In Self Defense - Episode 53: The Amber Guyger Case - a podcast by Mike Darter

 

Don West and Shawn Vincent discuss the extraordinary Amber Guyger case in which an off duty police officer mistakenly enters the wrong apartments and shoots the occupant thinking he was an intruder in her own home. The case tests the absolute limits of the Castle Doctrine and serves as a warning for concealed carriers to check their assumptions when making decisions in potentially threatening situations.

 

TRANSCRIPT:

 

Shawn Vincent: Don West. How are you doing?

Don West: Hey Shawn. As always nice to talk with you.

Shawn Vincent: Yeah. So when we're recording this right now, we're about a week and a half away from my 43rd birthday.

Don West: It doesn't sound like such a big deal to me since-

Shawn Vincent: Yeah. You're a little past 43, right?

Don West: Yeah, but at the same time, I'm thinking back to those days where I was in my life and my family and my career. And you are, I guess probably about halfway through by now, don't you think?

Shawn Vincent: Yeah. I think judging by my diet, I think I'm a little over halfway through for sure.

Don West: You once described yourself as mid-life. I guess if we do the math, 86 would be a pretty good life. I think if I make 86, I probably [crosstalk 00:01:17].

Shawn Vincent: You can say you did it. When I met you, I was nice mid 30s. I think at 43 should become mid 40s. I'm early forties now. One more year. I'm mid 40. Someone the other day told me that I looked spry today, which I think is-

Don West: Well, that drips with something, doesn't it?

Shawn Vincent: No one ever tells someone in middle school, "You’re looking spry." That doesn't happen so.

Don West: Well. I once heard a lawyer talk about other lawyers in terms of experience, whether if they had 20 years experience, they had 20 years experience or whether they had one year of experience repeated 20 times.

Shawn Vincent: Sure. I like that.

Don West: I have to think, knowing you, as long as I've known you, that you have continued to build on that life experience and provided a positive and grateful environment for your children and developed a nice little niche career where you're doing good things for people in bad situations. And from my perspective it looks like it's all coming together.

Shawn Vincent: Well, I like that a hell of a lot better than I like spry, so thanks for that. Well, can we say seasoned? Let's go with seasoned.

Don West: Yeah, I'll go with seasoned. I think that's euphemistic enough.

Shawn Vincent: Perfect. Well, hey, we have a case that I've been dying to talk to you about and it happened out where you've been spending some of your time in the Dallas-Fort Worth area.

Don West: Yeah, that's right. It was all the news for quite a while. It's the almost infamous case of Amber Guyger, the police officer who shot and killed a young man by the name of Botham Jean.

Shawn Vincent: Sure. She was an off-duty police officer, right?

Don West: She was. This day that this happened, I believe around August, September of 2018, I think it was just about a year before the trial. And not only was she off-duty, but she had worked I think a double that day. At the time she went home at the end of her shifts, she was in full uniform, equipment belt and all of that stuff.

Shawn Vincent: Right.

Don West: Going home after a long day.

Shawn Vincent: Right. So she lived on the fourth floor of this apartment building and it's got an attached parking garage. And Botham John, he lived in the same apartment that she lived in one floor up. So-

Don West: Yeah, I think that's right. It doesn't matter which floor exactly but that's exactly what happened. She went to the wrong floor thinking she was going to her apartment.

Shawn Vincent: I've been in parking garages where unless there's the big number written on the wall in the right spot, you don't necessarily know what level you're on. They all look about the same floor to floor and I've been in a hotel where you get off on the wrong floor and it takes a little bit before you realize that you're not in the right spot. So I can imagine an apartment building where if it came in from the garage on floor five, it looks a lot like it does on floor four.

Don West: Oh, sure. I think everyone's probably had that experience. I have a tendency to do that with cars. Walk up to the wrong car, especially if it's a rental car. I wind up being distracted because of whatever it was that took me there and walk up right to the car sometimes lift the handle to get in, only to realize that I'm off a row or two. And I just, without thinking walked up to somebody else's car and from their perspective, especially if they had been sitting inside, would have thought I was trying to break in the car.

Shawn Vincent: Yeah. And I rent cars enough to where sometimes I've literally forgotten what car I rented and if it weren't for the little fob that will click to make it blink, I'd have no idea what car to get into. So we've all made mistakes concerning orientation. Where you are and being confused about that. And in this case, Amber Guyger came in the wrong floor, she goes to the wrong apartment. It's the one above where she lives. It's in the right spot it's just one floor up too far. She doesn't notice that the floor mat out front is different. There's something wrong with Botham Jean's door to where it didn't clasp properly. So she was able to open it without a key.

