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.

Anatomy of a Murder: Prelude

Assume for the moment a hypothetical.

A State executes a person convicted of a double murder. That person had been found guilty beyond a reasonable doubt by a properly constituted jury of his peers. The jurors, however, had been provided false evidence of guilt and had been deprived compelling evidence of innocence. Given that hypothetical, is somebody guilty of murder?

To put it another way, I guess, can the Texas justice system be used as a murder weapon?

I can cite at least one jurist who claimed that, indeed, such behavior would be murder. I speak of the Honorable Judge George H. Godwin. At the time he offered his opinion, he was presiding Judge of the 174th District Court of Texas. More specifically, he was the presiding Judge in a capital murder trial that hinged, at least in part, on blood evidence.

Judge Godwin was faced with a flurry of objections from defense counsel regarding last moment, surprise forensic evidence. Defense counsel objected to the lack of discovery regarding that evidence. Defense counsel argued that the State had not laid a proper predicate, that the evidence about to be presented might be inadmissible and the jury thereby contaminated.

It was at that point that Judge Godwin opined about the murderous implications of forensic evidence improperly presented. Let's turn to the transcripts:

The Court: Well, they better tie it up properly. If they don't, Mr. Hughes may not be the only one charged with murder.

I concede that's not much of a legal argument, particularly since the Honorable Judge George H. Godwin was a crappy judge. He had, after all, just allowed the now thoroughly disgraced James Bolding to test the alleged murder weapon while sitting in the jury box, right in front of the jury. The Honorable Judge Godwin had just denied a defense request for the time and expertise necessary to review the results of other forensic tests, tests actually conducted in a lab and just recently completed. Judge Godwin ruled instead that a brief phone call (relayed through the DA) was sufficient. In fact, Godwin ruled that the defense had already received more than they deserved, more than they could have dreamed of.

The Court: ... you've got something that many defense lawyers have always wanted; that is, you're seeing the actual testing right before your very eyes.

That was such a brilliant judicial ruling that the State parroted it during its closing argument.

Mr. Noll: They checked for blood not only on the clothing but on the knife right here in front of you. Normally the defense tactic would be they did something over there sneaky, but this time it was done in the witness stand where they could watch and they're still complaining about it.

If Mr. Noll, or Mr. Bolding, or the HPD did do something "sneaky", and that sneakiness resulted in an innocent person being executed, would that constitute murder?

What if the sneakiness consisted of testing a rusty knife for blood using a reagent that reacts with rust as readily as it reacts with blood?

What if the sneakiness consisted of withholding the results of multiple, blood-specific tests finding no blood on the defendant's clothing?

What if the sneakiness consisted of planting the victim's eyeglasses in the defendant's apartment?

What if the sneakiness consisted of extracting a confession under a false promise of leniency?

What if the sneakiness consisted of putting incriminating words in the mouth of a dead girl?

What if, in its well-intentioned efforts to frame the guilty, agents of the State framed the innocent? What if, as a result of those well-intentioned but clearly illegal acts, the State injected lethal chemicals into the innocent person's arm?

Would that be murder?

If so, what should be done?

In this series, we will discuss such weighty matters.

Stay tuned.

Hughes News: Final Letter

I received a letter from Preston Hughes III yesterday. I'll simply post it without comment, other than to  acknowledge the efforts of Ward, Barbara, and Al (and quite a few others) as Preston did in his final letter and in his final spoken words.

I may return to blogging this weekend.

Hughes News: Executed

7:52 PM.

I will not be posting for at least a few days.