June 27, 2003

It was a great day in Texas today for justice

Tony over at I am Always Right points to a story about a disturbing individual who lured a suicidal woman to Texas so he could murder her while having sex, but who was apprehended before actually committing the murder and asks is it illegal to think about killing someone? Tony concluded with this statement:

I'm not saying the guy doesn't need help, I'm saying that I don't actually see where the guy actually did anything wrong.

I responded to him in his comments and had this to say:

Tony, according to the information in the story, it is hard to tell whether she set him up or he instigated the ordeal. While she might have been contemplating suicide, most of us would attempt to help her find assistance to save her life. Instead, it seems like he urged her to go forward with her plan to die, but he wanted to do the killing. He was not charged with murder, he was charged with attempted murder. That charge requires more than just thinking about committing the deed, it requires some act in preparation of doing the deed. In this case, he had already purchased the flowers he planned on using during the killing and the device to use in the killing. Now, of course, the lady could have been a law enforcement plant to catch these types of predators, but he was a predator, prowling around for suicidal women to kill during sex. I am one of those attorneys who read your blog, and I am from Texas. This defendant may have been smart to take the probation deal because it is difficult to determine what a jury might do with this set of facts. It is not illegal to think about murdering someone, but it is illegal to do any little thing in furtherance of actually committing the murder.
It is sometimes hard to understand what constitutes a crime, and sometimes it is only after you are caught that you find that you have actually committed one. I recently represented a young man who had burglarized a church, and he freely admitted he had done so, but could not understand why he had another, higher level, charge for engaging in organized criminal activity. He had committed this crime with two other young men, and they had formulated the plan to burglarize the church and to trade the stuff they stole for drugs and then to split up the drugs. To commit a crime in combination with one or more other people with the intent to share in the proceeds constitutes the crime of engaging in organized criminal activity. He didn't know that.

Tony also reported that Chante Mallard had received 50 years for the murder of the man she hit and let die laying in her windshield. I had gotten a CNN blurb in my email that said she got 60. She was sentenced to 50 years for the murder and 10 for destruction of evidence. Texas judges rarely stack sentences, so 50 years is correct. Now, what does that sentence mean? It means, most likely, [there may be some factors that I am not completely aware of that might make this a false statement] that she will have to serve a minimum of 25 years before she is eligible to be considered for parole.

There was definitely some confusion, even among the journalists covering the story as to the sentence. When I initially accessed Tony's link to ABC News version of a story penned by Associated Press reporter, Angela K. Brown, the headline to the story read:

Life Sentence Avoided
But Former Nurse's Aide Gets a Total of 60 Years for Windshield Slaying
I linked to it again, forgetting I still had the story up in another window, to determine where Tony had gotten the 50 years when the headline had proclaimed 60 years. It was not more than 5 minutes between the time I launched the first window and the second window, but the headline in the second window had already been changed to
Life Sentence Avoided
But Former Nurse's Aide Gets 50 Years for Windshield Slaying.
I had argued on Jen Speaks, whose server space Tony shares, that I might have argued against a murder conviction had I represented Ms. Mallard. I said this in my comments to the story she ran about the case:
Is the case [bing being] shown on Court TV? I live only 30 minutes from FW and it is all over the news here, but did not realize it was being televised all over the Nation. I agree, she should have done something to assist the man. I am not sure whether he jumped in front of her, so maybe that part was not her fault, but she should have gotten some medical assistance for the man. The only thing that comes to mind, however, is either she was too intoxicated and was afraid of being arrested for DWI (stupid) or if he had survived he would have testified that she ran off the road and hit him, which would have also gotten her arrested. This woman must have rocks in her head for she was so stupid, because if either one of the above was true, she would not have been sent to prison [for life] for either act. Even if he died after she hit him and took him to the hospital or someplace else, and she was drunk or intoxicated, it would not be a murder case, only a manslaughter case, in which the maximum punishment is less than life in prison. What a ding bat. She deserves whatever the jury gives her. Of course, it is not a Capital case. However, if I was her attorney, I would be working toward getting the jury to convict her of manslaughter, because actually I think she had no intent to kill the man, only is guilty of reckless indifference which is different than knowing and intent. [I edited my remarks in this rendition as shown]
Our Constitutions, both the US version and the Texas version, mandate adequate assistance of counsel for people charged with crimes. I am often called up to provide such counsel for people who commit crimes. Does that mean I like people who commit crimes? No, or at least not all of them. There are some who I represent who I feel have bonafide excuses for their transgressions, like mental defects or mental incapacity. I do not always agree with what is criminal as many of you who have read my opinions about drugs are aware. And often, I spend time with these individuals, and get to know them, feel their humanity and shame. A lot of my clients, and the majority of people charged with crimes, are young people who made stupid mistakes. I often have compassion for their predicament and how their families are also victimized by the punishment they receive for their crimes.

As a defense attorney, what I always hope for is a reasonable prosecutor who will listen to what I have to say about my client and attempt to work with me to formulate a punishment that will benefit both society, my client and his family [who are members of society]. In my area, this is very difficult. Our felony prosecutor seldom has any compassion for my clients or their families. However, he has been in office for an extremely long period of time, so he must be doing what the voters want him to do. He continues to be re-elected.

What irks me the most is juries who fail to listen to all of the evidence and use their common sense to find the truth. Too often, I feel they did not even listen to anything, as if they had made up their minds before the case even started. To me, that is a complete miscarriage of justice.

In both of the above cases, however, I am convinced justice was served. The demented killer of suicidal women pled guilty and the judge set rules so as to stop him for repeating his actions. The jury in Ms. Mallard's case came back with something less than life, so they at least considered Ms. Mallard's utter stupidity. All in all, even from a defense attorney's point of view, it looked like a good day for justice in Texas today.

Oh, just to add a final point. I am running for County Attorney next year, and if elected, I will be the prosecutor, at least for the misdemeanor offenses committed in my county. Attorneys are trained to always be able to work both sides of any case. Having been a defense attorney for a number of years ought to assist me in being a very good prosecutor, just as being a prosecutor for a number of years usually prepares one to be a great criminal defense attorney.

Update: Ken at CrimLaw had this to say:

The main defense was that "murder has to be an act not an omission." Therefore, since she did not intend to hit and kill him she was not responsible for murder. Intellectually that argument has some merit but there is no way a jury buys it. Of course, it's not like the defense attorney had much else to work with and it will provide him with a valid appealable issue.
I did not address the appellate possibilities of the conviction, but this argument is much like my stance in that she did not knowingly and intentionally kill the man, but only displayed reckless indifference to his medical condition, which in turn, resulted in his death. Knowing our Texas Court of Criminal Appeals, it is unlikely this one will be overturned within the state system, and will likely make it to the U.S. Supreme Court at some point in the future. However, it is very likely Ms. Mallard will remain behind bars unless and until her conviction is reversed.

Posted by Tiger at June 27, 2003 07:35 PM