Guyger Guilty, But What Should She Get? (Update: 10 Years)

The jury returned its verdict against former Dallas police officer Amber Guyger. Guilty. Not of manslaughter, but murder. This strikes many as troubling, as there was nothing to suggest that Guyger had some personal beef with Botham Jean, a good man enjoying some ice cream on the couch in his own apartment. Murder seemed wrong, as it wasn’t him, personally, she wanted to kill.

So why couldn’t it be manslaughter, a lesser offense to cover a reckless killing. After all, the entire scenario leading to the death of Botham Jean stunk of recklessness, as the distracted Guyger was tired, focused on porn on her phone, made the grievous mistake of going to the wrong floor, the wrong apartment and leaping to the wrong assumption that Jean was a burglar in her place.

The jury apparently rejected her “mistake of fact” defense, which would have inextricably led to invocation of the Castle Doctrine, which would have certainly resulted in her acquittal. This requires an exercise in distinguishing very discrete legal issues. One way to view the case is a continuum, starting with the mistaken entry and ending in the killing of Jean. But that’s not how the lawyers or the court viewed it, as well they shouldn’t.

There were two independent acts involved: first, the entry into the apartment. Second, the killing of Botham Jean. The entry was found to be unreasonable. The jury was not asked to find whether it was reckless as that was not in issue.

But the shooting? It was clearly an intentional act. Amber Guyger drew her weapon, aimed and, with every intention of putting her bullets into the body of the man before her, fired. There was nothing reckless about it, even if the body into which her bullets entered was not the bad man she might have believed him to be.

Where this feels wrong, feels more like manslaughter than murder, is in the lack of motive. She had no motive to kill Jean. But motive is not an element of the crime, but more an emotional connection for the benefit of television viewers who want to love or hate the perp. Guyger’s killing of Jean was not the act of a malevolent cop hating a person, or having an unwarranted fear that this black man was likely a violent threat for no better reason than his skin color. Pathetically, it was a banal screw up, where the person who made the initial mistake happened to be a cop with a gun and the support of the law that she could kill any uninvited person in her dwelling at night.

Murder was the right charge. Murder was the right crime of conviction. There is no question but that the killing was intentional, even if it wasn’t motivated by malice.

But this raises a problem in the next phase of the case, as we associate murder with a malicious heart even if there is a case, as here, where the killing wasn’t venal.

Guyger faces a sentence of five years to life in prison, without the possibility of probation. The sentencing phase of the trial will continue on Wednesday.

By “sentencing phase,” it means the Dallas jury will decide where, between five and 99 years, Guyger’s sentence will be. Had she been convicted of manslaughter, the bottom of the sentence would have been between two and 20 years imprisonment. So the bottom of the sentencing range differs by three years, from two to five.

Is there a “right” place for Guyger to be sentenced here? Surely, the murder of Botham Jean is an unimaginable tragedy, but that only influences one aspect of the concerns in sentencing, and in this extremely peculiar scenario, is of little weight. No sentence can undo the tragedy and bring back a man who should be alive, thriving and enjoying some ice cream on his couch in his own apartment tonight. Much as there’s a visceral sense of “justice” playing out by being harsh to Guyger, the lack of malicious intent tempers even that fury.

Is the right sentence five years? More? Less? The law provides that five years is the minimum allowed, and given her lack of purpose in harming Botham Jean in particular, or even a random black man in what she unreasonably believed to be her apartment, one would be hard pressed to condemn her to a more severe sentence as it serves no legitimate purpose and punishes her for a tragic, if needless, mistake.

But would it have been better to convict her of manslaughter so that she could be sentenced to two years rather than five? Some may see an effective difference between two and five. Some will see the minimum as far too lenient, as this was murder, and murder is bad, and we, as a society, have been indoctrinated into connecting “justice” with harshness for its own sake.

There is no effective difference between two and five years as far as the legitimate goals of sentencing are concerned. Obviously, five is longer, but what will it accomplish that two will not? Amber Guyger has been fired from her job as a Dallas cop. She has been put through the rigors of trial. She will forever be known as a murderer. These are not insignificant consequences.

