In the last entry we discussed some elements of this controversial case. Some comments, a few here but mostly elsewhere, seem to indicate some misunderstandings about how these things work in court.
Objective Reasonableness is the standard for use of force established thirty years ago by the US Supreme Court in Graham v. Connor. It is essentially the police officer’s version of the Doctrine of the Reasonable Person which guides a private citizen’s use of force. In essence, instead of “What would a reasonable and prudent person have done, in the same situation, knowing what the defendant knew,” it’s “What would a reasonable, prudent, trained and experienced police officer have done in the same situation, knowing what the involved officer knew?”
Many felt that Officer Amber Guyger was unreasonable and imprudent in mistaking Botham Jean’s apartment for her own. It was directly above hers, but she had inadvertently wound up on the wrong floor of an apartment building with cookie cutter architecture. There was testimony that an amazingly high percentage of residents in that building had told investigators that at some time they had made the same mistake. I was surprised that the jury didn’t take from this that a resident unintentionally going to the wrong door was neither unreasonable, nor imprudent, nor culpably negligent. The gist of Guyger’s testimony was that as she entered the dimly-lit apartment she saw a large man coming toward her yelling “Hey, hey, hey” and that he did not obey her command to show her his hands, in the very brief period of time before she fired. There was some testimony as to the tunnel vision that occurs more often than not in such situations, which would have explained why she didn’t recognize that the furniture and layout were different from those in her own apartment. This supported the defense’s contention that her mistake was a reasonable one.
Many observers were outraged that the defense got a jury instruction on Castle Doctrine, which says one is not required to retreat when attacked in a place where one has a right to be. Assuming that Guyger did reasonably believe the apartment was hers and Botham Jean was an intruder coming at her, I believe Judge Tammy Kemp was correct in putting the Castle Doctrine instruction to the jury. And Castle Doctrine was a somewhat moot point, since even in states which demand retreat before resorting to deadly defensive force, retreat is not demanded unless it can be accomplished in complete safety. With Botham Jean within a second of reaching her, she could not possibly have backed up faster than he could continue moving forward; she had been disarmed (of her TASER) by a strong man a year or so before; and she entered encumbered with the police gear she was holding in one hand, which also accounts for why she described firing with one hand only.
Yes, we all know NOW that Botham Jean was an innocent man in his own home. There is no reason to believe that Guyger knew that at the time she fired the two shots. The law does not demand that the shooter’s assessment and belief be correct, only that the belief was sincere and reasonable. The shorthand version, for cop or armed citizen, is: “You don’t have to be right, you have to be REASONABLE.”
One thing I didn’t see addressed in the trial was whether, like most cops, she had other guns in her home and feared the intruder was armed with one of them if he didn’t have a weapon of his own.
Those who identified with Guyger were angry that while the Texas Ranger who led the investigation testified that he thought her actions was reasonable, as did a retired very senior commander of her police department said the same, the jury was not allowed to hear that testimony. The judge was correct in ruling it out, since only the jury can determine what was reasonable. However, the jury has a right to know what the parameters of reasonableness ARE in the matter at issue, in this case, the proper use of defensive lethal force. Had the defense simply asked those witnesses what the training standards were in that regard, as many defense lawyers have done when I was the expert witness on the stand, it has generally been allowed in and probably would have been in this case. The groundwork for that critical testimony simply wasn’t laid correctly, in my opinion.
Finally, Judge Kemp was criticized as everything from a race traitor to a violator of the separation of church and state because after it was over, she came down from the bench and hugged the defendant and gave her a Bible. I don’t have a problem with it. The verdict was already in, so that act in no way prejudiced the outcome. Judge Tammy Kemp is clearly a compassionate person, who unashamedly was seen to shed tears in the courtroom for victim and defendant alike, realizing that the incident had destroyed both their lives.
Anyone who wants to complain about a judge showing compassion, in my opinion, does not understand the meaning of the word Justice.