant, whom we still presume to be human, at least as a matter of law. I think the challenging portion of this subsection is the requirement that the perjurer, or manufacturer of evidence, intended to cause serious bodily injury. As just noted, the person might raise a viable claim that his intent was not to cause seriously bodily injury, that he intended only to cover his past misdeeds or see that the defendant was incarcerated for life.

(b)(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

This subsection is the only one that does not include intent as an element of the crime. As far as our hypothetical, it only requires that someone contributing to a capital murder conviction commit (or intend to commit) a felony to secure that conviction. Clearly, framing someone for murder in Texas is dangerous to human life and, at least in our hypothetical, led to the death of an individual.

Once again, take note that the law does not discriminate between "guilty" and "innocent" victims. This is as it should be, particularly since perjury (or the manufacturing of evidence) confuses the entire issue of guilt or innocence.

Note also that this subsection is not limited to witnesses. In our hypothetical, anyone who committed a felony as part of a capital murder case that led to an execution is guilty of murder. It makes no difference if that anyone was a witness, and it makes no difference if the defendant was guilty or innocent.

If you commit a felony in Texas that furthers an execution, you are guilty of murder. In the next post in this series, we'll discuss which felonies might occur in our hypothetical case.

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.