Will “Mistake of Fact” Save Guyger?

She was coming off a 14-hour shift as a Dallas police officer. He was minding his own business in his own apartment, going about his life until she took it from him.

A white off-duty police officer who lived in Unit 1378 — directly below Mr. Jean — claimed that she mistakenly entered the wrong apartment after returning home from her 14-hour shift and believed Mr. Jean, who is black, was an intruder. Officer Amber R. Guyger, 30, fired her service weapon twice, striking him once in the torso.

Botham Jean was in his apartment when some random woman entered and “commanded” him to do something. It’s unclear what she claims to have commanded of Jean, but she says he ignored her. Of course he did, because he was in his own apartment and she was some crazy intruder. And she claims, now that she’s going to trial for murder, that she made a mistake of fact, thinking that he was in her apartment, which was one floor below, and he was the intruder. Texas has a very broad Castle Doctrine, and with two bullets from her service weapon, Botham Jean was dead in his own apartment. Oops, her mistake.

There’s been no indication that Jean confronted or otherwise threatened Guyger when she entered his home and shot him from across the room. Rather she says she fired twice believing that Jean was an intruder and that she was acting in self-defense after she “gave verbal commands that were ignored.”

Still, Wilson said the focus of the trial will likely be whether Guyger had alternatives to shooting and killing Jean. To answer that question, he said, the jury will need to know how Guyger ended up in Jean’s apartment.

Of course, had Jean confronted Guyger, he would have been entirely in the right because she was the intruder in his apartment, and the breadth of the Texas Castle Doctrine would inure to his benefit. As far as Jean is concerned, what difference does it make how Guyger ended up in his apartment? He’s dead.

Guyger’s attorneys are expected to argue that she isn’t guilty of a crime because she made a “mistake of fact,” meaning she believed something to be true but it wasn’t.

The “mistake of fact” defense is a tricky one, comprised of two prongs, subjective and objective. Did the person actually believe something to be true that wasn’t? Was her belief objectively reasonable?

This is where the question of how she ended up in Jean’s apartment comes into play. Sure, anybody could press the wrong button on an elevator and come out of the wrong floor of a homogenized apartment building where every floor looks the same. But Jean had a red mat in front of his door. Guyger did not. Then there’s the question of how she got in since it wasn’t her place.

The officer told investigators the door was slightly ajar and then fully opened when she inserted her computerized chip key; lawyers for Mr. Jean’s family said the door was closed. Officer Guyger said in court documents that when she opened the door, the apartment was dark and she saw a silhouette of someone she thought was a burglar. She said she shouted commands that were ignored. Neighbors, however, have told lawyers for Mr. Jean’s relatives that they heard someone banging on the door and shouting, “Let me in!” and “Open up!” before gunshots rang out.

The defense doesn’t deny, as well it can’t, that Guyger shot and killed Jean, but that it was a tragic mistake.

[O]ne of Guyger’s attorneys said he did not believe the law supported a murder conviction because his client made a mistake.

“Two innocent lives have been forever changed,” Robert Rogers said after Guyger was indicted in November.

“I feel for Botham Jean’s family, and I can’t imagine the pain they are going through. But when you look at the law, this was a tragic mistake.”

This is where the law gets hard to understand at a gut level, and requires one to leave the feelings outside. If Guyger can successfully prove her “mistake of fact” defense, it negates the mens rea element of murder. Her intentions were pure, even if wrong. She was merely defending herself from an intruder in what she believed to be her apartment, which would have been entirely lawful but for the fact that it wasn’t her apartment, but the man she killed.

Does it seem terribly unfair, particularly here where all sympathy flows toward Botham Jean, who should be alive today and enjoying his life but for Guyger’s bullets? Absolutely. There is nothing about the defense that’s “fair” to the victim or his family. But fairness to the deceased, Botham Jean, has nothing to do with whether Guyger’s conduct was murder. If her defense undermines the elements of murder, it makes the mistake no less tragic, but not criminal.