Don West: Yeah. I think the way these doors worked... The sense of it I had was it was a magnetic key like a hotel room key.

Shawn Vincent: Okay.

Don West: In fact people testified in the trial that the doors didn't always close completely. So it was entirely possible that from the inside you'd think your door was closed but unless you pushed it that last half inch, it would be sitting there slightly ajar. And from the outside, I don't know if there was a light or what might tell you like there is hotel rooms, but in fact in this case there was testimony that she knew that the door was unlocked. So it wasn't that she was able to get in the wrong door using her key it was that the door wasn't latched completely so that effectively it could just be pushed open. So that was one of the facts that the prosecutor used in the case to explain why she should have known something was up, or at least that she was in the wrong place because of that. The floor mat you're talking about became significant in that it was symbolic. It was bright red. So people attending the trial that were sympathetic to Botham Jean wore bright red clothing and other paraphernalia and such to indicate their support and also to reinforce the idea that in their mind it was a ridiculous claim that she didn't know she was in the wrong place because she didn't have a bright red door mat, and he did, and she was standing right there on it and crossed it when she went in the apartment.

Shawn Vincent: Right. So she goes in the apartment and, if we believe her, she thinks she's walking into her apartment, and there's this guy there. From the accounts that I read he was apparently eating ice cream and watching football but she doesn't necessarily see it that way.

Don West: I don't know exactly what she said she thought was going on other than she was convinced she was entering her own apartment and she never wavered from that. And I think that ultimately that was accepted, that she had made a mistake and that she had gone into his apartment fully believing that she was going into her own. After that, it becomes pretty confusing because the layout in terms of furniture isn't the same. I'm assuming that she would have known whether she left the TV on or not when she went to work that day. I think a lot of people said, "Why would she go in, even if it's her own apartment, if the door isn't latched, doesn't that tell anyone much less a trained police officer that there's something different?"

Shawn Vincent: Something's wrong here.

Don West: Yeah. And of course the idea that being a trained police officer and having her equipment and tools of the trade, including weapons and such, but having the tactical training and experience in these encounters on the street, why would she make the decision to go in at all rather than recognizing something was amiss but not even knowing what it was, assuming it was her own apartment why wouldn't she call for backup? Why wouldn't she maintain her position of relative safety until she had some people with her that could figure it all out.

Shawn Vincent: Because instead what happens is Botham Jean gets up and comes towards her, right? She testifies that she was giving voice commands, "Put your hands up, what are you doing here?" That sort of thing.

Don West: Yeah. And it's obviously impossible to know whether he was confused or could even hear her, but her testimony was that he came in her direction and from her perspective, he wasn't obeying her commands.

Shawn Vincent: Right.

Don West: And of course the distance closed rapidly. He must've been incredibly confused and wondering who that person was and of course why were they in his apartment and what was their intention. Whether he perceived it as a threat, who knows?

Shawn Vincent: Yeah, we'll never know.

Don West: There had been a neighbor over there earlier and maybe the door was even left open on purpose. I don't know any of that stuff, but it must've been incredibly confusing for him. And now we're looking at his perception and how that affects his behavior and then how his behavior affects the perception of Amber Guyger and then of course her response, which tragically was to point her gun at him and fire twice. One I think missed, but the other penetrated his chest, I think pierced his heart and an immediately-

Shawn Vincent: And then that's it.

Don West: Mortal wound.

Shawn Vincent: Right. Then what happens immediately afterwards becomes a point at trial as well. There's video of her freaking out while there's first responders there, there was some hay made that she never seemed to try to render any aid to the guy that she had just shot. She obviously quickly realized that she was in the wrong apartment and that this was a horrific mistake.

Don West: Well that's an interesting observation because that has nothing to do with the lawfulness of her act of shooting him. We'll talk about how all of that plays out. Whether or not she immediately rendered aid has to do, I think with the way the prosecutor could paint her maybe as being callous or uncaring about what she had done combined with some of the things she said on the call about losing her job and all that stuff seemed to suggest she was more worried about herself than she was-

Shawn Vincent: Sure. Well, often-

Don West: Than the guy that she shot.

Shawn Vincent: Often a second degree murder charge -- especially in Florida where we've worked on some cases together -- the second-degree murder charge implies a reckless disregard for human life and if there's any chance to provide aid to resuscitate somebody and you don't do that, that helps paint a picture of someone who has disregard for that life.

Don West: We've come across a couple of cases where the prosecutor exploited the idea that no aid was rendered and tried to impute some meaning to that.

Shawn Vincent: Sure.

