ONTD Political

No, Texas Law Does Not Say You Can Shoot an Escort Who Refuses to Have Sex

12:14 pm - 06/11/2013

A misreading of the verdict in a strange and upsetting Texas case has gone viral, since Gawker claimed: “Texas Says It’s OK to Shoot an Escort If She Won’t Have Sex With You.” Texas law does not say that, and the jury didn’t say that either. Pushing the idea that an “Insane Texas Law Made it Legal for a Man to Kill a Prostitute” is irresponsible; it misinforms the public and sends a terrible message to violent misogynists.

It is not in dispute that the defendant, Ezekiel Gilbert, paid the victim, Lenora Frago, $150 for 30 minutes of escort services advertised on Craigslist. After Frago refused to have sex with him, the defendant shot her. Frago was paralyzed and the defendant was charged with aggravated assault.  When she died seven months later Gilbert was indicted for murder instead.
At trial, defense attorneys made the shocking argument that Gilbert was justified in shooting Frago because she had stolen from him and Texas law permits the use of deadly force to defend one’s property at night. That a defense was raised in this case based on Texas’ awful defense of property law is certainly newsworthy and even more reason to reform that law. But there is no evidence that the jury acquitted based on the defense of property law in the first place.

The much more plausible reason for the verdict is that the jury believed the defendant’s claim that he didn’t intend to shoot the victim. Per Texas’ homicide statute, the prosecution needed to prove that Gilbert “intentionally or knowingly” killed Frago or intended to cause her “serious bodily injury.” The defense argued that Gilbert lacked the requisite intent for murder because when he shot at the car as Frago and the owner of the escort service drove away, he was aiming for the tire. The bullet hit the tire and a fragment, “literally the size of your fingernail,” according to Defense Attorney Bobby Barrera, hit Frago. Barrera does not believe the jury acquitted because of the defense of property law. He believes they acquitted because they believed Gilbert didn’t mean to shoot her.

Unless someone has interviewed a juror or can read minds, they cannot claim the jury agreed the killing was justified. And the juries do not “cite” laws. They find facts and decide “guilty” or “not guilty.” And it isn’t accurate to call Frago a “prostitute.” Witnesses for the prosecution testified she was an escort who never agreed to have sex. Rather than siding with the killer’s characterization, writers should at least say “alleged.”

One would expect the jury to find that shooting at a car with an AK-47 is at least “reckless,” in which case he could have been convicted of manslaughter. But the prosecution didn’t charge him with manslaughter, only murder. Manslaughter is a “lesser included offense” of murder and the judge is entitled to instruct the jury if the evidence supports that charge, but it appears she did not. The jury can’t convict on a charge that isn’t before them.

I think Texas’s defense of property law is abhorrent and my gut reaction was that it was a reprehensible defense. This reaction suggests, that you should think twice before hiring me as your defense attorney, sadly. As Professor Michael W. Martin of Fordham Law’s Federal Litigation Clinic reminded me: “If the law allows the defense, the lawyer must use it, if it is viable, unless there is a good strategic reason not to. Otherwise, it is ineffective assistance of counsel. If the lawyer feels like he is ethically barred from using a legal, viable defense, he should ask to be relieved.”

This story looks very different depending on whether you are looking at the law or at the reporting. Remember reporting? People used to get paid to go find facts and tell the public about them. That happens a lot less now. With many commentators and too few reporters, an alarmist story can have a long life in the echo chamber. But there are still some reporters, and a number of them, though probably stretched pretty thin, have engaged in that old-fashioned practice of going to court, making phone calls, interviewing people and checking facts for this very case. The San Antonio Express did not just start covering this case last week, that’s where to start if you want to follow this story as it develops.

This is a terrible story, a woman was killed and no one is going to prison. It is reasonable to be suspicious that prejudice based on her gender, race, or occupation led to that injustice. But all we know thus far is that the defendant received due process and a zealous defense. We don’t know that Texas’s terrible defense of property law had anything to do with him getting off. The vilification of this jury isn’t justified—we should give them the benefit of the doubt that they spent those 11 hours deliberating in good faith and did what they thought the law required. And in our concern for women and victims of violence, we must remember that even admitted killers still have rights.
idemandjustice 11th-Jun-2013 04:23 pm (UTC)
So, the whole thing is still really fucked up, but just for different reasons than previous reporting has led us to believe. :(
asrana 11th-Jun-2013 04:31 pm (UTC)
Maybe? I mean, I get what she's trying to say (I think) but when you hold it up next to a history of oppression and power imbalance and male expectation of/entitlement to sex regardless of the woman's feelings... I know the justice system is supposed to be there for both sides, but it feels really skeevy that her closing point is that killers have rights too.