She will go to prison, assuming the conviction is not reversed, and there does not appear to be any facial reason to suspect it will. She will emerge at least five years later as an ex-con, a murderer and a societal pariah. To the extent convictions and sentences serve any deterrent effect, the message to cops is that even they cannot mistakenly enter an innocent person’s apartment and kill the innocent man.

The minimum sentence should be imposed, but only because the crime was murder, as it had to be. Otherwise, even the minimum sentence is more than necessary to serve any legitimate purpose. But law is a blunt weapon, sentencing is voodoo and each of us holds our own idiosyncratic view of what constitutes “justice.”

40 thoughts on “Guyger Guilty, But What Should She Get? (Update: 10 Years)

  1. That Anonymous Coward

    In hearing community leaders (read as tragedy tourists looking for a buck) interviewed about this, they are painting a picture that no matter the sentence, it will not be seen as enough. They invoke the names of other black people who died at the hands of cops & magically engage the thinking that this event can make up for the other events.
    Pity that isn’t how any of this works.
    Much like how we had to explain that rights aren’t like pie, where if rights get extended to other people it doesn’t mean you have less rights, we need to dispel this magical thinking that the scales can be balanced/reset.

    No sentence given to her can bring him back, sentencing her life plus cancer will not make a difference in showing the inequality between sentences that seem to hinge on race, all it does confirm is that each “tribe” believes the worst of the other & want to punish to get even.

    I’m glad I am not on the jury, there are far to many things people will consider that aren’t central to the facts of the case that will color their thinking and decision.
    Ain’t a perfect system, but its what we have until we decide we need real reform across the board, rather than just in a kneejerk reaction to 1 injustice.

  2. Jim Majkowski

    “More than necessary to serve any legitimate purpose.” Hmm.

    This blawg often distinguishes between “law” and “justice”. Mandatory minimums, whatever else they may be, are “law.” As for “justice,” even the cynic Mencken recognized that one of the purposes of criminal penalties is catharsis. Whether it is a valid purpose we can argue ad nauseum. But, as some reactions to the verdict, and innumerable other incidents, demonstrate, many people demand it. How many years does catharsis require? Probably more than are necessary to make Guyger regret her action. Maybe the blawg’s visiting judge will weigh in and offer his insight.

    1. SHG Post author

      Notwithstanding statutory sentencing ranges, there are 5 purposes to the imposition of a sentence of incarceration:

      Specific deterrence.
      General deterrence.
      Incapacitation.
      Retribution.
      Rehabilitation.

      It’s not whatever you feel it should be. Don’t blame me. It’s the law.

  3. John Barleycorn

    Speaking of something other than your feelings…..

    The prosecution got some text messages summited, and although she may or may not have an “unwarranted fear that this black man was likely a violent threat for no better reason than his skin color” she definitely seems to corelate work ethic and melanin. And patience is definitely not one of her attributes when it comes to working parades.

    So, do-ya figure these text messages will be thrown in before the toads or after the crystals during this particular batch of voodoo sentencing stew AND why?

    1. SHG Post author

      I figured some bonehead would bring up the texts to smear her with some general irrelevant racism for kicks, but I didn’t expect it to be you.

      1. John Barleycorn

        Whatever…. I am just here for the “feelings”, but I was a bit curious as to how the “texts” made it into the voodoo stew and how they will effect the flavor. Figured you might have some insight.

        P.S. You wanna gamble on the outcome after the stew has simmered? We could call it the $1k Voodoo Challenge. Some of your other voodoo expert readers can participate as well.

        To weed out the hot air. If any of those entering does not guess within 180 days they will donate $500.00 to the Dallas Head Start program. If anyone guesses within 180 days everyone participating will donate an additional $500.00 to the Dallas Head Start program in the name of the person guessing correctly (If more than one person is within 180 days add an additional S500.00 for each landing within 180 days). How do you voodoo experts go wrong here?! Or, is it literally voodoo stew and now way even the guilded ones around these parts will have an edge? AND, If so what’s the point of the post other than to point out the unmentionable feelings that arise when the “what’s the point” butter is spread on the voodoo stew bread anyway.,,

        P.S.S. Guilded ones submit their “expert” guesses first.