Don West: And-

Shawn Vincent: We just talked about the Drejka case and instead of trying to help the guy or express concern for him, he was wandering around letting people coming up at the store, letting them know he had just shot somebody. A weird reaction that was.

Don West: We know being involved in something like that may make you act in a different way than you would even if you were thinking it through. But certainly the perception others have of you becomes pretty important and frankly, I've seen cases where the response to the shooting was so immediate and so positive in an attempt to get aid that the prosecutor commented on that in making their charging decision, that they thought that the person did everything right afterwards and it impressed them about the way they viewed the case

Shawn Vincent: We talked about Zach Peters and he didn't necessarily render aid but indicated on this 911 call that they were still alive and that you better get here quick. The implication being that he had some concern for whether or not they'd be able to survive that episode.

Don West: Our advice has been, even though it may be the last thing you want to do to help the person that you firmly believe just tried to kill you but for your use of deadly force would have been dead, the last thing you want to do is reach out and try to provide medical assistance. But we have specific examples we can talk about plus the idea of being able to show that your conduct was not rooted in anger and malice but rather was a response to the threat and that once the threat is over, you will, as any human being should try to mitigate the situation.

Shawn Vincent: Right. Because the point-

Don West: Your goal is not to kill the person. Your goal is to neutralize the threat. Stop the threat.

Shawn Vincent: That's right. And that should be the attitude from the beginning to the end. And all the actions that you take should indicate that respect for life. Otherwise-

Don West: In a case that we're talking about like that when the prosecutor is looking for any opportunity to look for evidence that will support their theory. Now their theory could be any number of things but in this case the theory was that what she did was not reasonable and that even though the law may have favored her, notwithstanding the fact that she made a mistake, her conduct should be viewed by the jury as being unreasonable and then set about explaining why and how at different points in time throughout the entire scenario and the fact that she seemed more focused on herself and the fact that she would lose her job than trying to render immediate aid was just one thing that piled on a lot of other things that happened long before the trigger was pulled.

Shawn Vincent: That's the cherry on top of the pie here, the meat is this whole thing that... And we've never encountered a case like this where someone... She essentially broke into someone else's house and then shot them and is claiming self-defense. It wasn't breaking and entering, but she went in uninvited to somebody's house and shot them in their living room and then makes a self-defense claim. That sounds crazy.

Don West: It does sound crazy in the sense that most people that don't truly understand self-defense law and what it is that become the critical turning points in a self-defense case would think that all you really needed to know was that she went into the wrong house and shot an otherwise law-abiding citizen and that nothing else really matters. Well, in fact, that's not the case. That notwithstanding some of the things that we'll talk about that help shed some light on whether her actions ultimately were reasonable. Legally, you are allowed to make mistakes. It's really the perception of the threat more than the actual threat that becomes the critical issue.

Shawn Vincent: Right. So if the jury-

Don West: So the fact-

Shawn Vincent: If the jury really believes that you've made that mistake in perception, then they're supposed to accept that as the reality or the perceived reality. And then under that set of realities then decide whether it was reasonable. So under your misperception, was your action reasonable? Even if you're wrong about that first assumption.

Don West: That's exactly right. The threat doesn't... And the jury instructions say this, the threat doesn't have to be actual, it's the perception of the threat. So the prosecutor had to go much further than just showing the jury that in fact she had made a mistake, they had to show that the way this thing played out, her mistake was unreasonable and that there were lots of places along the way where she should have realized her mistake and you put all that stuff together overall the actions were unreasonable. And once the-

Shawn Vincent: So let me-

Don West: Go ahead.

Shawn Vincent: Let me ask you about that. So if we're going to operate with the assumption that she thought it was her house and that the jury has to, if they believe that's true, judge her based on that, then let's make a more controversial scenario. You come home from a double shift, you're distracted, you're tired, it's dark, you walk in your front door and then there's a stranger there who gets up and starts moving towards you. You're a concealed carrier, you're in your own home, someone's obviously entered without your permission, are you justified in shooting them then?

Don West: It may take a few more facts but the general sense is yes. Especially if you know there's no way they got in there by consent.

Shawn Vincent: It's not potentially like a friend of your son's or it's not the bug guy.

Don West: Well, I can tell you there are lots of cases. Tragic cases. You'll read about them regularly if you just pay attention -- about people being home asleep, hearing a noise, getting out of bed, taking a gun into the living room or to the kitchen and finding somebody and shooting that person dead, only to realize after the fact that it was a kid coming home from college or a relative that came into the house. So they were clearly no actual threat, but the fact that they entered, from your perspective without consent, essentially a breaking and entering idea, especially in your home, there are presumptions that if somebody enters the house without permission, there's a presumption that they're there and a threat.