I guess maybe it isn't meant to feel like comfortable reading, or something.
nextdrinksonme 11th-Jun-2013 04:33 pm (UTC)
Nope, sorry, fuck that shit. You aim a gun at someone, you take the responsibility if you kill them. There's no "I didn't mean to". It's not like she or the car jumped in the way of the bullets or it 'accidentally' went off. He made the decision to aim and fire at the car, and I'm sure he knows that bullets flying at someone (even someone in a car) = high risk of killing them. It's no different than a drive by.

Plus, what the hell did he think would happen if he blew out the tire? The driver could have very well lost control and she still would have ended up dead.

I call bullshit.

Edited at 2013-06-11 04:34 pm (UTC)
mercystars 11th-Jun-2013 05:14 pm (UTC)
gambitia 11th-Jun-2013 05:25 pm (UTC)
If I may quote last night's Daily Show: "We're not saying you broke any laws. We're just saying it's a little weird that you didn't have to."

Shooting a gun at another person, even without the intention to actually hit them, should be a crime. Even if the other person isn't hurt! If the other person is killed--of course it's a crime. Now it sounds like the prosecution did a shit job instead of Texas having a shit law, but still--justice was not done. And that's kind of the entire point.
nitasee 11th-Jun-2013 06:07 pm (UTC)
Yeah, I may have to cross-stitch that quote. It's way too true in way too many cases.
gothic_hamlet 11th-Jun-2013 05:30 pm (UTC)
So is there no "manslaughter" sentencing in Texas or...?
rainbow_fish 11th-Jun-2013 06:07 pm (UTC)
Apparently they didn't charge him with it in the first place.

Which is also fucked up. It's seriously like no one gave a fuck that a woman is dead. :(
rhysande 11th-Jun-2013 05:46 pm (UTC)
So Gilbert didn't mean to kill Frago when he followed her outside with an AK-47 and then sprayed bullets in the car in which she and her manager were sitting and that makes him not guilty of murder? Not buying this or the defense of property excuse.

ginger_maya 11th-Jun-2013 06:20 pm (UTC)

Oh, fuck off with that misogyny apologism drivel. An entitled douchebag aimed a gun at a woman because she refused him sex, pulled the trigger, maimed her, then eventually killed her, and now he's walking away a free man. That's all that matters.
intrikate88 11th-Jun-2013 08:08 pm (UTC)
I love that you used that Justified gif; I feel that Raylan would be side-eyeing all of this SO hard.
bnmc2005 11th-Jun-2013 06:37 pm (UTC)
This needs a media tag.

I am sooooo very tired of lazy journalism.

ETA: But yeah, this whole thing is still bullshit.

Edited at 2013-06-11 06:39 pm (UTC)
asrana 12th-Jun-2013 11:03 am (UTC)
atheistkathleen 11th-Jun-2013 07:41 pm (UTC)
whatever - the jury believed that her taking his money and not having sex with him = theft and therefore its ok to kill her. its a fucked up law and idiot jurors.
moonshaz 11th-Jun-2013 07:48 pm (UTC)
Manslaughter is a “lesser included offense” of murder and the judge is entitled to instruct the jury if the evidence supports that charge, but it appears she did not. The jury can’t convict on a charge that isn’t before them.

freezer 11th-Jun-2013 11:08 pm (UTC)
Okay - so it was the judge, not the DA, who shit the bed WRT the manslaughter charge. Good to know, I suppose...
oumeoumai 11th-Jun-2013 07:55 pm (UTC)
I feel like I have to say this everyday. I don't CARE what your intent was, the RESULT is what is affecting me. :(
rex_dart 11th-Jun-2013 10:02 pm (UTC)
"Intent doesn't matter" is not and should not be a legal principle.
intrikate88 11th-Jun-2013 08:18 pm (UTC)
Okay. So then with as long as this case took, why didn't manslaughter, reckless endangerment iwth a firearm (?) or SOMETHING get put on the table as a charge? If murder-by-intent was the line examined on whether it was crossed or not, why didn't the judge ever replace the charges with something much more relevant to the case? A man was unhappy with a woman who refused to have sex with him, he aimed a gun in her direction and fired it, and she died. Isn't the point of charging someone with something that the charge is relevant to the case? Why wasn't he charged with robbing a bank if charges just get pasted on at random?