What about alternatives, if it turns out that she lacked the mental state necessary to be convicted of murder?

Guyger was initially arrested on a manslaughter charge. But in Texas, manslaughter is a reckless act — like firing a gun into the air and killing someone. A grand jury indicted Guyger on a murder charge because investigators believe she intended to pull the trigger.

The assumption that an imperfect murder case automatically drops down to a lesser degree, or lesser offense like manslaughter, is often wrong. Each crime has its own elements. Sometimes they reflect some of the elements of the crime above it, but not all, so that an imperfect murder 1 becomes a murder 2. But in this case, the killing was certainly an intentional act: she drew a weapon, aimed a weapon and fired her weapon with the intent to put a bullet into Jean, which she did, causing his death.

Does this mean Guyger could get away with killing this 26-year-old accountant whose worst offense appears to be not washing the dishes as regularly as he should in his bachelor pad? Maybe, but the “mistake of fact” defense has some difficult road to travel before getting her reasonably within Botham Jean’s apartment to murder him.


19 thoughts on “Will “Mistake of Fact” Save Guyger?

  1. Guitardave

    “Two innocent lives have been forever changed,”

    Is it some form of strange attractor, a kind of ‘stupid gravity’, that brings these people together?
    I think the headline should have been “Stupidest cop on the planet hires the stupidest brain-dead soulless lawyer in the world”
    Oh, wait…..I guess innocence is like wealth, we can redistribute it when one side has “too much”, right?
    …..and may god have mercy on your soul, Bob Rogers.

    1. SHG Post author

      Guyger may not be guilty of murder. Heck, she may not be guilty of any crime. But to call her “innocent” in the same breath as Jean may push the limits of tasteful rhetoric a bit farther than most of us can stomach.

      That said, if she’s not found guilty, then she is innocent, because that’s how it works.

      1. Guitardave

        “the limits of tasteful rhetoric” …stop it, laughing doesn’t mix with my cheap bourbon hangover.
        Hanging around here has taught me there is no debate as to the possibility of her legal innocence. I just can’t fathom how someone with so little situational awareness (14 hour shift or not) gets a job that allows you to shoot people….makes my brain hurt.

    1. SHG Post author

      There may well be recklessness in Guyger entering the wrong apartment, but it’s hard to see any recklessness in her killing Jean. That was deliberate start to finish.

  2. L. Phillips

    The complete lack of known interaction between Guyger and Jean prior to the shooting, at least in news reports that I read, is interesting when looking for motive.

      1. B. McLeod

        Indeed, if they knew one another and had any kind of history, that would change the whole picture. Otherwise, her story seems plausible simply because she would have no reason to break into a complete stranger’s apartment and shoot him.

  3. Bob

    It sounds like she has a good argument for imperfect self-defense: she honestly believed she was in her apartment and that it was self-defense, but her belief was objectively unreasonable under the circumstances. That’s still an intentional killing, but it’s manslaughter in most states (though I admit I don’t know if those include Texas).

    1. SHG Post author

      Has anyone suggested she invented the wrong apartment argument? The question is whether it was objectively reasonable, not whether she believed it.

      1. Warren

        If the scenario was changed to a civilian with a concealed carry permit instead of a police officer all other circumstances being the same, would a civilian be able to use the same defense? I don’t see any mention of qualified immunity, not applicable here?

  4. Habeas Humor

    ‪I’m not a Texas lawyer, but I thought the law there doesn’t allow mistake of fact for an affirmative defense. [See Bryan v. State, 814 S.W.2d 482, 483 (Tex. App.–Waco 1991)]‬

    1. SHG Post author

      If the judge allows it, it’s allowed. If she’s acquitted, that’s the ballgame. If she’s convicted, it’s unlikely she will appeal a favorable ruling. So even if it’s an mistaken ruling, so what?

      And that’s not what they case holds, now that I looked.

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