Shawn Vincent: Right. So she's got that on her side.

Don West: The law is on her side, even if she's making a mistake. And I think that was somewhat controversial in this case because I think the judge ultimately agreed that she was entitled to the Castle Doctrine defense, even though she wasn't in her own apartment and obviously she was the in the wrong spot. So that was controversial and I think a lot of people were afraid the jury might use that as a technicality of some sort and acquit her, notwithstanding the clear indication that she was making a big mistake about the whole thing from beginning to end.

Shawn Vincent: Right. So if the Castle Doctrine could have or should have applied to her in that case, then now I want to connect the dots about how she gets a guilty verdict because she was found guilty of murder in that case from shooting an intruder in her, quote on quote, her house. What she perceived to be her house. So one thing I look at is even though the law often allows you to assume that someone who is in your house uninvited is a threat, whether or not they actually are a threat from a perception point of view, still makes a difference. And we've talked recently about the idea... We were talking about Marissa Alexander. She left a confrontation in her house and went into her garage. She was not followed but she got a gun and then she went back into her house and re-engaged and that was a problem in her case. So if you walk in your front door and you have the option of turning around and leaving or going further into your house and confronting somebody who's there uninvited, does that change the scenario when you're looking at the Castle Doctrine and the duty to retreat that's waived by the Castle Doctrine?

Don West: Well, I think the focus shifts that notwithstanding the legal right to take certain steps that the law would protect because of the Castle Doctrine, no legal duty to retreat. And in many jurisdictions, the presumption that someone who has entered the home uninvited is a threat and that your fear would be reasonable, that's not the end of the inquiry. And in this case, the prosecution focused on all of the little things that in combination and when put together the so-called totality of the circumstances test that we've talked about before, whether overall her actions were reasonable. And you can break that down into mistakes of fact and maybe mistakes that shouldn't have been made and why she didn't know where she was. Then you talk about the tactics or the strategy of the decision making and why she did what she did under those circumstances. And when you start stacking that one-on-one on top of it and then you compound that of course by the fact that she was wrong, that she shot an innocent person, I think the jury had a different perspective than you would have had it been in your own home where you made an innocent but tragic mistake shooting somebody that wasn't in fact there to harm you like a relative or a drunk neighbor that wandered in.

Shawn Vincent: Sure. And you've coined the term forgivable subjectivity for situations like this. When it's your home or you're perceived to be in your home, or if you have the protection of the Castle Doctrine, the law affords you a few mistakes, even if you don't do everything perfect. There's this forgivable subjectivity. There were the deciders of fact can lean in your favor pretty easily, but I think the fact that it wasn't her house, even if legally the standard is Castle Doctrine applies, she's lost a whole bunch of that forgivable subjectivity, right? She's got a long road to claw back at and then you throw in the fact that he was unarmed, that she had an opportunity to just walk back out the door that she had just come in, the fact that she didn't attempt to render any raid after-the-fact; those are little things that push this forgivable subjectivity back to the point of no return.

Don West: Yeah. Let's talk a little bit about some of the specifics that formed the basis of the prosecution argument that made her, in their view, the conduct unreasonable, which meant that she really shouldn't be given the benefit of the doubt. I think that's what we're talking about.

Shawn Vincent: Right.

Don West: To some degree the forgivable subjectivity notion is that if you do most things right and you do them in good faith and you do them consistent with the law, even if you are wrong about some things you'll get the benefit of that, especially if it's in your own home. So setting the stage just a little bit more, I think we had talked earlier that she had worked a double shift, that she was in uniform, she was coming home, there was a different color mat in front of her door. It's certainly and I guess a different apartment number, but it's certainly explainable. I'm satisfied that you could miss that stuff but-

Shawn Vincent: I don't even know what our door mat looks like.

Don West: Sure.

Shawn Vincent: Don't tell my wife, but-

Don West: But then the door is unlatched. So that should've been a real big clue. And I would think someone would want to look around a little bit more than not necessarily even thinking you're in the wrong place but looking for what else might be out of the ordinary or amiss.

Shawn Vincent: So you come home and your door is open, you're going to look around like, "What's going on here?" You're going to be extra perceptive is what you're saying.

Don West: I would think you'd be very vigilant at that point because now this is something that jolts you awake. Now, in your end of the day automaton response. How many times have you driven home and you certainly can't remember the route you took or those things.

Shawn Vincent: So whatever is distracting you, now you're shocked out of that and now you're in the moment because your door's open.

Don West: I would think so. I think that's a reasonable interpretation.

Shawn Vincent: Especially if you're a cop. Yeah.

