On one level, the whole thing's absurd, that there are so many legal questions to argue about as we approach former Dallas Police Department Officer Amber Guyger's murder trial. The facts are not in dispute. Guyger shot and killed Botham Jean almost a year ago, as Jean hung out alone in his apartment on a Thursday night.
Seemingly, Guyger should face some punishment for killing Jean. But thanks to Texas law and what's sure to be a robust defense, there's a chance that she'll never spend a night in jail.
Jury selection for Guyger's murder trial is scheduled to begin Sept. 6, a year to the day since she killed Jean. While the trial judge in the case, Tammy Kemp, has issued a strict gag order, documents filed by both Guyger's lawyers and the Dallas County District Attorney's Office show the road on which the case will travel, if it goes to trial.
Late last week, Guyger's lawyers provided a list of expert witnesses they intend to rely on during the trial. It's clear from the list that the defense is going to attempt to convince the jury that Guyger made what's known as a "mistake-of-fact."
It's not exactly a surprise tactic. Guyger only shot Jean, she told police, because she believed she'd entered her own apartment and encountered an intruder when she'd actually barged into someone else's home. Based on this mistake, she exercised what she believed was her legal right to defend herself and her property.
"She clearly, based on what we do know, has the defense of what we call mistake-of-fact," Dallas defense attorney Pete Schulte, a former DeSoto cop and Dallas County prosecutor, told the Observer last year. "If she can show to a jury that her mistake-of-fact led to this and the jury finds that it was reasonable, then she's entitled to an acquittal, because our criminal laws don't want to criminalize accidents. That's for the civil courts."
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To that end, the defense's expert list includes Charles Czeisler, a Harvard-based sleep researcher with expertise in circadian and sleep disorders. Guyger was reportedly on the tail end of a 15-hour shift when she shot Jean, and the Dallas Police Association has cited fatigue as a potential reason for the shooting to the media.
In addition to Czeisler, Guyger's defense also lists Marc Green as a potential witness. Green, from Toronto, has made frequent appearances in U.S. courts, according to his CV, in issues of human perception, like eyewitness identification, visibility and reaction times. Michael Haag, a shooting scene reconstruction specialist from New Mexico, is also on the defense list.
Prosecutors have asked Kemp to hold a hearing to evaluate the prospective defense witnesses. It's clear that, if the experts are approved and if the case goes to trial, the defense is going to insist that it was reasonable for Guyger to park her car on the wrong floor of a parking garage, walk out of the garage and up to the wrong apartment, open its door and shoot the man inside, believing all the while that he was in her own apartment. If the jury finds those actions were reasonable, then the shooting could be justified under Texas law.
"(Texas residents) don't have to wait to be threatened. They don't have to have the intruder show a gun or to threaten harm to them," Schulte said. "It's their castle. They can fire and ask questions later. Not just because she's a cop. It's anybody. The question comes down to when the facts aren't what they're perceived to be. Then you have to look at, 'Was the mistake-of-fact reasonable given the circumstances?' That's going to be the crux of the trial."