        1. SHG Post author

          The other voodoo expert readers here are constrained to stay on topic and reside on planet earth. You don’t get to invite them to do otherwise.

  4. ryan

    i dont know the law out in texas, I thought manslaughter would be right under an imperfect self defense theory. She subjectively thinks she is faced with death or great bodily injury, but objectively that was not reasonable, which would be manslaughter. If the jury rejected her subjective belief, ie they did not buy that she actually subjectively thought she was threatened with death or great bodily injury, then it would just be murder.

      1. Bob

        There are two different defenses called imperfect self-defense. One involves the defendant being the initial aggressor, the other is sincere but objectively unreasonable self-defense. As best I can gather, the former is recognized in Texas but the latter isn’t, which is why it wasn’t argued by the defense here.

        But would you care to explain it wouldn’t apply if the defense was available?

        1. Skink

          “But would you care to explain it wouldn’t apply if the defense was available?”

          Do you mean if reality wasn’t really real? We deal with reality in this here Hotel, not abstract bullshit. If you want to discuss abstract bullshit, there’s a wino on the corner. He’ll talk your face off. His name is Jersey. Nice guy; bad breath.

          And knock it off with the “as best as I can gather” junk.” Ban it from your fingers when typing. To the people in the lobby, lounge and hanging around the pool it means “I don’t know shit.” The Hotel is full of accomplished lawyers and judges–they actually do this stuff. But even the wayward sneak-thief, pickpocket that wanders into the lobby won’t listen to you if your opening is “Ima dope.”

    1. Grant

      Your comment (and my initial reaction to the verdict) illustrates the first point of the post, that that approaching criminal law intuitively will lead to bad analysis; this is fun because the statutes’ interaction here leading to the murder verdict is entirely logical (as opposed to, say, a balancing test).

      Also, ‘imperfect self-defense’ is a doctrine prosecutors use to convict people. The rule doesn’t apply here because Ms Guyger did not goad Mr. Jean until he attacked.

  5. Patrick Maupin

    “She will go to prison, assuming the conviction is not reversed…”

    Fun fact, relevant only because Texas — if the jury hangs on the sentencing decision, there will be a mistrial. The jury’s decision is binding on the judge, even as to probation.

  6. Kathryn Kase

    Let’s talk about what’s coming into evidence at sentencing: basically, just about anything the judge wants to allow. Article 37.07(a)(3) of the Texas Code of Criminal Procedure states that “. . .evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing. . . .”

    Theoretically, this broad statement should include mitigating evidence — i.e., evidence showing that the defendant’s grievous error was unique in her life, that she’s unlikely to commit another similar offense (or any offense whatsoever), that she’ll be contained in prison and adjust well to prison, that she doesn’t need a lot of prison to be rehabilitated, and that she still has contributions to make to society upon release. However, if you read the rest of the statute, you’ll see that Texas views sentencing evidence as speaking only to deterrence, incapacitation and retribution:

    “including, but not limited to, the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence , any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.”

    Notably, rehabilitation is nowhere in this mix.

    One can only hope that, notwithstanding Texas’ crabbed view of sentencing, the defense in this case will put on evidence that also speaks to mitigation and rehabilitation.

      1. LocoYokel

        Honestly, after a felony murder conviction and prison time with the resultant red flag that flies over her head making her virtually unemployable with all the bonus issues this brings for the rest of her life after this, what “rehabilitation” do you expect to happen? I am genuinely curious. Even expungement after release won’t explain the multi-year hole in her resume when job hunting.

        Not excusing the system, but if rehabilitation is the goal then a different technique needs to be employed and I’m not sure that’s viable for most violent felonies.

        1. SHG Post author

          You misunderstand. The factors apply to the extent they apply in any given case. They don’t all necessarily apply in every case.

  7. Joseph Masters

    There is an article up from CBS about a “sudden passion” defense at sentencing, which allows the first-degree conviction to revert to a second-degree conviction, sentencing range of 2-20 years:

    “Judge Tammy Kemp said Wednesday that jurors will receive written guidance on the law regarding a so-called “sudden passion defense.” According to the Texas Penal Code, if a defendant convicted of first-degree murder can prove in the punishment phase they caused the death under the “immediate influence of sudden passion arising from an adequate cause,” the offense would be reduced to a second-degree felony. If the jury accepts that Guyger’s actions were taken in the heat of the moment, it could reduce the sentencing range to two to 20 years in prison.”