Don West: So there were a couple of other things going on, too, as I remember some of the testimony and I watched quite a bit of it that first of all, she'd only been there a couple of months so she's not going to be as familiar with the layout as people that lived there a long time, but it was my understanding that she had a dog and that the dog was boarded or being kept somewhere because maintenance was supposed to come through at some point in time. I don't know if it was that day, but if you put your dog up, you would know two things. One, you would know your dog wasn't there, so the dog wasn't at any risk if that's what you were concerned about. And then the fact that you boarded the dog because maintenance was going to have to do some stuff, then you would maybe not be quite as surprised that the door was unlocked or open, but you would react to that, I would think.

Shawn Vincent: Sure.

Don West: Rather than think. So that would have been another opportunity to think that maybe if somebody is inside, they're specifically there to do harm or even to steal things. And the idea that... Well let me characterize it this way. She is trained and prepared to deal with threats and violence. At the same time she's also prepared and trained how to not do that without incurring greater risk and you call for backup. If you're in a situation that's not urgent, that you don't have to take immediate action and you don't know what's going on or how big the risk or the threat is, you call for help. So the prosecutor really harped on that. Why not just call for backup? The police station was only a few blocks away. You stay outside where you're safe, you call for people and then you go in and deal with it. So while it wasn't specifically said, what struck me about that is why would you go in there when there's nothing really to protect? It's just your stuff, there's no people in there, whoever it is that's in there is not there specifically to attack you because you're on the outside. So why specifically go inside knowing you have to confront whatever it is rather than just waiting outside and-

Shawn Vincent: You're going from a place of relative safety to uncertain danger.

Don West: Yeah. And how many times have we seen that? So she goes inside with the expectation of confronting whoever it is and she may not have known or even really suspected that it was an intruder at that point. I don't know what she really thought that wasn't clear, but she did make the decision to go on in. And I think the prosecutor pretty reasonably said how unreasonable that decision was.

Shawn Vincent: We've talked over and over again in these cases that the decision to pull the trigger by definition has to be imminent fear, right? And if it's imminent, there's no time to think twice about that decision. It has to be done right now. Imminent means right now, you told me once, right? So we have this conversation that we've had a few times about the choice before the choice and almost all the cases we've found there's been escalation and the shooter makes some choices before that critical moment where they pull the trigger where they could have gone a different way. And in Guyger's case, that's clearly her decision to continue into the apartment after she knew that something was wrong. That was where she really had the most discretion to change how the scenario went.

Don West: Yes, exactly right. So she would then, by making the decision to go in and confront whatever it was that was inside, cross that line where she had to do it. Now I'm not saying she had to shoot somebody but once she made that decision to go inside, she had basically decided she will handle whatever it is.

Shawn Vincent: Yeah.

Don West: And when she didn't really have to do that, she had lots of other options there.

Shawn Vincent: So that decision was unreasonable from the deciders of fact point of view.

Don West: I think so. You couple it with all of the other little things where the prosecutor reinforced the notion that she should have known she wasn't in her place. There are too many things going on for her not to have realized it. If she hadn't been distracted with text messaging, if she hadn't been tired,  perhaps -- but nonetheless the prosecutor exploited everything that they could to show that she wasn't focusing, that she was distracted, that she really wasn't paying attention, that any reasonable person would have given these situations. And then I suppose from my perspective, the decision to go in and confront is a one-way street at that point. You go in and you have to deal with it. Now, I think what's interesting maybe for our listeners is we have, excuse me, no doubt lots of listeners that if they hear a noise in their backyard are going to get their gun and go out and figure out what it is. And just like when Amber Guyger went into what she believed be her apartment with her gun, with the expectation that she would confront whatever it was that was inside, she wasn't breaking any law. She was completely allowed to do that as a citizen and certainly as an off-duty police officer. So it's not that she made a critical illegal decision. She simply made, I think in hindsight, what was a critically bad decision. A decision that she didn't have to make that had the risk of increasing her own danger but more or less, as we've talked about before, when you talk about the choice before the choice, you make the choice that forces your hand and you hope it's going to turn out okay, you hope that you're going to come up on the winning side of it but nonetheless, you make a choice that forces a hard choice. And in this case how much more wrong could it have gone? Her life is effectively ruined, Botham Jean is dead, a promising, universally loved young man, a young professional who had a loving family and peers, it's just-

Shawn Vincent: Just the ultimate tragedy.

Don West: Yep, sure is.

Shawn Vincent: So there were other things that we got brought up in trial that yeah, if we're going to push this forgivable subjectivity, the prosecutor tried to make her look like a bad person. They tried to make her look like a racist. She was white, Botham Jean was black.