I mean I guess what I'm asking through this migraine is something like, did the judge decide this case before it was tried by mis-charging him? Does the bias towards choosing a way that let a white man being lethally violent because he didn't get the sex he thought he was entitled to contaminate the entire verdict and place the judge in a legit position of being questioned for misconduct/incompetence?
maenads_dance 11th-Jun-2013 08:54 pm (UTC)
I believe the prosecutor decides what charges will be brought, and not a judge. IANAL.
that_which 11th-Jun-2013 09:34 pm (UTC)
The vilification of this jury isn’t justified—we should give them the benefit of the doubt that they spent those 11 hours deliberating in good faith

they spent those 11 hours deliberating in good faith

11 hours deliberating

You lost me.

Nope. I'm not seeing where there's a justification for only needing 11 hours* to decide to let someone who pulled a gun, aimed it at the limited amount of space a human being was inhabiting and pulled the trigger off because he feels real bad about it or he has bad aim.

*Presumably including at least an hour for lunch.

Edited at 2013-06-11 09:36 pm (UTC)
lozbabie 12th-Jun-2013 02:16 am (UTC)
It could have take them so long because they believed him guilty but not of murder.

The jury could only convict him of murder. Which is pre-meditated. While this scumbag should be in gaol, I don't find the jury wrong for saying he was t guilty of murder. He was guilty of manslaughter, criminal recklessness and a whole host of other charges. But he wasn't guilty of murder.
crossfire 11th-Jun-2013 09:46 pm (UTC)
OP, can I suggest adding the "opinion piece" tag? It's good for editorials like this.
asrana 12th-Jun-2013 11:03 am (UTC)
tigerdreams 11th-Jun-2013 10:45 pm (UTC)
I'm admittedly not clear on how deliberately pointing a gun at someone and deliberately pulling the trigger can in any way imply an absence of deliberately intent to kill (or at least a willingness to do so), but maybe that's why I'm not a lawyer.

Edited for specificity

Edited at 2013-06-11 10:46 pm (UTC)
its_anya 11th-Jun-2013 10:59 pm (UTC)
Anyone who actually knows about law:
Is it possible for the prosecution to bring both charges of murder and manslaughter at the same time? I.e. try for murder, but if that fails, manslaughter? If so, why wouldn't they have done it? It seems like this situation (where someone has been killed but there's a question of intent) might be a relatively common one...
teaoli 12th-Jun-2013 12:24 am (UTC)
No official legal training beyond what they taught us in J-school and then what I learned on the job – and none of that applies to Texas – so I'm not best person to the one to answer your question, but

1. it's absolutely possible in some parts of the U.S.

2. According the opinion piece above, the judge on this case should have instructed the jury that they were allowed to consider manslaughter as a charge.

3, Because (again) I've had no legal training beyond what applies to my own work, I can't claim that I've completely understood how their penal code would have applied to this case , but it seems as if the opinion writer was correct in that someone should have made manslaughter an option for this jury.
Edited to fix html fail.

Edited at 2013-06-12 12:26 am (UTC)
dziga123 11th-Jun-2013 11:24 pm (UTC)
Though this moron, to say the list, knowingly pulled a gun and shot at them over $150, the fact that he hit the tire, and then a fragment hit the girl in the car, change this story a lot.
Not giving the jury manslaughter option is a big mistake of prosecution.
keeni84 12th-Jun-2013 01:26 am (UTC)
And in our concern for women and victims of violence, we must remember that even admitted killers still have rights.

This is the weakest line of the article, even though it makes valid points.
nimberlane 12th-Jun-2013 12:34 pm (UTC)
Sometimes I think living in Louisiana is bad.

Then I remember the alternative could be living in Texas and I feel instantly better.
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