    Unless CBS is completely inaccurate, it appears Judge Tammy Kemp is very inclined to impose minimum sentence on Guyger.

  8. B. McLeod

    My original analysis of the verdict was on point with this post. rejection of the defense, and then, “manslaughter” did not fit.

    Earlier today, however, I learned that the evidence that went to the jury included “racially insensitive” emails from Guyger’s past, which would have been introduced to suggest to the jury a racial animus as motive for the killing. Perhaps they accepted that as part of their conclusion. Further prior emails by Guyger are going to be offered by the prosecution at sentencing. The obvious point is to paint Guyger as a malevolent racist, who should be sentenced to life-plus-cancer for that reason alone, and all the more because she killed an unarmed black person. Although it seemed to me that this killing resulted from Guyger’s negligent mistakes, I am not on the jury, and they may have believed she set up the entire thing to kill a black person. I think this thing is unpredictable at this point, and she could get the max.

      1. B. McLeod

        My bad. I was out of pocket most of the day, after listening to the talking heads on the morning news. Ten years seems like a fair sentence, but I doubt she makes it to the end of it in the Texas system, where racial gang violence is rampant. They should also have her on suicide watch from the first minute.

  9. Richard Kopf

    SHG,

    By now, you know, but your readers may not know, that the police officer was sentenced to 10 years in prison. According to the New York Times, the prosecutors asked for for no less than 28 years, the age of the victim.

    To the extent anyone cares what I think, here are my views:

    1. The prosecutors should go straight to hell.

    2. The sentence is not unreasonable, but the minimum sentence of five years would have been far more sensible.

    3. As for jury sentencing, there are good reasons to doubt that jurors should be accorded that responsibility.

    All the best.

    RGK

    1. Skink

      Rich–your opinions matter, and on this subject, more than any. Please expound on the reasons. I’m sure mine are incomplete.

      1. Richard Kopf

        Skink,

        I doubt that your thoughts are incomplete. That said, I will elaborate in a post on SJ (the Admiral of the Fleet permitting) perhaps over the weekend.

        All the best.

        Rich

    2. B. McLeod

      I have no respect for this prosecutor who was essentially a panderer to the mob.

      The jury, and the member of the victim’s family who publicly embraced and forgave the defendant, have no idea what is going to happen to her now.

      I regret to say that I do not believe she will survive this sentence, although, in the abstract, It was not an unjust sentence for her crime.

    3. DaveL

      the prosecutors asked for for no less than 28 years, the age of the victim.

      What a truly bizarre rationale. Did they mean to suggest she ought to have murdered him in kindergarten instead?

    4. John Barleycorn

      To the extent anyone cares what I think, here are my views:

      Judges wearing flip flops in open court handing out hugs and bibles to the convicted immediately after sentencing shouldn’t be a thing. Not even in Texas.

      Most officers of the court are assholes and that includes CDL’s, especially CDL’s that expose their clients to unnecessary risks at the hands of prosecutors who by law can do no wrong even when they are wrong.

      And a finial triple Fuck Y’all to “scared” people with guns who shoot first, especially when retreating is an option.

  10. RPalek

    SHG,

    At 13:33 of this Guyger Jurors speak interview:
    https://www.youtube.com/watch?v=CYcfKor-5yI
    jurors talk about accepting “mistake of fact.” “But, the prosecution did not prove she did not reasonably believe that she was in her own apartment.” At 14:25, Interviewer: “When she said I thought it was my apartment, I thought he was an intruder. So, I shot him. Did you believe her?” Jurors: “Yes.”

    So, the jurors accepted “mistake of fact,” then convicted Amber of murder anyways taking away her right to that defense. Can this be brought up in an appeal? What repercussions are there from the jury not following the law in making their decision, if any?

    1. SHG Post author

      Jurors are often weird that way. Be careful about believing them too much, as they don’t always understand what they say or say what they mean. And sometimes, they don’t really tell the truth about deliberations.

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