Don West: I think that the prosecutor, knowing how delicate a balance all of this is in terms of the jury's perception of what happened, were taking the opportunities that they had to exploit the weaknesses in the character, weaknesses in the history, in the background, taking events in Ms. Guyger's life and, rightfully or wrongfully, I don't know enough about it to suggest that there was any real evidentiary value to this other than what seemed to be a pretty clear attempt to dirty her up. I don't think anybody could credibly claim that race played a part in this, even though the media focus was oftentimes race-based and only because another unarmed black man is killed at the hands of a police officer. So that's a narrative which percolates throughout the news these days.

Shawn Vincent: That definitely grabs national headlines.

Don West: Yeah. It's a round peg, square hole scenario. I don't know anybody would truly suggest race played a part of it, but it was an aspect of this that was exploited by the lawyers on behalf of the family and certainly the prosecutor appreciated whatever value some inference of that might have and took full advantage of it to the extent they could. Whatever lesson there is, there only is what we've said on and on and that is that whatever you have out there in your past, whether it's social media, or text messages, or off-color jokes that are offensive, can and -- if there's any way for it to come back to haunt you -- it will. By all accounts, Amber Guyger was a decent person who had done a good job as a police officer, who had done good works in the community, was well-liked and well-respected but through this sequence of poor judgment, bad decisions, maybe being a little bit too gung-ho, dealing with whatever it was on her own, instead of getting the backup, set the stage for this tragedy.

Shawn Vincent: Yeah. So she was convicted of murder, right? One of the options that the jury had along with acquittal would've been manslaughter. Were you surprised when you heard the murder conviction?

Don West: I was a little surprised. Well, there was one other aspect about this case that the prosecution took full advantage of. And when I say taking full advantage of something, I'm not suggesting it's unethical or somehow even inappropriate, although I think there's some arguments to be made that the prosecutor is always supposed to take the high road and that their goal is serving justice not just getting a conviction, but I can tell you after many trials and lots of years of doing this, it's an adversarial process. There are egos on the line, everybody wants to win and if you see a chance, unless there's a clear prohibition against it, you're going to take it with a prosecutor or a defense lawyer. And they saw a chance and they took full advantage of it when during examination, Amber Guyger was asked about what was happening at the time that she shot Botham Jean. As we mentioned before, there were two shots, one that missed, one that went through his chest. And I believe it was cross-examination the prosecutor asked whether she was trying to kill him. And I believe she was nervous, being on the stand, no matter how seasoned you are is an imposing, intimidating thing and it's pretty easy to get rattled.

Shawn Vincent: Yeah.

Don West: So my guess is her answer was more a product of that than in fact what she was thinking but it might've been regardless when she was asked whether she was trying to kill him, she said yes. So the prosecutor had that little nugget when they wanted to argue about her state of mind and what she was really doing all along that she was there trying to kill him and shot him through the heart.

Shawn Vincent: The right answer is she was trying to eliminate the immediate threat. That's the legal answer.

Don West: Well, that's the true answer, I hope because that's the answer that her training would have been. There's no police department that I've ever heard of including a recent tour of an NYPD training facility where the officers are taught to kill in the face of a threat. Certainly death may be a consequence and it may be the only consequence if you truly have to incapacitate somebody, but it's never the goal. And the goal is exactly as you said, is to stop the threat. To neutralize the threat. And I think a lot of times these fatal wounds aren't by design. No reason to think that she was shooting Botham Jean in the heart for the purpose of killing him. The training would be to shoot in the larger mass of the torso and unfortunately that's where the heart and other vital organs are that often result in death but also fortunately, if you have to stop the threat and incapacitate someone, that's a pretty good place to hit him other than shooting somebody in the head, which from a training perspective is pretty hard to do. I don't claim to understand that fully but you shoot where you think you can hit somebody that's the threat and then you go from there.

Shawn Vincent: Well, it's like the Sundance Kid says, aim for the middle and that way, in case you miss, you still hit something,

Don West: So when she said, “I intended to kill him,” I think she misspoke. That was something that was one of those oh, oh, moments because it resonated in such an ugly way in the case. But I really questioned whether that was simply more misspeaking than that was, in fact, her intention.

Shawn Vincent: But if you're a juror and you have to decide between murder and manslaughter, “I meant to kill him” is a tough obstacle to overcome.

Don West: Hard for me to imagine. She had good lawyers, experienced lawyers. It's hard for me to imagine that they wouldn't have been through that with her in some way in the pre-trial preparation. But I don't know what statements she may have made before that she got locked in on something like that. But it came as a surprise to me. I think it probably came as a surprise to everybody that she answered that way and I think that was simply unfortunate. It doesn't really change anything except the observation you just now had.

