Late yesterday, the father and son duo were arrested and charged with murder and aggravated assault. I assume those charges came from the grand jury. I'm not sure either one of those charges will prevail in court. Let me explain why.
Yesterday I went to lengths to explain why murder charges are highly unlikely to stick in this situation because of the requirement that the state prove criminal intent on the part of the defendant. Simply showing that someone was shot does not prove criminal intent (this is a common statement I've been seeing in critique of yesterday's post). If simply shooting a person, armed or not, was enough to satisfy criminal intent then the police officer that shot Sean Bell would be in jail today. The Sean Bell case is instructive here.
In that case, the officer emptied his clip into Bell's car,
reloaded and emptied a second clip. When I saw that evidence I was certain that cop was going down for murder. Nope. One claim ended the murder rap: He thought he was in danger.
Once a person thinks that he is acting to either protect himself or others while doing something lawful (a point I'll return to) it is nigh impossible to convict of murder. This is specifically why I mentioned negligent homicide.
Were the father-son duo acting lawfully? A petit jury will determine this but the evidence that has been made pubic so far provides a rather substantial reasonable doubt argument.
Lets look at
GA law in regards to murder:
O.C.G.A. 16-5-1 (2010)
16-5-1. Murder; felony murder
(a) A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.
(b) Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.
(c) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.
(d) A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.
As I've repeatedly said in these cases, you MUST prove intent. In the case of felony murder (item c) there must be another ongoing felony. If the state is going to try that, what felony are they going to charge the father and son with? Did you see a kidnap charge? You think the aggravated assault charge will be it? I'll address that later. Lets look at what the defense will likely argue in terms of defeating an intent argument:
First we have a call to police about seeing someone on property and a possible burglary. Secondly we have police reports that someone "fitting the description" being caught on security cams. Thirdly, in those police calls we have the shooter saying that the person they saw was running or at least leaving the scene. Why is this important?
GA aggravated assault law
This may be used to establish the mindset that the shooter thought he was intervening in an attempted felony or suspected felon. This is a requirement of the GA citizen's arrest law. That he and his father brought their guns is inconsequential since they are legally entitled to do so.
So in order for the state to get a conviction on murder it will have to convince the jury that these pieces of evidence shows criminal intent. Good luck with that. And do address another critique, this isn't me "siding with a lynch mob". This is explaining what is
required under US law to prosecute a person in a court of law. I'm done being disappointed in legal outcomes because I failed to understand the process. If YOU want to be left wailing and gnashing your teeth when the "not guilty" verdicts come down due to incorrect charging and/or incompetent prosecution, you do that. I'm off that boat.
Back to the murder charge. If the murder charge is going to be based on the shooting at the time of the struggle, then again, the proof of criminal intent has to be made. If the shooter testifies that he believed his assailant had already committed a crime and was willing to do whatever to "get away with it" then he has a strong 'self-defense argument" under Ga law. In addition his defense attorney may argue that if the intent was to kill Ahmaud why didn't they shoot at him the two other times they encountered him prior to the last fatal time?
Why didn't the father, who was in the bed of the truck not take a shot at him when Ahmaud circled the truck? There was ample opportunity to kill Ahmaud if that was their
intent.
The defense attorney will argue that if in fact the shooter intended to kill Ahmaud, why didn't he shoot at him as soon as he appeared after rounding the truck? Any competent gun self-defender knows not to let his target close distance on him. He had a clear dead on shot. Why didn't he take it then? Why did he wait until the struggle with the gun to fire? Hell can anyone in the jury be absolutely sure that the two shots weren't accidental trigger pulls caused by the struggle? If they are then there is no basis for mens-rea and therefore no basis for a murder conviction.
These are all questions that are going to get put before the jury. If even one of them has reasonable doubt, the murder charge is done with. And for those who don't understand, reasonable doubt isn't the 51% from civil cases. No. Reasonable doubt can be that 1% edge case that make absolute sense and is supported by evidence or logic. This is why someone who is framed, and everything looks "right" can be found not guilty.
What about the aggravated assault charge? Here's
GA's aggravated assault law:
(a) A person commits the offense of aggravated assault when he or she assaults:
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury;
(3) With any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation; or
(4) A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.
My thinking is that the state is using the aggravated assault charge as an additional charge, given the "with intent to murder" language. If the state wants to use this charge to justify a "type c" murder charge then they would be using a circular argument. The assault charge requires intent to murder but we can't prove the murder without the assault charge which requires intent to murder...and on and on.
Now here's
GA involuntary manslaughter law:
O.C.G.A. 16-5-3 (2010)
16-5-3. Involuntary manslaughter
(a) A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A person who commits the offense of involuntary manslaughter in the commission of an unlawful act, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.
(b) A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. A person who commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner, upon conviction thereof, shall be punished as for a misdemeanor.
The evidence we know of right now clearly supports a conviction on part B above. There is no intent requirement. The state can even stipulate that the defendants were committing a lawful act (citizens arrest) while still arguing that they did so in an unlawful manner. I think part a may be satisfied by what we know today, but it is a harder argument because it would require showing that the defendants actions were unlawful. What part was unlawful? The chase? The getting out the car? The brandishing of weapons?
And if part A is hard(er) to argue then you should see why murder is an even harder task.
Remember, I'm not a lawyer and I can see the arguments that will be made. Actual lawyers who do this all day every day will have an argument 10x stronger than mine, with precedent cases to use. If you think that this is a slam dunk murder conviction based on what we know now, you are deluding yourself. Going back to Sean Bell, a cop emptied 2 clips into Bell's car and walked away because he thought he was in danger. If that can happen, you better believe that a defense lawyer can make an argument where 2 shots were fired during a struggle for a gun.
