Re: BART cop shooting - Any Crim Law experts at DU, if so, do you think murder charge will stay?

[HardWorkingDem]

With the information available, what does any criminal law expert think will happen with the murder charge in this incident. I realize it is very early, but what does those in the criminal law area believe? Will a murder charge be able to be proven?

[GreenTea]

1. Uh, is there a doctor in the house?

[Manifestor_of_Light]

2. Yeah I think so.

No self-defense could be used. Suspect was cuffed and on his stomach.

Lots of video, lots of witnesses.

Premeditation, definitely. Intentional and knowing.

First degree murder (5 to 99 or life, in Texas). Known as second degree murder in other states (Texas has a higher degree of murder than first degree, known as capital murder. Capital murder is murder in the commission of another felony, or murder of a peace officer).

That's my opinion. It's premeditated, intentional and knowing.
I have a J.D. but no license to practice law.

[tkmorris]

3. I don't see it

I can see a couple of possible defenses here. There is the "I thought it was my taser" argument, that has already been speculated about. There is also the "I drew my weapon to cover Grant, and it accidentally discharged", gambit. Either one I think will easily fly. For murder you have to prove INTENT, and I really don't see how that is doable in this case. The guy has no motive whatsoever, except old fashioned "I felt like killing somebody today" meanness, which while certainly possible is awfully hard to convince 12 people of unanimously. Unless there is evidence we are not aware of showing his intent to kill (and there could be) I don't see how you get more than manslaughter or whatever equivalent California uses.

[CreekDog]

4. he wasn't even supposed to draw his weapon in this case

you don't point a gun at someone who is not threatening you and why would the officer touching grant pull the gun when there was another officer not touching grant watching the whole thing?

you guys are seeing that cop uniform and projecting your belief onto him that this is all an accident, despite mounting evidence to the contrary.

it's getting annoying.

[acmavm]

6. 'Intent' can be formed in a second. But I doubt that the guy 'intended' to

kill the kid. BUT he did intend to cause bodily harm no matter what weapon he went for. The kid was restrained and there was absolutely no need to draw any weapon of any kind, taser or gun.

[CreekDog]

5. Maybe you are just asking

But are you telling me that any explanation beats the video which shows a restrained, unarmed man and an officer who is ABLE TO LET GO OF HIM AND NOT HAVE THAT MAN MOVE who then shoots him IN THE BACK is less credible than some other explanation that makes it an "accident"?

Do you believe in UFO's too?

Let your eyes see what they see. Just look at the damn thing, stop trying to explain it, just look and observe everything you see.

[HardWorkingDem]

8. Sigh....

Now, how many times can you think of where verdicts come back completely contrary of what a video shows? Of course, the best illustration is that of the Rodney King incident.

And what is the reason for that? Yes, many will scream blatant racism, but at the same time it is forgotten that later on, after emotions have lowered, in the courtroom other issues come out that will muddy the waters.

Jury selection, venue selection, motives, intent, experts - all of this and more are going to come into play. What if a judge with a strict adherence to legal statutes and definitions hears this case? And what if to him, he decides the appropriate charge is not murder but manslaughter. (But like I stated, I don't know enough about California statutes and whether they have something like a 2nd Degree murder charge or not, if so, that might be the more appropriate charge and this is a moot point).


But think of it this way: what if the prosecutor is doing what is called "charging this high" to try and restore some calm. What if he is acting the way he is for a political purpose. And then, what if later on, there is an acquittal because a murder charge can't be sustained in a trial?

What if this cop gets on the stand and successfully tells the jury/judge it was not his intent to pull that trigger, that he was startled into pulling that trigger, or that he did think he had his Taser in his hand, or his weapon did malfunction (and some examiner says his weapon did have a faulty spring in it).

Would you want to see this?

And don't get me wrong, I'm not arguing for nothing to be done. Something certainly deserves to be done and that's why I've sought out the opinions of those with more legal knowledge.

[HardWorkingDem]

11. CreekDog....look at this posting...from Grant's own attorney....

Do you want to ask him if he believes in UFOs too?

[varkam]

7. Well, to prove murder...

The state will have to show a few different things, among them that the act was intentional, deliberate, and pre-meditated (elements of a murder charge) and in addition that the act was both conscious and volitional (elements of a crime in general). They will also have to show cause - that the actions resulted in the prohibited result (which is a no-brainer in this case), harm (again, a no-brainer), and mens rea - which is the required mental component of a crime.

The mens rea for murder can either be intentional, but if the state follows the Model Penal Code, acting knowingly can satisfy the intentional mens rea. Acting knowingly is basically doing something that, while it is not your explicit desire to bring about the intended result, you do it while knowing that there is a practical certainty that the harm will be brought about through your actions.

Depending on the test used for intentional, deliberate, and pre-meditated (i.e. Schrader, Morrin), he might not have had enough time to form those required components. The tests range from basically the twinkle of an eye to the time required for a person in the defendant's position to take a second look at their actions.

All that being said, one of the explanations that I have heard is that the officer believed he was reaching for his taser. I'm not sure how convincing that argument is, because I would assume that the service weapon and the taser are different (i.e. have a different feel, different mechanisms for disengaging the safety, etc) and so a reasonable person in the officer's situation would have realized that he was holding a gun, not a taser.

It's hard to say without knowing all the facts, but my first inclination would be that a murder charge would stick. That being said, prosecutors tend to over-charge (i.e. charge people with crimes that they might have trouble proving at trial) as a means of providing an incentive for the defendant to enter into a plea agreement. In addition, upwards of 90% of all cases end in a plea agreement - so the DAs office might be willing to offer the defendant in this case Murder 2 or voluntary manslaughter (depending on the statute) in exchange for a guilty plea. Especially so since the defendant in this case is a cop (that is, unless the DA is dealing with problems of police brutality and it's an election year - in which case they'll railroad him).

That's just how I see it, anyway.

[Spirochete]

9. Somebody shot Bartcop?

That's odd - he makes no mention of it on his page...

[Disturbed]

10. A plea of Involuntary Manslaughter is most likely.

A Murder trial is unlikely.

[Joanne98]

12. They charged him with 2nd degree murder? He may get it.

Unless they want another RIOT!