Shawn Vincent: Sure. But then you take a step further, now you have the guilty verdict and you talk about in Texas it's relatively unusual where that same jury gets to come up with the sentencing. And in this case for the murder conviction, it could've been anywhere between five and 99 years. I understand. And they chose-

Don West: Yeah. Unusual in the sense that it doesn't happen very many places outside of Texas. Yes. It's common in Texas, that's how they do things.

Shawn Vincent: Sure. In Florida, the judge is going to give you the sentence and-

Don West: Exactly right.

Shawn Vincent: And this jury, the same jury that convicted her of murder, went way low on that sentencing range. They gave her 10 years.

Don West: Well, the trial and the sentencing are two distinct phases with different rules and different objectives. Of course it becomes pretty clear in a place like Texas, where the jury is actively involved in the sentencing, where there's actually a separate evidentiary proceeding. Typically in other jurisdictions, the jury will decide guilt or innocence and then there'll be a separate hearing but only with the judge or they hear additional evidence and aggravation to support a higher sentence based upon perhaps the background and character prior record, those things that would influence a judge and sentencing guidelines, calculations, that stuff. And much is the same in Texas but with the jury, witnesses testify, It's a much more formal process and then the jury retires to deliberate again and come up with a sentencing.

Shawn Vincent: So what does it mean to hear that they come up with this 10 years instead of 99 years --  instead of 20 years?

Don West: A sentencing hearing from a defendant's perspective is going to focus largely on mitigation. That's really the first time in most cases where the jury or the judge, depending on who the sentencer is, gets to hear about the person. There may be some stuff in the trial itself that comes out but how the person conducted themselves in the past, who their friends were, character references, employers, friends, that stuff is highly relevant. We have in the United States individualized sentencing. So there's virtually, unless it's a mandatory minimum, which I think is why there's so much condemnation of these mandatory minimum sentences and especially the high ones and for certain crimes is it takes the individuality away from the person being sentenced and also removes the discretion of the judge.

Shawn Vincent: Sure. Every crime's committed within a very specific context and that context matters when it comes to punishment.

Don West: And I think this case showed that dramatically, too. And while the jury sent a clear message that what she did was a crime and a serious crime, that there is value to her life, that as a public servant, as a police officer there's value to that. I think that... Of course, I don't know what they said in the jury room, but they obviously took it very seriously and after making a tough decision on guilt and innocence probably made even a tougher decision on sentencing because they had to decide basically whether to lock her up for the rest of her life or give her a chance at life.

Shawn Vincent: Sure. Because she's a young woman, in 10 years, she still has life to live.

Don West: Shawn, it's interesting about this case now that we've talked about the charge. If I'm not mistaken, she was first charged with manslaughter and then the case was taken to the grand jury. By charge I think probably the prosecutor's office was able to make that charge taken to the grand jury and the grand jury upped it to murder.

Shawn Vincent: Okay.

Don West: So then the trial jury instead of reducing it to manslaughter, as many thought it would if there was a conviction actually maintained the main charge, the murder charge . . .

Shawn Vincent: But gave her a more “manslaughter” sentence for it.

Don West: Yeah. As I understand it, a 10 year sentence, the one that she got there's going to be parole eligibility in about five years. It may not result in parole but I think that would be the earliest possible date that she could be released. The next five years are going to be pretty tough for her, not to focus so much on her as opposed to the suffering of Botham Jean's family and the tragic loss of his life. That's what's interesting about murder cases though, is that every murder case starts with someone that's been killed in some way. The starting point, not the ending point so it's really moving past that to how the system works with the focus on the accused. So the victim doesn't get lost along the way but from a jurisprudence standpoint, it's not about the victim.

Shawn Vincent: So that's definitely just one of the remarkable parts of this case. And that is when the family of Botham Jean had an opportunity to give an impact statement, Botham's brother basically said he forgave Amber and didn't wish her any ill will and in fact asked the judge for permission to give her a hug. And there was a very dramatic moment where she goes and embraces him and she's in tears.

Don West: I think that was so extraordinary in the normal course of affairs that everybody did a double take when he made that request and the judge hesitated. The knee jerk-reaction would be to say, "No, that's not permitted." And say, "Well, for security reasons or what have you." But this judge was very contemplative and very humanistic at the end especially. And she said yes. And Mr. Jean's brother got off the stand and walked toward counsel table where Ms. Guyger was seated and she stood up and they met in the middle of the courtroom and hugged. It was incredibly powerful and caught me completely by surprise. I hadn't seen such a thing.

Shawn Vincent: I can’t pretend to think that this is actually true or know it in any way, but I got the impression that after this was all done and she got her sentence that she was ready to serve it. I felt that she was genuinely devastated and truly remorseful for what happened and you could see the pain of it on her face. And I think having the opportunity to pay for it, but still have a life afterwards was a good result for her.

Don West: There may very well have been some relief. You're not allowed to show that thing during the process. The process is very rigid and formal and obviously adversarial as we've talked about. Can you imagine the uncertainty of not knowing whether you would receive a sentence that would allow you to have some life left or whether you would effectively be serving the rest of your life in prison. And she certainly has a sense of fairness and justice. She was a cop for a long time and she certainly wouldn't welcome spending 10 years in prison but I have to think knowing how badly she knows that she screwed up that she has to understand there's a sense of fairness in all of that.

Shawn Vincent: I think that's right.

Don West: Some of the evidence in sentencing was presented in court to the jury and then the jury went back to deliberate on the sentence and then there was an additional opportunity for family members or others, I suppose to speak more directly to the defendant. So there was a separate proceeding where family members, while they were in court and they were on the stand, the judge was in the courtroom, they were really talking more to Ms. Guyger. And that was the moment that Botham Jean's brother Brandt talked about forgiveness and the hug and that was outside the presence of the jury. So notwithstanding that the jury still gave-

Shawn Vincent: Still went easy on her essentially. Well, we talked about looking for the lessons for concealed carriers so that they don't repeat those lessons. And in this case, I think the real takeaway for me is what we talk a little bit about at the beginning -- is just that very often in a stressful situation your perceptions about what's going on can be wrong. In this case, it's extraordinary unusual that she mistook someone else's home for her home. But what's not as uncommon is for someone to mistake an intruder for the wrong person. If someone that they know or someone who belongs there as an intruder or even more commonly to mistake someone who's unarmed for someone who's armed, right? We saw Drejka mistake someone who's intoxicated for someone who's making rational decisions. To me this just as a case that really underscores that when you get into these difficult decisions that you might not be right about your understanding of all the details. And while that doesn't necessarily matter if you're facing that imminent threat of death or great bodily harm, it should inform all those choices before the choice that you make. And sometimes we always emphasize avoiding the situation if you can at all, even if that means sometimes the bad guy gets away. But that's all in the service of making sure that you don't make mistakes that could cost you your freedom and the rest of your life.

Don West: That's exactly on point. And it makes my mind start to turn again about this case. What was she thinking? Could she possibly have been going in to protect her stuff? Texas is one of the few States in the country that allows deadly force in some scenarios to protect property. I hope that's not what she was thinking. I hope she knew better than that just because legally you might be allowed to do something does not in any way make it a smart choice and certainly not a reasonable choice depending on the other circumstances. Did she not know that there was nothing that person could do inside that place that mattered a lot? The only thing that mattered was her safe. And of course what you're saying, wasn't there enough that was going on that seemed out of order that would have caused someone to just take a second and reflect and regroup and reassess before... Even if you are a trained police officer, even if you have a sidearm and if you're used to going to the threat as opposed to away from it, isn't there enough there that would cause you to say, "Wait a second, I am not in immediate danger. I don't have to make an immediate decision. What's the smart thing to do so that nobody gets hurt?"

Shawn Vincent: Yup. And what I'm encouraging people to do is even if those signs aren't there, if you're in an escalating situation where the tension is getting high but before you reach a point of no return is make it a best practice. Our friend Bob O'Connor calls it the warrior mindset. I think that includes checking your assumptions before you take the next step and assume that you could be wrong about one of them before you commit to deadly force or putting yourself in the position where you won't have the choice to back away.

Don West: Make no mistake that juries take firearm offenses, especially those involving serious injury or death very seriously. And the first thing I believe the prosecutor will look to even those prosecutors that are proponents of the second amendment and proponents of concealed carry will immediately focus on whether the concealed carrier is responsible. Is there anything we can look to show that they were being reckless or irresponsible or not exercising the high level judgment that you expect someone to have when they're carrying around an instrument with them that can cause immediate death.

Shawn Vincent: Yeah.

Don West: We have seen that theme over and over and over again as we look back at the cases we've talked about.

Shawn Vincent: Well, that's a good point Don and as the psychiatrist says, I think our time's up.

Don West: But we haven't even talked about mom yet.

Shawn Vincent: Well, you may save that for a different day. As always, really enjoy talking with you about these things.

Don West: Thanks Shawn. Look forward to the next time. I hope it's soon. Take care.

Shawn Vincent: Alright. Take care.

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